AMENDMENT NO. 2 TO THE TERM LOAN AGREEMENT
Exhibit 10.28
AMENDMENT NO. 2 TO THE
TERM LOAN AGREEMENT
Dated as of December 11, 2013
AMENDMENT NO. 2 TO THE TERM LOAN AGREEMENT (this Amendment) among Digital Realty Trust, L.P., (the Operating Partnership), Digital Realty Datafirm, LLC, a Delaware limited liability company (the Initial Australia Borrower 1), Digital Realty Datafirm 2, LLC, a Delaware limited liability company (the Initial Australia Borrower 2), Digital Luxembourg II S.À R.L., a Luxembourg private limited liability company (société à responsabilité limitée) (the Initial Luxembourg Borrower 1), Digital Luxembourg III S.À R.L., a Luxembourg private limited liability company (société à responsabilité limitée) (the Initial Luxembourg Borrower 2), Digital Realty (Redhill) S.À R.L., a Luxembourg private limited liability company (société à responsabilité limitée) (the Initial Luxembourg Borrower 3), Digital Realty (Blanchardstown) Limited, an Irish private company limited by shares (the Initial Irish Borrower), Digital Realty (Paris2) SCI, a French Société Civile Immobilière (the Initial French Borrower), Digital Singapore Jurong East Pte. Ltd., a Singapore private limited company (the Initial Singapore Borrower), Digital Realty (Welwyn) S.À R.L., a Luxembourg private limited liability company (société à responsabilité limitée) (the Initial Luxembourg Borrower 4) and Digital Netherlands IV B.V., a private company with limited liability (besloten vennootschap met beperkete aansprakelijkheid) (the Initial Dutch Borrower; and collectively with the Operating Partnership, the Initial Australia Borrower 1, the Initial Australia Borrower 2, the Initial Luxembourg Borrower 1, the Initial Luxembourg Borrower 2, the Initial Luxembourg Borrower 3, the Initial Irish Borrower, the Initial French Borrower, the Initial Singapore Borrower and the Initial Luxembourg Borrower 4, the Borrowers and each individually a Borrower), Digital Realty Trust, Inc., (the Parent Guarantor), the banks, financial institutions and other institutional lenders listed on the signature pages hereof as the lenders (the Required Lenders) and Citibank, N.A. (Citibank), as administrative agent for the Lenders (the Administrative Agent).
PRELIMINARY STATEMENTS:
(1) The Borrowers, the Parent Guarantor, the subsidiaries of the Borrowers party thereto, the Lenders, the Administrative Agent and the other financial institutions party thereto entered into a Term Loan Agreement dated as of April 16, 2012 (as amended by that certain Amendment No. 1 to Term Loan, dated as of August 15, 2013, the Existing Term Loan Agreement). Capitalized terms not otherwise defined in this Amendment have the same meanings as specified in the Existing Term Loan Agreement, as amended hereby;
(2) The Administrative Agent and the Borrowers wish to amend the Existing Term Loan Agreement to address recent changes made by the Association of Banks in Singapore and the Singapore Foreign Exchange Market Committee to the recommended process of determining LIBOR for borrowings in Singapore Dollars; and
(3) Subject to the terms and conditions herein, the Borrowers, the Administrative Agent and Required Lenders have agreed to amend the Existing Term Loan Agreement on the terms and subject to the conditions hereinafter set forth.
SECTION 1. Amendments to Existing Term Loan Agreement. The Existing Term Loan Agreement is, upon the occurrence of the Amendment Effective Date (as defined in Section 4 below), hereby amended as set forth below:
(a) The definition of Interest Period set forth in Section 1.01 of the Existing Term Loan Agreement is hereby amended by (i) deleting the word and at the end of clause (d) thereof, (ii)
deleting the period and adding the word ; and at the end of clause (e) thereof and (iii) adding a new clause (f) to read in full as follows:
(f) with respect to the Singapore Dollar Loan, the available Interest Period durations shall be one, three and six months only.
(b) The definition of Market Disruption Event set forth in Section 1.01 of the Existing Term Loan Agreement is hereby amended by replacing the words 11:00 A.M. (Singapore time) in the second line thereof with 12:00 P.M. (London time).
(c) The definition of Singapore Business Day set forth in Section 1.01 of the Existing Term Loan Agreement is hereby amended by inserting the words and London, England immediately before the period at the end thereof.
(d) The definition of SOR set forth in Section 1.01 of the Existing Term Loan Agreement is hereby deleted in its entirety and replaced with the following:
SOR means in relation to the Advances in respect of the Singapore Dollar Loan, (a) the rate appearing under the caption SGD SOR Rates on the ABSFIX01 of the Reuters Monitor Money Rates Services at 12:00 P.M. (London time) on the applicable Quotation Day or (b) if no such rate is available, the rate reasonably determined by the Administrative Agent as the rate quoted to leading banks in the Singapore interbank market as of 12:00 P.M. (London time) on the Quotation Day for the offering of deposits in Singapore Dollars for a period comparable to the applicable Interest Period.
