1
EXHIBIT 4.21
FIRST AMENDMENT TO SECOND AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED REVOLVING
CREDIT AGREEMENT (this "Amendment") is made as of June 18, 1999, by and among
EOP OPERATING LIMITED PARTNERSHIP (the "Borrower"), EQUITY OFFICE PROPERTIES
TRUST (the "Guarantor"), NATIONSBANK, N.A., as Administrative Agent for the
Banks (the "Administrative Agent"), XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
THE CHASE MANHATTAN BANK, as Documentation Agent and as Managing Agent, X.X.
XXXXXX SECURITIES INC., as Syndication Agent, THE BANK OF NOVA SCOTIA,
COMMERZBANK AKTIENGESELLSCHAFT, DRESDNER BANK AG, NEW YORK AND CAYMAN BRANCHES,
PNC BANK, NATIONAL ASSOCIATION, and UNION BANK OF SWITZERLAND, NEW YORK BRANCH,
as Managing Agents, CREDIT LYONNAIS, NEW YORK BRANCH, FLEET NATIONAL BANK, and
U.S. BANK NATIONAL ASSOCIATION, as Co-Agents, and the BANKS party hereto.
W I T N E S S E T H:
WHEREAS, the Borrower has executed and delivered to the Agents
(or their predecessors), the Managing Agents, certain of the Co-Agents and the
Banks that certain Second Amended and Restated Revolving Credit Agreement dated
as of May 29, 1998, by and among the Borrower, certain of the Banks, the
Managing Agents, the Co-Agents and the Agents (the "Credit Agreement");
WHEREAS, the Borrower has requested that the Banks agree to
modify the Credit Agreement in order to amend certain provisions therein, upon
the terms and conditions set forth herein, and the Administrative Agent has
recommended that such modification be approved by the Banks.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties do hereby
agree as follows:
1. Definitions. All capitalized terms not otherwise defined
herein shall have the meanings ascribed to them in the Credit Agreement.
2. Amendments.
(a) The definition of "Applicable Margin" set forth in the
Credit Agreement is hereby amended by adding the following clause at the end of
the first sentence thereof:
"; provided, however, that, during the twelve (12) month
period following the closing of an Identified Merger or
Acquisition (as hereinafter defined), if the ratio of Total
Liabilities to Total Asset Value of the Borrower at any time
exceeds 0.50:1, then the Applicable Margin for Euro-Dollar
Loans made or outstanding during the period that such ratio
exceeds 0.50:1 shall be Applicable Margin set forth on the
table below plus 0.20%.
2
(b) The definition of "Documentation Agent" set forth in the
Credit Agreement is hereby deleted and the following is substituted therefor:
"Documentation Agent" means The Chase Manhattan Bank, in its
capacity as Documentation Agent hereunder, and its permitted
successors in such capacity in accordance with the terms of
this Agreement.
(c) The definition of "Joint Venture Subsidiary" is hereby
amended by (1) inserting the word "substantially" between "is" and "controlled"
in clause (ii) of the first sentence thereof, and (2) inserting the following
clause at the end of the first sentence thereof: ", 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."
(d) The definition of "Unencumbered Asset Value" is hereby
amended by (1) inserting the words "the sum of" after the word "means" in the
first line thereof, (2) inserting the following words after "(i)" in the first
line thereof: "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, the
amount of Cash and Cash Equivalents attributable to such Joint Venture
Subsidiary shall be reduced to a percentage equal to the Borrower's percentage
ownership interest (whether direct or indirect) in such Joint Venture
Subsidiary), plus (ii)", (3) deleting "$1.50" from the fifth line thereof and
substituting therefor "$0.50", (4) renumbering clause (ii) in the tenth line
thereof as clause (iii) and revising all cross-references to such clause within
such definition, (5) deleting "twenty-five percent (25%)" from line 23 thereof
and substituting therefor "twenty percent (20%)", and (6) deleting "twenty-five
percent (25%)" from line 27 thereof and substituting therefor "fifteen percent
(15%)."
