Boston Properties (BXP) 10-Q2024 Q3 Quarterly report

SECOND AMENDMENT TO CREDIT AGREEMENT

WHEREAS, loans and/or other extensions of credit under the Existing Credit Agreement denominated in Canadian Dollars incur or are permitted to incur interest, fees, commissions or other amounts based on CDOR in accordance with the terms of the Existing Credit Agreement; and

WHEREAS, CDOR has been or will be replaced with the Canadian Benchmark Replacement in accordance with the Existing Credit Agreement and, in connection therewith, the Administrative Agent is exercising its right to make certain Canadian Benchmark Replacement Conforming Changes pursuant to this Amendment.

NOW THEREFORE, in accordance with the terms of the Existing Credit Agreement, this Amendment is entered into by the Administrative Agent.

BOFA SECURITIES, INC.

and

THE BANK OF NEW YORK MELLON
DEUTSCHE BANK SECURITIES INC.
MORGAN STANLEY SENIOR FUNDING, INC.
PNC BANK, NATIONAL ASSOCIATION
U.S. BANK NATIONAL ASSOCIATION
WELLS FARGO BANK, N.A.
TD BANK, N.A.
BANK OF NOVA SCOTIA
TRUIST BANK
CITIBANK, N.A.
AS DOCUMENTATION AGENTS

MIZUHO BANK, LTD.
AS MANAGING AGENTS

TABLE OF CONTENTS

Exhibits to Ninth Amended and Restated Credit Agreement

A    Form of Revolving Credit Note

B    Form of Loan Request

C    Forms of Compliance Certificate

D    Forms of Competitive Bid Documents

E    Form of Closing Certificate

F    Form of Assignment and Assumption Agreement

G    Certificate Regarding Leverage

H    Forms of U.S. Tax Compliance Certificates

I    Form of Sustainability Metric Annual Certificate

J    Form of Notice of Prepayment

Schedules to Ninth Amended and Restated Credit Agreement

Schedule 1        Banks

Schedule 2        Existing Letters of Credit

Schedule 3        Existing Bid Rate Advances

Schedule 4        CBD Properties

Schedule 7.7        Litigation

Schedule 7.16        Employee Benefit Plans

Schedule 8.5(b)    Environmental Matters

Schedule 9.1(e)    BPI Liabilities

Schedule 9.3        Investments

Schedule 21        Notice Addresses

(a)    Revolving Credit Loans, the spread, expressed in basis points, over the Base Rate, Daily Simple SOFR, Term SOFR, the Alternative Currency Daily Rate or Alternative Currency Term Rate, as applicable, and used in calculating the interest rate applicable thereto, as applicable, which spread shall vary from time to time in relationship to variances in the Debt Ratings as set forth below. The applicable Debt Ratings and spreads for each Type of Revolving Loans are as set forth in the following table:

In the event only one of S&P or Moody’s is one of the two Rating Agencies as required hereunder at the time of reference, the Debt Rating from the other Rating Agency for purposes of establishing the spread for any Revolving Loan shall be the rating level utilized by such other Rating Agency which corresponds to the comparable rating levels set forth in the table above. In the event the Debt Ratings from the Rating Agencies are not equivalent, the Applicable Margin will be determined (i) based on the higher of the two Debt Ratings if the lower Debt Rating is no more than one level lower than the higher Debt Rating, and (ii) based on the level that is one

rating level higher than the lower Debt Rating if the lower Debt Rating is more than one level lower than the higher Debt Rating. Adjustments in the Applicable Margin based upon a change in a Debt Rating level shall be effective on the first day following the change in such Debt Rating.

the applicable Revolving Credit Banks or Fronting Banks, as the case may be, promptly (and in any event, within five (5) Business Days) following written demand by the Agent (including such any demand made at the direction of the Required Banks), (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, immediately, automatically and without further action by the Agent, any Revolving Credit Banks or any Fronting Bank), an amount equal to the excess of the amount of interest and fees that should have been paid for such period (or relevant portion thereof then elapsed in respect of which payments of interest and/or fees were previously made) over the amount of interest and fees actually paid for such period (or relevant portion thereof). Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, (i) any additional amounts required to be paid pursuant to the immediately preceding sentence shall not be due and payable until a written demand is made for such payment by the Agent, (ii) any nonpayment of such additional amounts prior to such demand for payment by Agent shall not constitute a Default (whether retroactively or otherwise), and (iii) none of such additional amounts shall be deemed overdue prior to such a demand or shall accrue interest at the Default Rate prior to such a demand.

