Exhibit 10.2
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AMENDMENT NO. 1 TO
REVOLVING CREDIT AGREEMENT
This AMENDMENT NO. 1 TO REVOLVING CREDIT AGREEMENT (this "Amendment
No. 1") is made as of April 30, 1997 by and among (a) Beacon Properties, L.P.
(the "Borrower"), (b) BankBoston, N.A., f/k/a The First National Bank of Boston
("BankBoston"), USTrust ("USTrust"), Xxxxx Fargo Bank, National Association
("Xxxxx"), BHF-BANK Aktiengesellschaft ("BHF"), Fleet National Bank ("Fleet"),
The First National Bank of Chicago ("First Chicago"), Commerzbank
Aktiengesellschaft, New York Branch ("Commerzbank"), Mellon Bank, N.A.
("Mellon"), PNC Bank, National Association ("PNC"), Comerica Bank ("Comerica"),
Union Bank of California, N.A. ("Union") and the other lending institutions
which may become parties to the Credit Agreement (as defined below)
(collectively, the "Banks"), and (c) BankBoston, as Agent (in such capacity, the
"Agent") for the Banks.
WHEREAS, the Borrower, certain of the Banks and the Agent are parties
to a Revolving Credit Agreement dated as of March 31, 1997 (the "Credit
Agreement"), pursuant to which the Banks have agreed to make loans to the
Borrower;
WHEREAS, the Borrower has requested that the Banks and the Agent make
certain amendments to the Credit Agreement and certain related Loan Documents,
and the Banks and the Agent are willing to amend certain of the provisions of
the Credit Agreement and certain other Loan Documents upon the terms set forth
herein;
WHEREAS, Xxxxx, Fleet, First Chicago, Commerzbank, BHF and Comerica
desire to become Banks under the Credit Agreement pursuant to Assignment and
Assumption Agreements of even date herewith, and USTrust, Mellon, PNC and Union
desire to increase their respective Commitments under the Credit Agreement
pursuant to Assignment and Assumption Agreements of even date herewith; and
NOW, THEREFORE, in consideration of the foregoing premises, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and fully intending to be legally bound
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by this Amendment No. 1, the parties agree to amend the Credit Agreement as
follows:
1. Definitions. Capitalized terms used herein without definition shall
have the meanings assigned to such terms in the Credit Agreement.
2. Amendments to the Credit Agreement. Effective as of the Effective
Date (as hereinafter defined), the Credit Agreement is hereby amended in the
following respects:
2.1. The following new definition is inserted immediately following
the definition of "Agreement of Limited Partnership of the Borrower" set forth
in Section 1.1 of the Credit Agreement:
"Amendment No. 1. Amendment No. 1 to Revolving Credit Agreement dated
as of April 30, 1997 among the Borrower, the Banks and the Agent."
2.2. The definition of "Loan Documents" set forth in Section 1.1 of
the Credit Agreement is hereby amended by inserting in the first line thereof,
immediately following the words "this Agreement," contained therein, the words
"Amendment No. 1,".
2.3. The definition of "Revolving Credit Notes" set forth in Section
1.1 of the Credit Agreement is hereby amended by deleting the amount
"$300,000,000" set forth in the third line thereof and substituting in place
thereof the amount "$350,000,000".
2.4. The definition of "Total Commitment" set forth in Section 1.1 of
the Credit Agreement is hereby amended by deleting the amount "$300,000,000" set
forth in the third line thereof and substituting in place thereof the amount
"$350,000,000".
2.5. All references in the Credit Agreement and the other Loan
Documents to "The First National Bank of Boston" are hereby amended to be
references to "BankBoston, N.A., f/k/a The First National Bank of Boston".
2.6. Schedule 1.3 to the Credit Agreement is hereby amended by
deleting such Schedule 1.3 in its entirety and substituting the Schedule 1.3
attached hereto
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in place thereof. From and after the Effective Date, each of the
Banks listed on Schedule 1.3 attached hereto shall be a Bank under the Credit
Agreement and have the rights and obligations of a Bank thereunder.
3. Representations and Warranties. The Borrower hereby represents and
warrants as follows:
3.1. Representations in Loan Documents. Each of the representations
and warranties made by or on behalf of the Borrower or the Guarantors in any of
the Loan Documents was true and correct when made and is true and correct on and
as of the date hereof (except to the extent of changes resulting from
transactions contemplated or not prohibited by the Credit Agreement or the other
Loan Documents and changes occurring in the ordinary course of business, and
except to the extent that such representations and warranties relate expressly
to an earlier date) with the same full force and effect as if each of such
representations and warranties had been made by the Borrower or the Guarantors
on the date hereof and in this Amendment No. 1.
3.2. Defaults. No Default or Event of Default exists on the date
hereof (after giving effect to all of the arrangements and transactions
contemplated by this Amendment No. 1).
