AMENDMENT NO. 2 TO THE TERM LOAN AGREEMENT
Exhibit 10.28
AMENDMENT NO. 2 TO THE
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 X.X., a Luxembourg private limited liability company (société à responsabilité limitée) (the “Initial Luxembourg Borrower 1”), Digital Luxembourg III S.À X.X., a Luxembourg private limited liability company (société à responsabilité limitée) (the “Initial Luxembourg Borrower 2”), Digital Realty (Redhill) S.À X.X., 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 X.X., 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: | ||||
|
a Maryland limited partnership | ||||
| By: | DIGITAL REALTY TRUST, INC., its sole general partner | |||
| By: |
/s/ A. Xxxxxxx Xxxxx | |||
| Name: A. Xxxxxxx Xxxxx | ||||
| Title: Chief Financial Officer and Chief Investment Officer | ||||
| DIGITAL REALTY DATAFIRM, LLC, a Delaware limited liability company | ||||
| By: |
its sole member and manager | |||
| By: | DIGITAL REALTY TRUST, INC., its sole general partner | |||
| By: |
/s/ A. Xxxxxxx Xxxxx | |||
| Name: A. Xxxxxxx Xxxxx | ||||
| Title: Chief Financial Officer and Chief Investment Officer | ||||
| DIGITAL REALTY DATAFIRM 2, LLC, a Delaware limited liability company | ||||
| By: | its sole member and manager | |||
| By: | DIGITAL REALTY TRUST, INC., its sole general partner | |||
| By: |
/s/ A. Xxxxxxx Xxxxx | |||
| Name: A. Xxxxxxx Xxxxx | ||||
| Title: Chief Financial Officer and | ||||
| Chief Investment Officer | ||||
Signature Page
| DIGITAL LUXEMBOURG II S.À X.X., | ||
| a Luxembourg Société à responsabilité limitée | ||
| Registered office: 00, Xxxxxxxxx xx Xxxxxx Xxxxx, X-0000, Xxxxxxxxxx | ||
| Share capital: EUR 1,600,500 | ||
| R.C.S. Luxembourg: B110.214 | ||
| By: | /s/ A. Xxxxxxx Xxxxx | |
| Name: A. Xxxxxxx Xxxxx, Authorized Signatory | ||
| DIGITAL LUXEMBOURG III S.À X.X., a Luxembourg Société à responsabilité limitée | ||
| Registered office: 00, Xxxxxxxxx xx Xxxxxx Xxxxx | ||
| X-0000 Xxxxxxxxxx | ||
| Share capital: £ 25,823 | ||
| R.C.S. Luxembourg: B 141.552 | ||
| By: | /s/ A. Xxxxxxx Xxxxx | |
| Name: A. Xxxxxxx Xxxxx, Authorized Signatory | ||
| DIGITAL REALTY (REDHILL) S.À X.X., a Luxembourg Société à responsabilité limitée | ||
| Registered office: 00, Xxxxxxxxx xx Xxxxxx Xxxxx | ||
| X-0000, Xxxxxxxxxx | ||
| Share capital: £ 12,000 | ||
| R.C.S. Luxembourg: B 125.912 | ||
| By: | /s/ A. Xxxxxxx Xxxxx | |
| Name: A. Xxxxxxx Xxxxx, Authorized Signatory | ||
| DIGITAL REALTY (PARIS2) SCI, a French Société civile immobiliere | ||
| By: | /s/ A. Xxxxxxx Xxxxx | |
| Name: A. Xxxxxxx Xxxxx, duly authorized | ||
Signature Page
| DIGITAL SINGAPORE JURONG EAST PTE. LTD., | ||
| a Singapore private company limited by shares | ||
| By: | /s/ A. Xxxxxxx Xxxxx | |
| Name: A. Xxxxxxx Xxxxx, Authorized Person | ||
| DIGITAL REALTY (WELWYN) S.À X.X. a Luxembourg Société à responsabilité limitée | ||
| Registered office: 00, Xxxxxxxxx xx Xxxxxx Xxxxx | ||
| X-0000, Xxxxxxxxxx | ||
| Share capital: £ 12,000 | ||
| R.C.S. Luxembourg: B 125.239 | ||
| By: | /s/ A. Xxxxxxx Xxxxx | |
| Name: A. Xxxxxxx Xxxxx, Authorized Signatory | ||
| DIGITAL REALTY (BLANCHARDSTOWN) LIMITED, an Irish private company limited by shares | ||
| By: | /s/ Xxxxxx X. Xxxxx | |
| Name: Xxxxxx X. Xxxxx, | ||