SECTION 2. Conditions of Effectiveness. This Amendment shall become effective as of the first date (the Amendment Effective Date) on which, and only if, each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received on or before the date hereof, each dated such day (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified):
(i) Counterparts of this Amendment executed by the Borrowers and each Required Lender or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment.
(ii) The consent attached hereto (the Consent) executed by each of the Guarantors.
(b) All of the accrued fees of the Administrative Agent and the Lenders and all reasonable expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
SECTION 3. Reference to and Effect on the Existing Term Loan Agreement, the Notes and the Loan Documents. (a) On and after the effectiveness of this Amendment, each reference in the Existing Term Loan Agreement to this Agreement, hereunder, hereof or words of like import referring to the Existing Term Loan Agreement, and each reference in the Notes and each of the other Loan Documents to the Loan Agreement,
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thereunder, thereof or words of like import referring to the Existing Term Loan Agreement, shall mean and be a reference to the Existing Term Loan Agreement, as amended and modified by this Amendment.
(b) The Existing Term Loan Agreement, the Notes and each of the other Loan Documents, as specifically amended by this Amendment, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.
(d) This Amendment shall not extinguish the obligations for the payment of money outstanding under the Existing Term Loan Agreement. Nothing herein contained shall be construed as a substitution or novation of the obligations outstanding under the Existing Term Loan Agreement, which shall remain in full force and effect, except to any extent modified hereby or as provided in the exhibits hereto. Nothing implied in this Amendment or in any other document contemplated hereby shall be construed as a release or other discharge of any of the Loan Parties from the Loan Documents.
SECTION 4. Costs and Expenses. The Borrowers agrees to pay on demand all reasonable out-of-pocket costs and expenses of the Administrative Agent in connection with the preparation, execution, delivery and administration, modification and amendment of this Amendment and the other instruments and documents to be delivered hereunder (including, without limitation, the reasonable fees and expenses of counsel for the Administrative Agent) in accordance with the terms of Section 9.04 of the Existing Term Loan Agreement.
SECTION 5. Execution in Counterparts. This Amendment 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 but one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by facsimile shall be effective as delivery of a manually executed counterpart of this Amendment.
SECTION 6. Governing Law. This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.
BORROWERS: | ||||
DIGITAL REALTY TRUST, L.P., a Maryland limited partnership | ||||
By: | DIGITAL REALTY TRUST, INC., its sole general partner | |||
By: | /s/ A. William Stein | |||
Name: A. William Stein | ||||
Title: Chief Financial Officer and Chief Investment Officer | ||||
DIGITAL REALTY DATAFIRM, LLC, a Delaware limited liability company | ||||
By: | DIGITAL REALTY TRUST, L.P., its sole member and manager | |||
By: | DIGITAL REALTY TRUST, INC., its sole general partner | |||
By: | /s/ A. William Stein | |||
Name: A. William Stein | ||||
Title: Chief Financial Officer and Chief Investment Officer | ||||
DIGITAL REALTY DATAFIRM 2, LLC, a Delaware limited liability company | ||||
By: | DIGITAL REALTY TRUST, L.P., its sole member and manager | |||
By: | DIGITAL REALTY TRUST, INC., its sole general partner | |||
By: | /s/ A. William Stein | |||
Name: A. William Stein | ||||
Title: Chief Financial Officer and | ||||
Chief Investment Officer |
Signature Page
DIGITAL LUXEMBOURG II S.À R.L., | ||
a Luxembourg Société à responsabilité limitée | ||
Registered office: 11, Boulevard du Prince Henri, L-1724, Luxembourg | ||