Sustainability Metric Pricing Grid

(i)    the sum of: (i) Term CORRA and (ii) 0.29547% (29.547 basis points) for an Available Tenor of one-month’s duration, and 0.32138% (32.138 basis points) for an Available Tenor of three-months’ duration, or

(ii)    the sum of: (i) Daily Compounded CORRA and (ii) 0.29547% (29.547 basis points) for an Available Tenor of one-month’s duration, and 0.32138% (32.138 basis points) for an Available Tenor of three-months’ duration; and

affected Banks in accordance with the terms of §28 and (ii) has been approved by the Required Banks, the Required Revolving Credit Banks or the Required Term Banks, as applicable.

applicable, and the definition of Relevant Rate have been amended to reflect the appropriate rate for such currency, such currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of any Letter of Credit issuances solely by such Fronting Bank. If the Agent shall fail to obtain consent to any request for an additional currency under this §1.4, the Agent shall promptly so notify the Borrower.

obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Bank and the accounts and records of the Agent in respect of such matters, the accounts and records of the Agent shall control in the absence of manifest error. Upon the request of any Bank made through the Agent, the Borrower shall execute and deliver to such Bank (through the Agent) a Revolving Credit Note and/or an Incremental Term Note, as applicable, which shall evidence such Bank’s Revolving Credit Loans and/or Incremental Term Loans, as the case may be, in addition to such accounts or records. Each Bank may attach schedules to its Notes and endorse thereon the Drawdown Date, Type (if applicable), amount, currency and maturity of its Committed Loans and payments with respect thereto.

Interest Period in conformity with the requirements of §2.9(e)(iii)) would be to cause the aggregate outstanding principal amount of the applicable Bid Rate Advance to exceed the amount specified therefor in the related Bid Rate Advance Borrowing Notice, then, unless otherwise agreed by the Borrower, the Agent and such Banks, such Competitive Bids shall be accepted as nearly as possible in proportion to the amount offered by each such Bank in respect of such Interest Period, with such accepted amounts being rounded to the nearest whole multiple of $1,000,000.

Commitment Percentage is decreasing such amounts as are necessary so that each such Revolving Credit Bank’s participation in existing Revolving Credit Loans will be equal to its adjusted Commitment Percentage, and (iii) if the effective date of such Increase occurs on a date other than the last day of an Interest Period applicable to any outstanding Term Rate Committed Loan, the Borrower will be responsible for Breakage Costs and any other amounts payable pursuant to §5.9 on account of the payments made pursuant to clause (ii) above. Each such Increase will be syndicated by the Arrangers using best efforts, but in no event shall any Bank be required to participate in any Increase.

Letters of Credit hereunder for all purposes, including, without limitation, with respect to the Reimbursement Obligations of the Borrower under §3.2 and the funding obligations of the Revolving Credit Banks under §3.3. As this Agreement constitutes an entire amendment and restatement of the Existing Credit Agreement, it is acknowledged and agreed that no Fronting Bank shall, or shall have any obligation to, issue any further Letters of Credit under the Existing Credit Agreement.

or the authority of the Person executing or delivering any such document. In furtherance of the foregoing and the provisions of §3.4, and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Fronting Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.

customarily charged by such Fronting Bank in connection with the foregoing. If such Revolving Credit Bank pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Revolving Credit Bank’s Commitment Percentage included in the relevant Revolving Credit Loan or Reimbursement Obligation, as the case may be. A certificate of such Fronting Bank submitted to any Revolving Credit Bank (through the Agent) with respect to any amounts owing under this clause (d) shall be conclusive absent manifest error.