3.3. Binding Effect of Documents. Each of this Amendment No. 1, the
Amended and Restated Revolving Credit Notes of even date herewith and the
Revolving Credit Notes of even date herewith has been duly executed and
delivered by the Borrower and is in full force and effect as of the date hereof,
and the respective agreements and obligations of the Borrower contained herein
and therein constitute the legal, valid and binding obligations of the Borrower,
enforceable against it in accordance with their respective terms, subject only
to applicable bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting generally the enforcement of creditors' rights and to
the fact that the availability of the remedy of specific performance or
injunctive relief is subject to the discretion of the court before which any
proceeding therefor may be brought.
4. Provisions Of General Application.
4.1. No Other Changes. Except as otherwise expressly provided or
contemplated by this Amendment No. 1, all of the terms, conditions and
provisions of the Credit Agreement and the other Loan Documents remain
unaltered. The Credit Agreement and this Amendment No. 1 shall be read and
construed as one agreement. The
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making of the amendments in this Amendment No. 1 does not imply any obligation
or agreement by the Agent or any Bank to make any other amendment, waiver,
modification or consent as to any matter on any subsequent occasion.
4.2. Governing Law. This Amendment No. 1 is intended to take effect as
a sealed instrument and shall be deemed to be a contract under the laws of the
Commonwealth of Massachusetts. This Amendment No. 1 and the rights and
obligations of each of the parties hereto are contracts under the laws of the
Commonwealth of Massachusetts and shall for all purposes be construed in
accordance with and governed by the laws of such Commonwealth (excluding the
laws applicable to conflicts or choice of law).
4.3. Assignment. This Amendment No. 1 shall be binding upon and inure
to the benefit of each of the parties hereto and their respective permitted
successors and assigns.
4.4. Counterparts. This Amendment No. 1 may be executed in any number
of counterparts, but all such counterparts shall together constitute but one and
the same agreement. In making proof of this Amendment No. 1, it shall not be
necessary to produce or account for more than one counterpart thereof signed by
each of the parties hereto.
4.5. Conditions Precedent. The effectiveness of this Amendment No. 1
is subject to satisfaction of the following conditions precedent (such date on
which such conditions precedent have been satisfied being referred to herein as
the "Effective Date"):
(i) execution and delivery to the Agent by the Borrower, the Banks and
the Agent, and acknowledgment by the Guarantors, of this Amendment No. 1;
(ii) execution and delivery to the Agent by BankBoston and each of
Xxxxx, USTrust, Fleet, First Chicago, BHF, Commerzbank, Mellon, PNC, Comerica
and Union of Assignment and Assumption Agreements, in form and substance
satisfactory to such Banks;
(iii) execution and delivery to the Agent by the Borrower of (A)
Amended and Restated Revolving Credit Notes in favor of each of BankBoston,
USTrust, PNC, Mellon and Union, and (B) Revolving Credit Notes in favor of each
of Xxxxx, Fleet, First Chicago, BHF, Commerzbank and Comerica, each in form and
substance satisfactory to such Banks;
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(iv) execution and delivery to the Agent of legal opinions, addressed
to the Agent and the Banks, of Goulston & Storrs, P.C., counsel to the Borrower
and the Guarantors, and Xxxxxxx, Procter & Xxxx LLP, counsel to Beacon
Properties Corporation, in form and substance satisfactory to the Agent and the
Banks; and
(v) receipt by the Agent of a certificate from an officer of Beacon
Properties Corporation as to organizational documents, authorizing resolutions
and incumbency of officers of each of the Borrower and the Guarantors, in form
and substance satisfactory to the Agent.
[remainder of page left blank intentionally]
IN WITNESS WHEREOF, the undersigned have duly executed and delivered
this Amendment No. 1 as of the date first set forth above.
BEACON PROPERTIES, L.P.
By: Beacon Properties Corporation,
its general partner
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
BANKBOSTON, N.A., f/k/a THE FIRST
NATIONAL BANK OF BOSTON,
individually and as Agent
By:
------------------------------------------
Name:
Title:
XXXXX FARGO BANK, NATIONAL
ASSOCIATION
By:
------------------------------------------
Name:
Title:
FLEET NATIONAL BANK
By:
------------------------------------------
Name:
Title:
IN WITNESS WHEREOF, the undersigned have duly executed and delivered
this Amendment No. 1 as of the date first set forth above.
BEACON PROPERTIES, L.P.
By: Beacon Properties Corporation,
its general partner
By:
------------------------------------------
Name:
Title:
BANKBOSTON, N.A., f/k/a THE FIRST
NATIONAL BANK OF BOSTON,
individually and as Agent
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Director
XXXXX FARGO BANK, NATIONAL
ASSOCIATION
By:
------------------------------------------
Name:
Title:
FLEET NATIONAL BANK
By:
------------------------------------------
Name:
Title:
IN WITNESS WHEREOF, the undersigned have duly executed and delivered
this Amendment No. 1 as of the date first set forth above.
BEACON PROPERTIES, L.P.
