Fifth Amendment and Waiver to Global Senior Credit Agreement among ProLogis, Bank of America, and Other Lenders

Contract Categories: Business Finance › Credit Agreements
Summary

This amendment, effective January 31, 2011, modifies the Global Senior Credit Agreement originally dated October 6, 2005, between ProLogis, Bank of America (as Global Administrative Agent), and several lenders. The amendment changes the definition of "Change of Control" and provides a limited waiver for certain defaults related to agreements that could have triggered a change of control. All other terms of the original agreement remain in effect. The amendment is binding upon execution by the required parties and does not release any existing guarantees or liens.

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EX-10.1 2 d79430exv10w1.htm EX-10.1 exv10w1
Exhibit 10.1
FIFTH AMENDMENT AND WAIVER TO
GLOBAL SENIOR CREDIT AGREEMENT
     THIS FIFTH AMENDMENT AND WAIVER TO GLOBAL SENIOR CREDIT AGREEMENT (this “Amendment”) is entered into as of January 31, 2011 among PROLOGIS, a Maryland real estate investment trust (“ProLogis”), the undersigned Lenders and BANK OF AMERICA, N.A., as Global Administrative Agent.
R E C I T A L S
A.   ProLogis, various affiliates thereof, various lenders and various agents are parties to a Global Senior Credit Agreement dated as of October 6, 2005 (as amended or otherwise modified prior to the date hereof, the “Credit Agreement”).
B.   Capitalized terms used herein shall, unless otherwise indicated, have the respective meanings set forth in the Credit Agreement, as amended hereby.
C.   ProLogis and the undersigned Credit Parties desire to amend and waive certain provisions of the Credit Agreement, subject to the terms and conditions set forth herein.
     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. AMENDMENT TO THE CREDIT AGREEMENT. The definition of “Change of Control” in Section 1.1 of the Credit Agreement is amended to remove the following language from clause (c) of such definition: “, or shall have entered into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition of.”
2. WAIVER. By executing and delivering this Amendment, each Lender waives any Default that may have occurred during the period between the date of this Amendment and the date on which this Amendment becomes effective pursuant to Section 5 solely as a result of ProLogis executing an agreement or agreements that would, absent this Amendment, cause a Change of Control to occur pursuant to clause (c) of the definition of such term. The waiver contained in this Section 2 is expressly limited to the execution of any such agreement or agreements and any Default occurring as a result thereof, and shall not constitute a waiver or consent with respect to any other matter, including, without limitation, the consummation of any merger or other transaction contemplated by any such agreement.
3. RATIFICATION. ProLogis (a) ratifies and confirms all provisions of the Loan Documents to which it is a party as amended by this Amendment and (b) confirms that no guaranty or Lien granted, conveyed, or assigned by it to any of the Credit Parties under the Loan Documents is released, reduced, or otherwise adversely affected by this Amendment and that each such guaranty or Lien continues to guarantee and secure full payment and performance of the present and future Obligations of Borrowers as set forth under the Loan Documents.
4. REPRESENTATIONS.
     ProLogis represents and warrants to the Credit Parties that as of the date of this Amendment: (a) it has duly authorized, executed, and delivered this Amendment; (b) no action of, or filing with, any Governmental Authority is required to authorize, or is otherwise required in connection with, the execution, delivery, and performance by it of this Amendment; (c) the Loan Documents to which it is a party, as amended by this Amendment, are valid and binding upon it and are enforceable against it in

 

 