(e) Section 5.8(a) of the Credit Agreement is hereby deleted
in its entirety and substituted therefor is the following covenant:
(a) Total Liabilities to Total Asset Value. The Borrower shall
not permit the ratio of Total Liabilities to Total Asset Value
of Borrower to exceed 0.50:1 at any time except for the twelve
(12) month period described in the following sentence. During
the twelve (12) month period following the closing of the
Identified Merger or Acquisition, Borrower shall not permit
the ratio of Total Liabilities to Total Asset Value of the
Borrower to exceed 0.55:1. As used in this Agreement, the term
"Identified Merger or Acquisition" shall mean the first merger
or acquisition by Borrower or any Subsidiary which Borrower
has designated in writing to the Administrative Agent as the
Identified Merger or Acquisition at least thirty (30) days
prior to the closing of such merger or acquisition and for
which Borrower has, prior to the closing of such merger or
acquisition, provided the Administrative Agent with
3
Borrower's projections for the twelve (12) month period
following such merger or acquisition, after giving effect to
such merger or acquisition, outlining in reasonable detail the
anticipated performance of Borrower during such twelve (12)
month period and anticipated compliance with the requirements
of Section 5.8 hereof during such twelve (12) month period.
(f) Section 5.8(j) of the Credit Agreement is hereby amended
by deleting "fifteen percent (15%)" from the sixth line thereof and substituting
therefor "twenty percent (20%)".
3. Confirmation of Guaranties. Guarantor hereby acknowledges
and agrees that the Amended and Restated Guaranty of Payment - No. 1 dated as of
May 29, 1998 and the Amended and Restated Guaranty of Payment - No. 2 dated as
of May 29, 1998, each entered into in connection with the Credit Agreement, and
the Guarantor's obligations under each such guaranty, continue in full force and
effect notwithstanding this Amendment.
4. Representations and Warranties. The Borrower hereby
represents and warrants to the Banks that no Default or Event of Default exists
under the Credit Agreement and that the representations and warranties of the
Borrower set forth in the Credit Agreement are true and correct on and as of the
date hereof, except to the extent that such representations and warranties
expressly speak only as of a prior date, in which case such representations and
warranties were true and correct on and as of such prior date.
5. Effective Date. This Amendment shall become effective upon
receipt by the Administrative Agent 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).
6. Entire Agreement. This Amendment constitutes the entire and
final agreement among the parties hereto with respect to the subject matter
hereof and there are no other agreements, understandings, undertakings,
representations or warranties among the parties hereto with respect to the
subject matter hereof except as set forth herein.
7. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the law of the State of Illinois.
8. Counterparts. This Amendment may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
agreement, and any of the parties hereto may execute this Amendment by signing
any such counterpart.
9. Headings, Etc. Section or other headings contained in this
Amendment are for reference purposes only and shall not in any way affect the
meaning or interpretation of this Amendment.
4
10. No Further Modifications. Except as modified herein, all
of the terms and conditions of the Credit Agreement, as modified hereby shall
remain in full force and effect and, as modified hereby, the Borrower confirms
and ratifies all of the terms, covenants and conditions of the Credit Agreement
in all respects.
Signature Pages to Follow
5
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized officers as of the
day and year first above written.