| Title: Director | ||
| DIGITAL NETHERLANDS IV, B.V., a Dutch private company with limited liability | ||
| By: | /s/ A. Xxxxxxx Xxxxx | |
| Name: A. Xxxxxxx Xxxxx, Authorized Person | ||
Signature Page
| PARENT GUARANTOR: | ||
| DIGITAL REALTY TRUST, INC., a Maryland corporation | ||
| By: | /s/ A. Xxxxxxx Xxxxx | |
| Name: A. Xxxxxxx Xxxxx | ||
| Title: Chief Financial Officer and | ||
| Chief Investment Officer | ||
Signature Page
| ADMINISTRATIVE AGENT: | ||
| CITIBANK, N.A. | ||
| By: | /s/ Xxxx X. Xxxxxxx | |
| Name: Xxxx X. Xxxxxxx | ||
| Title: Vice President | ||
Signature Page
| CITIBANK, N.A., | ||
| as a Lender | ||
| By: | /s/ Xxxx X. Xxxxxxx | |
| Name: Xxxx X. Xxxxxxx | ||
| Title: Vice President | ||
Signature Page
| CITIBANK, N.A., SINGAPORE BRANCH, | ||
| as a Lender | ||
| By: | /s/ Xxxx Xxxxxx | |
| Name: Xxxx Xxxxxx | ||
| Title: Managing Director | ||
Signature Page
| CITIBANK INTERNATIONAL PLC, | ||
| as a Lender | ||
| By: | /s/ Xxxx Xxxxxxxxx | |
| Name: Xxxx Xxxxxxxxx | ||
| Title: Vice President | ||
Signature Page
| CITIBANK N.A., SYDNEY BRANCH, | ||
| as a Lender | ||
| By: | /s/ Xxxxxxx Xxxx | |
| Name: Xxxxxxx Xxxx | ||
| Title: Managing Director | ||
| By: | /s/ Xxxxxxx Xxxx | |
| Name: Xxxxxxx Xxxx | ||
| Title: Director | ||
Signature Page
| BANK OF AMERICA, N.A. | ||
| as a Lender | ||
| By: | /s/ Xxxxxxx X. Xxxxx | |
| Name: Xxxxxxx X. Xxxxx | ||
| Title: Vice President | ||
Signature Page
| JPMORGAN CHASE BANK, N.A. | ||
| as a Lender | ||
| By: | /s/ Xxxxxxxx Xxxxxx | |
| Name: Xxxxxxxx Xxxxxx | ||
| Title: Executive Director | ||
Signature Page
| BARCLAYS BANK PLC, | ||
| as a Lender | ||
| By: | /s/ Xxxx Xxxxxx | |
| Name: Xxxx Xxxxxx | ||
| Title: Vice President | ||
Signature Page
| CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH | ||
| as a Lender | ||
| By: | /s/ Xxxxxxx Xxxxxxxxxxx | |
| Name: Xxxxxxx Xxxxxxxxxxx | ||
| Title: Authorized Signatory | ||
| By: | /s/ Xxxx-Xxxx Vauclair | |
| Name: Xxxx-Xxxx Vauclair | ||
| Title: Authorized Signatory | ||
Signature Page
| DEUTSCHE BANK AG NEW YORK BRANCH, | ||
| as a Lender | ||
| By: | /s/ Xxxxx Xxxxxxx | |
| Name: Xxxxx Xxxxxxx | ||
| Title: Vice President | ||
| By: | /s/ Xxxxxx Xxxxxxx | |
| Name: Xxxxxx Xxxxxxx | ||
| Title: Vice President | ||
Signature Page
| DEUTSCHE BANK AG SINGAPORE BRANCH, | ||
| as a Lender | ||
| By: | /s/ Xxxxx Xxxxx Xxx-Xxxx | |
| Name: Xxxxx Xxx-Xxxx, Xxxxx | ||
| Title: Director | ||
| By: | /s/ Xxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxx | |
| Name: Xxxxxxx, Xxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
Signature Page
| Xxxxxxx Sachs Bank USA, | ||
| as a Lender | ||
| By: | /s/ Xxxxxxxx Xxxxxxx | |
| Name: Xxxxxxxx Xxxxxxx | ||
| Title: Authorized Signatory | ||
Signature Page
| ROYAL BANK OF CANADA, | ||
| as a Lender | ||
| By: | /s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx | ||
| Title: Authorized Signatory | ||
Signature Page
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, | ||
| as a Lender | ||
| By: | /s/ Xxxxx X. Stacker | |
| Name: Xxxxx X. Stacker | ||
| Title: Vice President | ||
Signature Page
| COMPASS BANK, | ||
| as a Lender | ||
| By: | /s/ Xxxxx Xxxxxx | |
| Name: Xxxxx Xxxxxx | ||
| Title: Senior Vice President | ||