accordance with their respective terms, except as limited by Debtor Relief Laws and general principles of equity; (d) the execution, delivery, and performance by it of this Amendment do not require the consent of any other Person and do not and will not constitute a violation of any Law, order of any Governmental Authority, or material agreement to which it is a party or by which it is bound; (e) all of the representations and warranties made by it in the Loan Documents to which it is a party, as amended by this Amendment, are true and correct in all material respects on and as of the date of this Amendment, except to the extent that (i) any of them speaks to a different specific date or (ii) the facts on which any of them was based have been changed by transactions contemplated or permitted by the Credit Agreement; and (f) after giving effect to this Amendment, no Default exists.
5. CONDITIONS. This Amendment shall be effective, as of January 28, 2011 (the “Amendment Effective Date”), on the date on which each of the following conditions is satisfied:
     (a) this Amendment is executed by ProLogis, Global Administrative Agent and the Required Lenders; and
     (b) the representations and warranties in this Amendment are true and correct in all material respects on and as of the date of this Amendment, except to the extent that (i) any of them speaks to a different specific date, or (ii) the facts on which any of them was based have been changed by transactions contemplated or permitted by the Credit Agreement.
6. CONTINUED EFFECT. Except to the extent amended hereby, all terms, provisions, and conditions of the Credit Agreement and the other Loan Documents, and all documents executed in connection therewith, shall continue in full force and effect and shall remain enforceable and binding in accordance with their respective terms, subject to Debtor Relief Laws and general principles of equity. Upon the effectiveness hereof, all references in the Loan Documents to the “Credit Agreement” or similar terms shall be references to the Credit Agreement as amended by this Amendment.
7. MISCELLANEOUS. Unless stated otherwise (a) the singular number includes the plural and vice versa and words of any gender include each other gender, in each case, as appropriate, (b) headings and captions may not be construed in interpreting provisions, (c) this Amendment shall be construed — and its performance enforced — under New York law, (d) if any part of this Amendment is for any reason found to be unenforceable, all other portions of it nevertheless remain enforceable, and (e) this Amendment may be executed in any number of counterparts with the same effect as if all signatories had signed the same document, and all of those counterparts must be construed together to constitute the same document. A signature page hereto delivered by facsimile or electronic mail shall be effective as delivery of a manually-signed counterpart hereof.
8. PARTIES. This Amendment binds and inures to the benefit of the parties hereto and their respective successors and permitted assigns.
9. ENTIRETIES. The Credit Agreement and the other Loan Documents, as amended by this Amendment, represent the final agreement among the parties about the subject matter of the Credit Agreement and the other Loan Documents and may not be contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the parties. There are no unwritten oral agreements between the parties.

2

 

         
  PROLOGIS,
a Maryland real estate investment trust
 		  
  By:   /s/ Phillip D. Joseph, Jr.  
    Name:   Phillip D. Joseph, Jr.   
    Title:   Senior Vice President and Treasurer   
 

 

 

Executed as of the date first written above.
         
  LENDERS:

BANK OF AMERICA, N.A.,
as a U.S. Lender and a Euro Lender

BANK OF AMERICA, N.A., TOKYO BRANCH,
as a Yen Lender
 		  
  By:   /s/ Will T. Bowers, Jr.  
    Will T. Bowers, Jr., Senior Vice President   
       
 
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
         
  THE BANK OF NOVA SCOTIA,
as a U.S. Lender
 		  
  By:   /s/ The Bank of Nova Scotia  
    Name:      
    Title:      
 
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
         
  CITICORP NORTH AMERICA, INC.,
as a U.S. Lender
 		  
  By:   /s/ John Rowland  
    Name:   John Rowland  
    Title:   Director  
 
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
         
  BARCLAYS BANK PLC,
as a U.S. Lender
 		  
  By:   /s/ Noam Azachi  
    Name:   Noam Azachi   
    Title:   Assistant Vice President  
 
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
         
  CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK,
as a U.S. Lender
 		  
  By:   /s/ John A. Wain  
    Name:   John A. Wain  
    Title:   Managing Director  
 
     
  By:   /s/ Daniel J. Reddy    
    Name:   Daniel J. Reddy  
    Title:   Director  
 
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
         
  DEUTSCHE BANK, AG, NEW YORK BRANCH,
as a U.S. Lender
 		  
  By:   /s/ Deutsche Bank, AG, New York Branch  
    Name:      
    Title:      
 
     
  By:   /s/ Deutsche Bank, AG, New York Branch    
    Name:      
    Title:      
 
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
         
  GOLDMAN SACHS BANK USA,
as a U.S. Lender
 		  
  By:   /s/ Lauren Day  
    Name:   Lauren Day  
    Title:   Authorized Signatory  
 
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
         
  ING REAL ESTATE FINANCE (USA) LLC,
as a U.S. Lender
 		  
  By:   /s/ Michael Shields  
    Name:   Michael Shields  
    Title:   Managing Director  
         
     
  By:   /s/ Bill Knickerbocker  
    Name:   Bill Knickerbocker  
    Title:   Director  
 