By: Beacon Properties Corporation,
its general partner
By:
------------------------------------------
Name:
Title:
BANKBOSTON, N.A., f/k/a THE FIRST
NATIONAL BANK OF BOSTON,
individually and as Agent
By:
------------------------------------------
Name:
Title:
XXXXX FARGO BANK, NATIONAL
ASSOCIATION
By: /s/ X.X. Xxxx III
------------------------------------------
Name: X.X. Xxxx III
Title: Vice President
FLEET NATIONAL BANK
By:
------------------------------------------
Name:
Title:
IN WITNESS WHEREOF, the undersigned have duly executed and delivered
this Amendment No. 1 as of the date first set forth above.
BEACON PROPERTIES, L.P.
By: Beacon Properties Corporation,
its general partner
By:
------------------------------------------
Name:
Title:
BANKBOSTON, N.A., f/k/a THE FIRST
NATIONAL BANK OF BOSTON,
individually and as Agent
By:
------------------------------------------
Name:
Title:
XXXXX FARGO BANK, NATIONAL
ASSOCIATION
By:
------------------------------------------
Name:
Title:
FLEET NATIONAL BANK
By: /s/ Xxxxx X. Xxxx
------------------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President
COMMERZBANK AKTIENGESELLSCHAFT,
NEW YORK BRANCH
By: /s/ Xxxxxxx X. Traynof
------------------------------------------
Name: Xxxxxxx X. Traynof
Title: Vice President
By: /s/ Xxxxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Assistant Vice President
PNC BANK, NATIONAL ASSOCIATION
By:
------------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By:
------------------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By:
------------------------------------------
Name:
Title:
MELLON BANK, N.A.
By:
------------------------------------------
Name:
Title:
USTRUST
By:
------------------------------------------
Name:
Title:
COMMERZBANK AKTIENGESELLSCHAFT,
NEW YORK BRANCH
By:
------------------------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By:
------------------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By:
------------------------------------------
Name:
Title:
MELLON BANK, N.A.
By:
------------------------------------------
Name:
Title:
USTRUST
By:
------------------------------------------
Name:
Title:
COMMERZBANK AKTIENGESELLSCHAFT,
NEW YORK BRANCH
By:
------------------------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By:
------------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Xxxxxxx XxXxxxxxx
------------------------------------------
Name: Xxxxxxx XxXxxxxxx
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By:
------------------------------------------
Name:
Title:
MELLON BANK, N.A.
By:
------------------------------------------
Name:
Title:
USTRUST
By:
------------------------------------------
Name:
Title:
COMMERZBANK AKTIENGESELLSCHAFT,
NEW YORK BRANCH
By:
------------------------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By:
------------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By:
------------------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By: /s/ D. Xxx Xxxxxxx
------------------------------------------
Name: D. Xxx Xxxxxxx
Title: Vice President & Manager
MELLON BANK, N.A.
By:
------------------------------------------
Name:
Title:
USTRUST
By:
------------------------------------------
Name:
Title:
COMMERZBANK AKTIENGESELLSCHAFT,
NEW YORK BRANCH
By:
------------------------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By:
------------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By:
------------------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By:
------------------------------------------
Name:
Title:
MELLON BANK, N.A.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: First Vice President
USTRUST
By:
------------------------------------------
Name:
Title:
COMMERZBANK AKTIENGESELLSCHAFT,
NEW YORK BRANCH
By:
------------------------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By:
------------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By:
------------------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By:
------------------------------------------
Name:
Title:
MELLON BANK, N.A.
By:
------------------------------------------
Name:
Title:
USTRUST
By: /s/ Xxxxx X. Xxxx
------------------------------------------
Name: Xxxxx X. Xxxx
Title: Executive Vice President
BHF-BANK AKTIENGESELLSCHAFT
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Vice President
By: /s/ Xxxxxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Vice President
COMERICA BANK
By:
------------------------------------------
Name:
Title:
BHF-BANK AKTIENGESELLSCHAFT
By:
------------------------------------------
Name:
Title:
By:
------------------------------------------
Name:
Title:
COMERICA BANK
By: /s/ Xxxxx Xxxxxx
------------------------------------------
Name: Xxxxx Xxxxxx
Title: Account Officer
Each Guarantor hereby acknowledges the foregoing Amendment No. 1 and
reaffirms its guaranty of the Obligations (as defined in the Guaranty executed
and delivered by such Guarantor) under the Credit Agreement and the other Loan
Documents, each as amended hereby or in connection herewith, in accordance with
(and subject to any limitations on liability contained in) the Guaranty executed
and delivered by such Guarantor.
BEACON PROPERTIES CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
1333 H STREET, L.P.
By: Beacon Property Management, L.P.,
its general partner
By: BCN Management, LLC,
its general partner
By: Beacon Properties Corporation,
a member
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
BURLINGTON HOLDING, L.P.
By: Beacon Properties, L.P., its
general partner
By: Beacon Properties Corporation,
its general partner
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Vice President and
Treasurer