Share capital: EUR 1,600,500 | ||
R.C.S. Luxembourg: B110.214 | ||
By: | /s/ A. William Stein | |
Name: A. William Stein, Authorized Signatory | ||
DIGITAL LUXEMBOURG III S.À R.L., a Luxembourg Société à responsabilité limitée | ||
Registered office: 11, Boulevard du Prince Henri | ||
L-1724 Luxembourg | ||
Share capital: £ 25,823 | ||
R.C.S. Luxembourg: B 141.552 | ||
By: | /s/ A. William Stein | |
Name: A. William Stein, Authorized Signatory | ||
DIGITAL REALTY (REDHILL) S.À R.L., a Luxembourg Société à responsabilité limitée | ||
Registered office: 11, Boulevard du Prince Henri | ||
L-1724, Luxembourg | ||
Share capital: £ 12,000 | ||
R.C.S. Luxembourg: B 125.912 | ||
By: | /s/ A. William Stein | |
Name: A. William Stein, Authorized Signatory | ||
DIGITAL REALTY (PARIS2) SCI, a French Société civile immobiliere | ||
By: | /s/ A. William Stein | |
Name: A. William Stein, duly authorized |
Signature Page
DIGITAL SINGAPORE JURONG EAST PTE. LTD., | ||
a Singapore private company limited by shares | ||
By: | /s/ A. William Stein | |
Name: A. William Stein, Authorized Person | ||
DIGITAL REALTY (WELWYN) S.À R.L. a Luxembourg Société à responsabilité limitée | ||
Registered office: 11, Boulevard du Prince Henri | ||
L-1724, Luxembourg | ||
Share capital: £ 12,000 | ||
R.C.S. Luxembourg: B 125.239 | ||
By: | /s/ A. William Stein | |
Name: A. William Stein, Authorized Signatory | ||
DIGITAL REALTY (BLANCHARDSTOWN) LIMITED, an Irish private company limited by shares | ||
By: | /s/ Joshua A. Mills | |
Name: Joshua A. Mills, | ||
Title: Director | ||
DIGITAL NETHERLANDS IV, B.V., a Dutch private company with limited liability | ||
By: | /s/ A. William Stein | |
Name: A. William Stein, Authorized Person |
Signature Page
PARENT GUARANTOR: | ||
DIGITAL REALTY TRUST, INC., a Maryland corporation | ||
By: | /s/ A. William Stein | |
Name: A. William Stein | ||
Title: Chief Financial Officer and | ||
Chief Investment Officer |
Signature Page
ADMINISTRATIVE AGENT: | ||
CITIBANK, N.A. | ||
By: | /s/ John C. Rowland | |
Name: John C. Rowland | ||
Title: Vice President |
Signature Page
CITIBANK, N.A., | ||
as a Lender | ||
By: | /s/ John C. Rowland | |
Name: John C. Rowland | ||
Title: Vice President |
Signature Page
CITIBANK, N.A., SINGAPORE BRANCH, | ||
as a Lender | ||
By: | /s/ Ajay Sharma | |
Name: Ajay Sharma | ||
Title: Managing Director |
Signature Page
CITIBANK INTERNATIONAL PLC, | ||
as a Lender | ||
By: | /s/ Mark Lightbown | |
Name: Mark Lightbown | ||
Title: Vice President |
Signature Page
CITIBANK N.A., SYDNEY BRANCH, | ||
as a Lender | ||
By: | /s/ Michael Reid | |
Name: Michael Reid | ||
Title: Managing Director | ||
By: | /s/ Stephen Daly | |
Name: Stephen Daly | ||
Title: Director |
Signature Page
BANK OF AMERICA, N.A. | ||
as a Lender | ||
By: | /s/ William P. Foley | |
Name: William P. Foley | ||
Title: Vice President |
Signature Page
JPMORGAN CHASE BANK, N.A. | ||
as a Lender | ||
By: | /s/ Kimberly Turner | |
Name: Kimberly Turner | ||
Title: Executive Director |
Signature Page
BARCLAYS BANK PLC, | ||
as a Lender | ||
By: | /s/ Noam Azachi | |
Name: Noam Azachi | ||
Title: Vice President |
Signature Page
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH | ||
as a Lender | ||
By: | /s/ Mikhail Faybusovich | |
Name: Mikhail Faybusovich | ||
Title: Authorized Signatory | ||
By: | /s/ Jean-Marc Vauclair | |
Name: Jean-Marc Vauclair | ||
Title: Authorized Signatory |
Signature Page
DEUTSCHE BANK AG NEW YORK BRANCH, | ||
as a Lender | ||
By: | /s/ David Naranjo | |
Name: David Naranjo | ||
Title: Vice President | ||
By: | /s/ Joanna Soliman | |
Name: Joanna Soliman | ||
Title: Vice President |
Signature Page
DEUTSCHE BANK AG SINGAPORE BRANCH, | ||
as a Lender | ||
By: | /s/ David Cheng Chi-Jian | |
Name: Cheng Chi-Jian, David | ||
Title: Director | ||
By: | /s/ Steffen Alexander Johann Friedrich Limbach | |
Name: Limbach, Steffen Alexander Johann Friedrich | ||
Title: Director |
Signature Page
Goldman Sachs Bank USA, | ||
as a Lender | ||
By: | /s/ Michelle Latzoni | |
Name: Michelle Latzoni | ||
Title: Authorized Signatory |
Signature Page
ROYAL BANK OF CANADA, | ||