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
         
  JPMORGAN CHASE BANK, N.A.,
as a U.S. Lender
 		  
  By:   /s/ Kimberly Turner  
    Name:   Kimberly Turner  
    Title:   Executive Director  
 
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
         
  MORGAN STANLEY BANK, N.A.,
as a U.S. Lender
 		  
  By:   /s/ Morgan Stanley Bank, N.A.  
    Name:      
    Title:      
 
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
         
  MORGAN STANLEY SENIOR FUNDING INC.,
as a U.S. Lender
 		  
  By:   /s/ Morgan Stanley Senior Funding Inc.  
    Name:      
    Title:      
 
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
         
  THE NORTHERN TRUST COMPANY,
as a U.S. Lender
 		  
  By:   /s/ Carol B. Conklin  
    Name:   Carol B. Conklin  
    Title:   Senior Vice President  
 
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
         
  ROYAL BANK OF CANADA,
as a U.S. Lender
 		  
  By:   /s/ Dan LePage  
    Name:   Dan LePage  
    Title:   Authorized Signatory  
 
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
         
  THE ROYAL BANK OF SCOTLAND PLC,
as a U.S. Lender
 		  
  By:   /s/ The Royal Bank of Scotland PLC  
    Name:      
    Title:      
 
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
         
  SUMITOMO MITSUI BANKING CORPORATION,
as a U.S. Lender
 		  
  By:   /s/ William M. Ginn  
    Name:   William M. Ginn  
    Title:   Executive Officer  
 
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
         
  WELLS FARGO BANK, N.A.,
successor-by-merger to
Wachovia Bank, N.A.,
as a U.S. Lender
 		  
  By:   /s/ Allison Gallagher   
    Name:   Allison Gallagher   
    Title:   Vice President   
 
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
         
  SOCIÉTÉ GÉNÉRALE
as a U.S. Lender
 		  
  By:   /s/ Jean - Francois Despoux  
    Name:   Jean - Francois Despoux  
    Title:   Managing Director  
 
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
         
  U.S. BANK NATIONAL ASSOCIATION,
as a U.S. Lender
 		  
  By:   /s/ Sandra A. Sauer  
    Name:   Sandra A. Sauer  
    Title:   Vice President  
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
                 
    SCOTIABANK EUROPE PLC,
as a Euro Lender		    
 
                
 
  By:   /s/ John O’Connor    
           
 
      Name:   John O’Connor     
 
      Title:   Head of Credit Administration    
 
               
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
                 
    BARCLAYS BANK PLC,
as a Euro Lender		    
 
                
 
  By:   /s/ Noam Azachi     
               
 
      Name:   Noam Azachi      
 
      Title:   Assistant Vice President    
 
               
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
                 
    CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK,
as a Euro Lender		    
 
                
 
  By:   /s/ Credit Agricole Corporate and Investment Bank     
               
 
      Name:        
 
      Title:  
 
    
 
               
 
                
 
  By:   /s/ Credit Agricole Corporate and Investment Bank     
               
 
      Name:        
 
      Title:  
 
    
 
               
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
                 
    DEUTSCHE BANK AG,
as a Euro Lender 		   
 
 
  By:   /s/ Deutsche Bank AG    
             
 
      Name:        
 
      Title:  
 
    
 
               
 
                
 
  By:   /s/ Deutsche Bank AG    
             
 
      Name:        
 
      Title:  
 
    
 
               
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
                 
    GOLDMAN SACHS BANK USA,
as a Euro Lender		    
 
                
 
  By:   /s/ Lauren Day    
               
 
      Name:   Lauren Day  
 
      Title:  
Authorized Signatory
    
 
               
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
                 
    ING REAL ESTATE FINANCE (USA) LLC,
as a Euro Lender		    
 
                
 
  By:   /s/ Bill Knickerbocker     
               
 
      Name:   Bill Knickerbocker     
 
      Title:   Director    
 
               
 
 
  By:   /s/ Craig R. Bender    
               
 
      Name:   Craig R. Bender    
 
      Title:   Director    
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
                 
    JPMORGAN CHASE BANK, N.A.,
as a Euro Lender		    
 
                
 
  By:   /s/ Kimberly Turner     
               
 
      Name:   Kimberly Turner     
 
      Title:   Executive Director    
 
               
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
                 
    MORGAN STANLEY BANK NATIONAL ASSOCIATION,
as a Euro Lender		    
 
                
 
  By:   /s/ Morgan Stanley Bank National Association     
               
 
      Name:        
 
      Title:  
 
    
 
               
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
                 
    THE ROYAL BANK OF SCOTLAND N.V.,
as a Euro Lender		    
 
                
 
  By:   /s/ The Royal Bank of Scotland N.V.     
               