Signature Page
| HSBC BANK USA, N.A. | ||
| as a Lender | ||
| By: | /s/ Xxxxxxx Xxxxxxx | |
| Name: Xxxxxxxx Xxxxxxx | ||
| Title: Vice President | ||
Signature Page
| LLOYDS BANK PLC, formerly known as Lloyds TSB Bank plc | ||
| as a Lender | ||
| By: | /s/ Xxxxxxx Xxxxxxxxx | |
| Name: Xxxxxxx Xxxxxxxxx | ||
| Title: Assistant Vice President G011 | ||
| By: | /s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx | ||
| Title: Vice President W011 | ||
Signature Page
| SUNTRUST BANK, | ||
| as a Lender | ||
| By: | /s/ Xxxxx X. Xxxxxxxx | |
| Name: Xxxxx X. Xxxxxxxx | ||
| Title: Senior Vice President | ||
Signature Page
| THE ROYAL BANK OF SCOTLAND PLC, | ||
| as a Lender | ||
| By: | /s/ Xxxxxxxx Xxxxxx | |
| Name: Xxxxxxxx Xxxxxx | ||
| Title: Vice President | ||
Signature Page
| THE BANK OF NOVA SCOTIA, SINGAPORE BRANCH, | ||
| as a Lender | ||
| By: | /s/ Xxxxxxx Low Boon Tiong | |
| Name: Xxxxxxx Low Boon Tiong | ||
| Title: Director, Head of Operations | ||
Signature Page
| SCOTIABANK EUROPE PLC, | ||
| as a Lender | ||
| By: | /s/ Xxxx X’Xxxxxx | |
| Name: Xxxx X’Xxxxxx | ||
| Title: Head of Credit Risk Control | ||
| By: | /s/ Xxxxx Caller | |
| Name: Xxxxx Caller | ||
| Title: Manager, Credit Risk Control | ||
Signature Page
| TD Bank, N.A., | ||
| as a Lender | ||
| By: | /s/ Xxxxxxx X. Xxxxxx | |
| Name: Xxxxxxx X. Xxxxxx | ||
| Title: Vice President | ||
Signature Xxxx
| XXXXXX XXXXXXX BANK, N.A., | ||
| as a Lender | ||
| By: | /s/ Xxxx Xxxxxxx | |
| Name: Xxxx Xxxxxxx | ||
| Title: Authorized Signatory | ||
Signature Page
| SUMITOMO MISUI BANKING CORPORATION, | ||
| as a Lender | ||
| By: | /s/ Xxxxxxx X. Xxxx | |
| Name: Xxxxxxx X. Xxxx | ||
| Title: General Manager | ||
Signature Page
| US BANK NATIONAL ASSOCIATION, a national banking association, | ||
| as a Lender | ||
| By: | /s/ Xxxxxxx Xxxxxx | |
| Name: Xxxxxxx Xxxxxx | ||
| Title: Vice President | ||
Signature Page
| UNION BANK, N.A., | ||
| as a Lender | ||
| By: | /s/ Xxxx Xxxx | |
| Name: Xxxx Xxxx | ||
| Title: Vice President | ||
Signature Page
| AUSTRALIAN AND NEW ZEALAND BANKING GROUP, | ||
| as a Lender | ||
| By: | /s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx | ||
| Title: Director | ||
Signature Page
| BRANCH BANKING AND TRUST COMPANY, | ||
| as a Lender | ||
| By: | /s/ Ahaz X. Xxxxxxxxx | |
| Name: Ahaz X. Xxxxxxxxx | ||
| Title: Assistant Vice President | ||
Signature Page
| XXXXXXX XXXXX BANK, N.A., | ||
| as a Lender | ||
| By: | /s/ Xxxxxx X. Xxxxx | |
| Name: Xxxxxx X. Xxxxx | ||
| Title: Senior Vice President | ||
Signature Page
| CITY NATIONAL BANK, a national banking association | ||
| as a Lender | ||
| By: | /s/ Xxxx Xxxxxxxx | |
| Name: Xxxx Xxxxxxxx | ||
| 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: | ||||
|
a Maryland limited partnership | ||||
| By: | DIGITAL REALTY TRUST, INC., | |||
| its sole general partner | ||||
| By: | /s/ A. Xxxxxxx Xxxxx | |||
| Name: A. Xxxxxxx Xxxxx | ||||
| Title: Chief Financial Officer and Chief | ||||
| Investment Officer | ||||
| DIGITAL REALTY TRUST, INC., a Maryland corporation | ||||
| By: | /s/ A. Xxxxxxx Xxxxx | |||
| Name: A. Xxxxxxx Xxxxx | ||||
| Title: Chief Financial Officer and Chief Investment Officer | ||||
Signature Page to Consent