prepayment. The Borrower shall give the Agent no later than 10:00 a.m., at least (A) one (1) Business Day’s prior written notice of any proposed prepayment pursuant to this §4.2 of any Base Rate Loans or Daily SOFR Loans, (B) three (3) Business Days’ prior written notice of any proposed prepayment pursuant to this §4.2 of any Term SOFR Loans or Alternative Currency Term Rate Loans denominated in Canadian Dollars, and (C) four (4) Business Days’ (or five (5) Business Days’, in the case of prepayment of Loans denominated in Special Notice Currencies) prior written notice of any proposed prepayment pursuant to this §4.2 of any Alternative Currency Committed Loans denominated in an Alternative Currency other than Canadian Dollars, in the form of a Notice of Loan Prepayment which shall specify the proposed date of prepayment, which of the Facilities will be prepaid and the principal amount, currency, Type and Interest Period of the Loans to be prepaid. The Agent will promptly notify each Bank of its receipt of each such notice, and of the amount of such Bank’s ratable portion, if any, of such prepayment (based on such Bank’s applicable Commitment Percentage in respect of any prepayment of the Incremental Term Loan Facility and or the Total Revolving Credit Commitment). Each such partial prepayment of the Loans shall be in an amount equal to $500,000 or an integral multiple of $100,000 in excess thereof or, if less, the outstanding balance of the Revolving Credit Loans or Incremental Term Loans, as applicable, then being repaid, shall be accompanied by the payment of all charges, if any, outstanding on all Revolving Credit Loans or Incremental Term Loans, as applicable, so prepaid and of all accrued interest on the principal prepaid to the date of payment, and shall be applied, in the absence of instruction by the Borrower, first to the principal of Base Rate Loans, then to the principal of Daily SOFR Loans and then to the principal of Term Rate Committed Loans. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Subject to §5.12, each such prepayment shall be promptly paid to the Banks in accordance with their respective applicable Commitment Percentages in respect of any prepayment of any Incremental Term Loan Facility or the Total Revolving Credit Commitment.

A notice of the Agent to any Bank, Fronting Bank or the Borrower with respect to any amount owing under this §5.1.3 shall be conclusive, absent manifest error.

respect to any such amendment effected, the Administrative Agent shall post each such amendment implementing such Conforming Changes or Canadian Benchmark Replacement Conforming Changes, as applicable, to the Borrower and the Banks reasonably promptly after such amendment becomes effective.

and the result of any of the foregoing is

then, and in each such case, the Borrower will, within thirty (30) days after notice by the Agent, such Fronting Bank or such Bank (such notice to be given promptly by the Agent, such Fronting Bank or such Bank upon the making of any such determination), at any time and from time to time and as often as the occasion therefor may arise, but subject to the limitations set forth in §5.8, pay to such Bank, such Fronting Bank or the Agent such additional amounts as such Bank, such

of their respective Subsidiaries is a party to any contract or agreement that has or is expected, in the judgment of their respective officers, to have any materially adverse effect on the respective businesses of BPLP, BPI or, taken as a whole, the BP Group.

effect that the form of such Pension Plan is qualified under Section 401(a) of the Code and the trust related thereto has been determined by the Internal Revenue Service to be exempt from federal income tax under Section 501(a) of the Code, or an application for such a letter is currently being processed by the Internal Revenue Service. To the best knowledge of the Borrower, nothing has occurred that would reasonably be expected to prevent or cause the loss of the tax-qualified status of any Pension Plan that is intended to be a qualified plan under Section 401(a) of the Code.

and correct entries in all material respects will be made in accordance with GAAP and (b) maintain adequate accounts and reserves for all taxes (including income taxes), contingencies, depreciation and amortization of its properties and the properties of its Subsidiaries; all of such reserves may be unfunded.

(other than the Loans) for borrowed money, to the extent that the information or disclosure contained in such material refers to or could reasonably be expected to have a material adverse effect on the business, assets, financial condition or prospects, or operations of BPLP, BPI or, taken as a whole, the BP Group;

the Borrower has delivered to the Agent within the time periods required therefor and referred to in subsections (a) and (b), the statement required by subsection (c) above.

of any other Person. Notwithstanding the foregoing (i) the Banks and the Agent shall not disclose any materials or information of any kind or nature whatsoever which are not specifically permitted to be disclosed in accordance with the terms of this subparagraph (b) or are not otherwise specifically permitted to be disclosed pursuant to the express provisions of this §8.10 and (ii) in the event of any change, amendment, modification or clarification of Code sections 6011 and/or 6111 (or any other applicable section of the Code) or any Regulations promulgated thereunder, or the issuance by any Person of any guidance on which the Banks, the Agent and the Representatives are entitled to rely or are otherwise bound by (including, by way of example only, private letter rulings), which in any way limits or restricts what may be disclosed pursuant to the terms of this paragraph, or otherwise establishes that such Code sections do not, or are not intended to, apply to loan facilities such as the Facility (or other similar transactions), the terms of this subparagraph (b) shall be deemed modified thereby. In this regard, the Banks and the Agent intend that this transaction will not be a “confidential transaction” under Code sections 6011, 6111 or 6112, and the regulations promulgated thereunder.