 
      Name:        
 
      Title:  
 
    
 
               
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
                 
    SUMITOMO MITSUI BANKING CORPORATION,
as a Euro Lender		    
 
                
 
  By:   /s/ William M. Ginn    
               
 
      Name:   William M. Ginn    
 
      Title:  
Executive Director
    
 
               
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

                 
    CITICORP NORTH AMERICA, INC.,
as a Euro Lender		    
 
                
 
  By:   /s/ John Rowland    
               
 
      Name:   John Rowland      
 
      Title:   Director     
 
               
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
         
  WELLS FARGO BANK, N.A.,
successor-by-merger to
Wachovia Bank, N.A.,
as a Euro Lender
 		  
  By:   /s/ Allison Gallagher  
    Name:   Allison Gallagher   
    Title:   Vice President   
 
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
                 
    ROYAL BANK OF CANADA,
as a Euro Lender		    
 
                
 
  By:   /s/ Dan LePage    
               
 
      Name:   Dan LePage    
 
      Title:  
 
Authorized Signatory		    
 
               
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
         
  SOCIÉTÉ GÉNÉRALE
as a Euro Lender
 		  
  By:   /s/ Jean - Francois Despoux  
    Name:   Jean - Francois Despoux  
    Title:   Managing Director  
 
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
         
  THE BANK OF NOVA SCOTIA,
as a Yen Lender
 		  
  By:   /s/ Hideo Mine  
    Name:   Hideo Mine  
    Title:   Senior Manager and Group Head Credit and Marketing  
 
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
         
  CREDIT AGRICOLE CORPORATE AND
INVESTMENT BANK, TOKYO BRANCH,
as a Yen Lender
 		  
  By:   /s/ Kunihiro Horiba  
    Name:   Kunihiro Horiba  
    Title:   Managing Director  
 
     
  By:   /s/ Hiroyuki Ueno  
    Name:   Hiroyuki Ueno  
    Title:   Managing Director  
 
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
         
  ING BANK N.V., TOKYO BRANCH
as a Yen Lender
 		  
  By:   /s/ Yoji Morishita  
    Name:   Yoji Morishita  
    Title:   Managing Director  
 
         
  By:   /s/ Riko Kikuchi  
    Name:   Riko Kikuchi  
    Title:   Vice President  
 
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
         
  JPMORGAN CHASE BANK, N.A.,
as a Yen Lender
 		  
  By:   /s/ Kimberly Turner  
    Name:   Kimberly Turner  
    Title:   Executive Director  
 
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
         
  THE ROYAL BANK OF SCOTLAND PLC,
as a Yen Lender
 		  
  By:   /s/ Brett E. Thompson  
    Name:   Brett E. Thompson  
    Title:   Senior Vice President  
 
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
         
  SOCIÉTÉ GÉNÉRALE, TOKYO BRANCH
as a Yen Lender
 		  
  By:   /s/ Jean - Francois Despoux  
    Name:   Jean - Francois Despoux  
    Title:   Managing Director  
 
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
         
  SUMITOMO MITSUI BANKING CORPORATION,
as a Yen Lender
 		  
  By:   /s/ William M. Ginn  
    Name:   William M. Ginn  
    Title:   Executive Officer  
 
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
         
  THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,
NEW YORK BRANCH
 		  
  By:   /s/ John Feeney  
    Name:   John Feeney  
    Title:   Vice President  
 
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement

 

 

Executed as of the date first written above.
         
  Acknowledged and Agreed:


BANK OF AMERICA, N.A.,
as Global Administrative Agent
 		  
  By:   /s/ Will T. Bowers, Jr.  
    Will T. Bowers, Jr., Senior Vice President  
       
 
Signature Page to
Fifth Amendment to ProLogis Global Senior Credit Agreement