as a Lender | ||
By: | /s/ Brian Gross | |
Name: Brian Gross | ||
Title: Authorized Signatory |
Signature Page
WELLS FARGO BANK, NATIONAL ASSOCIATION, | ||
as a Lender | ||
By: | /s/ Kevin A. Stacker | |
Name: Kevin A. Stacker | ||
Title: Vice President |
Signature Page
COMPASS BANK, | ||
as a Lender | ||
By: | /s/ Brian Tuerff | |
Name: Brian Tuerff | ||
Title: Senior Vice President |
Signature Page
HSBC BANK USA, N.A. | ||
as a Lender | ||
By: | /s/ Adriana Collins | |
Name: Adrianna Collins | ||
Title: Vice President |
Signature Page
LLOYDS BANK PLC, formerly known as Lloyds TSB Bank plc | ||
as a Lender | ||
By: | /s/ Stephen Giacolone | |
Name: Stephen Giacolone | ||
Title: Assistant Vice President G011 | ||
By: | /s/ Karen Weich | |
Name: Karen Weich | ||
Title: Vice President W011 |
Signature Page
SUNTRUST BANK, | ||
as a Lender | ||
By: | /s/ Nancy B. Richards | |
Name: Nancy B. Richards | ||
Title: Senior Vice President |
Signature Page
THE ROYAL BANK OF SCOTLAND PLC, | ||
as a Lender | ||
By: | /s/ Jeannine Pascal | |
Name: Jeannine Pascal | ||
Title: Vice President |
Signature Page
THE BANK OF NOVA SCOTIA, SINGAPORE BRANCH, | ||
as a Lender | ||
By: | /s/ Gabriel Low Boon Tiong | |
Name: Gabriel Low Boon Tiong | ||
Title: Director, Head of Operations |
Signature Page
SCOTIABANK EUROPE PLC, | ||
as a Lender | ||
By: | /s/ John OConnor | |
Name: John OConnor | ||
Title: Head of Credit Risk Control | ||
By: | /s/ Steve Caller | |
Name: Steve Caller | ||
Title: Manager, Credit Risk Control |
Signature Page
TD Bank, N.A., | ||
as a Lender | ||
By: | /s/ Michael J. Pappas | |
Name: Michael J. Pappas | ||
Title: Vice President |
Signature Page
MORGAN STANLEY BANK, N.A., | ||
as a Lender | ||
By: | /s/ Nick Zangari | |
Name: Nick Zangari | ||
Title: Authorized Signatory |
Signature Page
SUMITOMO MISUI BANKING CORPORATION, | ||
as a Lender | ||
By: | /s/ William G. Karl | |
Name: William G. Karl | ||
Title: General Manager |
Signature Page
US BANK NATIONAL ASSOCIATION, a national banking association, | ||
as a Lender | ||
By: | /s/ Michael Diemer | |
Name: Michael Diemer | ||
Title: Vice President |
Signature Page
UNION BANK, N.A., | ||
as a Lender | ||
By: | /s/ Amit Shah | |
Name: Amit Shah | ||
Title: Vice President |
Signature Page
AUSTRALIAN AND NEW ZEALAND BANKING GROUP, | ||
as a Lender | ||
By: | /s/ Grace Irvin | |
Name: Grace Irvin | ||
Title: Director |
Signature Page
BRANCH BANKING AND TRUST COMPANY, | ||
as a Lender | ||
By: | /s/ Ahaz A. Armstrong | |
Name: Ahaz A. Armstrong | ||
Title: Assistant Vice President |
Signature Page
RAYMOND JAMES BANK, N.A., | ||
as a Lender | ||
By: | /s/ Thomas G. Scott | |
Name: Thomas G. Scott | ||
Title: Senior Vice President |
Signature Page
CITY NATIONAL BANK, a national banking association | ||
as a Lender | ||
By: | /s/ John Finnigan | |
Name: John Finnigan | ||
Title: Senior Vice President |
Signature Page
CONSENT
Dated as of December 11, 2013
Each of the undersigned, as a Guarantor under the Existing Term Loan Agreement referred to in the foregoing Amendment, hereby consents to such Amendment and hereby confirms and agrees that notwithstanding the effectiveness of such Amendment, the Guaranty contained in the Existing Term Loan Agreement is and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects, except that, on and after the effectiveness of such Amendment, each reference in the Loan Documents to Loan Agreement, thereunder, thereof or words of like import shall mean and be a reference to the Existing Term Loan Agreement, as amended and modified by such Amendment.
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GUARANTORS: | ||||
DIGITAL REALTY TRUST, L.P., a Maryland limited partnership | ||||
By: | DIGITAL REALTY TRUST, INC., | |||
its sole general partner | ||||
By: | /s/ A. William Stein | |||
Name: A. William Stein | ||||
Title: Chief Financial Officer and Chief | ||||
Investment Officer | ||||
DIGITAL REALTY TRUST, INC., a Maryland corporation | ||||
By: | /s/ A. William Stein | |||
Name: A. William Stein | ||||
Title: Chief Financial Officer and Chief Investment Officer |
Signature Page to Consent