that such modified interest rate may be based upon either a Revolving Credit Loan or a Bid Rate Loan calculation, as elected by the Borrower pursuant to the terms hereof), (iv) be subject to being released or transferred by the Agent at the request of the Borrower, (v) be taken in the name of the Agent for the benefit of the Banks and (vi) not be recorded until (x) either (i) the Agent is satisfied, in its discretion, that no building or other improvements located on or otherwise forming part of the Real Estate Asset(s) subject to such Refinancing Mortgage is located in a “Special Flood Hazard Area” as designated by the U.S. Federal Emergency Management Agency or other applicable Governmental Authority or (y) the Borrower has provided evidence to the Agent that it has fully paid flood hazard insurance with respect to such Real Estate Asset(s), including but not limited to contents insurance, which insurance shall be in form and content acceptable to the Agent, in its discretion, and in amounts at least sufficient to comply with applicable Laws. In addition, in connection with each Refinancing Mortgage, the Agent would agree to provide, at the request of the Borrower, subordination, non-disturbance and attornment agreements in form and substance reasonably satisfactory to the Agent. No Real Estate Asset that is subject to a Refinancing Mortgage will qualify as an Unencumbered Asset hereunder.

taxes associated with any Refinancing Mortgage and (ii) the assignment of any Refinancing Mortgage and any related splitting and/or assignment of any Indebtedness under any related mortgage note.

rendered, and such judgments or awards remain unpaid for more than thirty (30) days, but excluding in all events, judgments in respect of loans for borrowed money secured by Real Estate Assets; and

under Development which are covered by clause (f), above), including, without limitation, preferred equity investments in and loans to such Subsidiaries and Partially-Owned Entities;

to the Borrower so long as no Default or Event of Default has occurred and is continuing. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.

judgment. The Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until notice describing such Default or Event of Default is given in writing to the Agent by the Borrower, a Bank or a Fronting Bank; and

or relates to the period prior to such discharge of duties and obligations). The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring or removed Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article and §17 shall continue in effect with respect to and, as applicable, for the benefit of such retiring or removed Agent, its sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them (i) while the retiring or removed Agent was acting as the Agent and (ii) after such resignation or removal for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including (a) acting as collateral agent or otherwise holding any collateral security on behalf of any of the Banks and (b) in respect of any actions taken in connection with transferring the agency to any successor Agent.

assigning Bank, the Agent 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 this Agreement; (e) such assignee represents and warrants that it is an Eligible Assignee; (f) such assignee appoints and authorizes the 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 Agent by the terms hereof or thereof, together with such powers as are reasonably incidental thereto; (g) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Bank; (h) such assignee represents and warrants that it is legally authorized to enter into such Assignment and Assumption; and (i) if applicable, such assignee acknowledges that it has made arrangements with the assigning Bank satisfactory to such assignee with respect to its pro rata share of Letter of Credit Fees in respect of outstanding Letters of Credit.

the parties shall endeavor in good faith negotiations to replace the invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid or unenforceable provisions. Without limiting the foregoing provisions of this §29, if and to the extent that the enforceability of any provisions in this Agreement relating to Delinquent Banks shall be limited by Debtor Relief Laws, as determined in good faith by the Agent or any Fronting Bank, as applicable, then such provisions shall be deemed to be in effect only to the extent not so limited.

had notice or knowledge of any Default or Event of Default at the time of the making of any Loan or issuance of any Letter of Credit, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.

cancellation any Original Note issued to it pursuant to the Existing Credit Agreement). Each Bank, whether or not requesting a Note hereunder, shall use its commercially reasonable efforts to deliver the Original Notes held by it to the Borrower for cancellation and/or amendment and restatement. All amounts owing under, and evidenced by, the Original Notes as of the Closing Date shall continue to be outstanding hereunder, and shall from and after the Closing Date, if requested by the Bank holding such Original Note, be evidenced by the corresponding Note issued hereunder, and shall in any event be evidenced by, and governed by the terms of, this Agreement. Each Bank hereby agrees to indemnify and hold harmless the Borrower from and against any and all liabilities, losses, damages, actions or claims that may be imposed on, incurred by or asserted against the Borrower arising out of such Bank’s failure to deliver the Original Notes held by it to the Borrower for cancellation, subject to the condition that the Borrower shall not make any payment to any Person claiming to be the holder of such Original Note unless such Bank is first notified of such claim and is given the opportunity, at such Bank’s sole cost and expense, to assert any defenses to such payment.

Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

*Use of a 360-day year results in more fees or interest, as applicable, being paid than if computed on a 365-day year.