EOP OPERATING LIMITED PARTNERSHIP, a
Delaware limited partnership
By: Equity Office Properties Trust, a
Maryland real estate investment trust,
its managing general partner
By: /s/ XXXXXXX X. XXXXXXX
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
WITH RESPECT TO
SECTION 3 HEREOF
ONLY: EQUITY OFFICE PROPERTIES TRUST
By: /s/ XXXXXXX X. XXXXXXX
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
THE BANK OF NOVA SCOTIA, as a Managing
Agent and as a Bank
By: /s/ X.X. XXXXX
Name: X.X. Xxxxx
Title: Sr. Relationship Manager
Commitment: $65,000,000
COMMERZBANK AKTIENGESELLSCHAFT, as a
Managing Agent and as a Bank
By: /s/ XXXXXXX X. XXXXXXX
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
By: /s/ XXXXX XXXXXXXX
Name: Xxxxx Xxxxxxxx
Title: Assistant Treasurer
Commitment: $65,000,000
DRESDNER BANK AG, NEW YORK AND CAYMAN
BRANCHES, as a Managing Agent and as Bank
By: /s/ XXXXXXX X. XXXXX
Name: Xxxxxxx X. Xxxxx
Title: Vice President
By: /s/ XXXX X. XXXXXXX
Name: Xxxx X. Xxxxxxx
Title: Vice President
Commitment: $65,000,000
PNC BANK, NATIONAL ASSOCIATION, as a
Managing agent and as a bank
By: /s/ XXXXXXX X. XXXXX
Name: Xxxxxxx X. Xxxxx
Title: Vice President
Commitment: $65,000,000
6
NATIONSBANK, N.A., as Administrative
Agent, as Swingline Lender and as a Bank
By: /s/ XXXXXXX XXXXXXXXXX
Name: Xxxxxxx Xxxxxxxxxx
Title: Vice President
Commitment: $138,000,000
UBS AG, STAMFORD BRANCH,
successor-in-interest to Union Bank of
Switzerland, New York Branch, as a
Managing Agent and as a Bank
By: /s/ XXXXXXX X. XXXX
Name: Xxxxxxx X. Xxxx
Title: Executive Director
By: /s/ XXXXX XXXXXXX
Name: Xxxxx Xxxxxxx
Title: Director
Commitment: $65,000,000
CREDIT LYONNAIS, NEW YORK BRANCE, as a
Co-Agent and as a Bank
By: /s/ XXXXX X. XXXXXXXXXX
Name: Xxxxx X. Xxxxxxxxxx
Title: Senior Vice President
Commitment: $54,000,000
FLEET NATIONAL BANK, as a Co-Agent and as
a Bank
By: /s/ XXXXXX X. XXXXXX
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Commitment: $54,000,000
BANK ONE, ILLINOIS, N.A., as a Bank
By: /s/ XXXX XXXXX
Name: Xxxx Xxxxx
Title: Vice President
Commitment: $50,000,000
U.S. BANK NATIONAL ASSOCIATION,
as a Co-Agent and as a Bank
By:
Name:
Title:
Commitment: $54,000,000
BAYERISCHE HYPO-UND VEREINSBANK AG,
as successor by Merger to
BAYERISCHE HYPOTHEKEN-UND WECHSEL-BANK
AKTIENGESELLSCHAFT, as a Bank
By: /s/ XXXXXX X. XXXXX
Name: Xxxxxx X. Xxxxx
Title: Managing Director
By: /s/ XXXXXX X. XXXXXX
Name: Xxxxxx X. Xxxxxx
Title: Director
Commitment: $50,000,000
7
THE CHASE MANHATTAN BANK, as
Documentation Agent, as a Managing Agent
and as a Bank
By: /s/ XXXX X. XXXXXXXXXX
Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
Commitment: $65,000,000
BANKBOSTON, N.A., as a Bank
By: /s/ XXXXXXX X. XXXXXXX
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Officer
Commitment: $31,000,000
LASSALE NATIONAL BANK, as a Bank
By: /s/ XXXXX XXXXXXXX
Name: Xxxxx Xxxxxxxx
Title: A.V.P.
Commitment: $30,000,000
MELLON BANK, as a Bank
By: /s/ XXXXXXX XXXXXX
Name: Xxxxxxx Xxxxxx
Title: Vice President
Commitment: $30,000,000
UNION BANK OF CALIFORNIA, N.A., as a Bank
By: /s/ XXXXX XXXXXXXXX
Name: Xxxxx Xxxxxxxxx
Title: Vice President
Commitment: $30,000,000
THE INDUSTRIAL BANK OF JAPAN, LIMITED, as
a Bank
By: /s/ XXXXXXX XXXX
Name: Xxxxxxx Xxxx
Title: Vice President
Commitment: $20,000,000
8
X.X. XXXXXX SECURITIES, INC., as
Syndication Agent
By: /s/ XXXXX X. XXX
Name: Xxxxx X. Xxx
Title: Vice President
XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, as a Bank
By: /s/ XXXXXX XXXXXXXXX
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
Commitment: $69,000,000
