Amendment No. 1 To Revolving Credit Agreement
Exhibit 10.16
Amendment
No. 1 To Revolving
Credit Agreement
This
Amendment No. 1 To
Revolving Credit Agreement (this “Amendment”)
is made as of June 9, 2005, by and among AMB
Amagasaki TMK, a Japanese tokutei mokuteki
kaisha, AMB Narita 1-1 TMK, a Japanese tokutei mokuteki kaisha, AMB Narita 2 TMK, a Japanese
tokutei mokuteki kaisha, AMB Japan Finance Y.K., a Japanese yugen kaisha (collectively, the
“Borrowers”), AMB
Property, L.P., a Delaware limited partnership (“AMB LP”), AMB Property
Corporation, a Maryland corporation (“AMB Corporation”, and together with AMB LP, the
“Guarantors”), the Banks listed on the signature
pages hereof, Sumitomo Mitsui Banking
Corporation, as Administrative Agent, Sole Lead Arranger and
Bookmanager, Mizuho Corporate
Bank, Ltd., as Syndication Agent,
Shinsei Bank, and UFJ
Bank, as
Documentation Agents,
International Commercial Bank
of China, and Bank of China
Limited, as Senior Managing Agents, and
The Bank of Nova Scotia, and
Oversea-Chinese Banking Corporation, as Managing Agents.
Witnesseth:
Whereas, the Borrowers, the Guarantors and the Banks have entered into that
certain Revolving Credit Agreement, dated as of June 29, 2004 (the “Credit Agreement”); and
Whereas, the parties desire to modify the Credit Agreement upon 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 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. FMV Cap Rate. The definition of “FMV Cap Rate” is hereby deleted and the
following substituted therefor: ‘“FMV Cap Rate’ means eight percent (8%).”
3. Non-Recourse Indebtedness. The definition of “Non-Recourse Indebtedness” is
hereby deleted and the following substituted therefor:
“Non-Recourse Indebtedness” means Indebtedness with respect to which
recourse for payment is limited to (i) specific Property or Properties
encumbered by a Lien securing such Indebtedness and/or another Person so
long as there is no recourse to AMB LP or AMB Corporation, or (ii) any
Consolidated Subsidiary or Investment Affiliate (provided that if an
entity is a partnership, there is no recourse to AMB LP or AMB
Corporation as a general partner of such partnership); provided,
however, that personal recourse of AMB LP or AMB Corporation for any
such Indebtedness for fraud, misrepresentation, misapplication of cash,
waste, environmental claims and liabilities and other circumstances
customarily excluded by institutional lenders from exculpation
provisions and/or included in separate indemnification agreements
in. non-recourse financing of real estate shall not, by itself, prevent
such Indebtedness from being characterized as Non-Recourse Indebtedness.
For purposes of the foregoing and for the avoidance of doubt, (a) if the
Indebtedness is partially guaranteed by AMB LP or AMB Corporation, then
the portion of such Indebtedness that is not so guaranteed shall still be
Non-Recourse Indebtedness if it otherwise satisfies the requirements in
this definition, and (b) if the liability of AMB LP or AMB Corporation
under any such guaranty is itself limited to specific Property or
Properties, then such Indebtedness shall still be Non-Recourse
Indebtedness if such Indebtedness otherwise satisfies the requirements of
this definition.
4. Foreign Property Limit. The reference in Section 5.8(i) to “twenty
percent (20%)” is hereby deleted and “thirty-five percent (35%)” substituted therefor.
5. Development Activities. The reference in Section 5.8(k) to “fifteen
percent (15%)” is hereby deleted and “twenty percent (20%)” substituted therefor.
6. Amendments and Waivers. Section 9.5(b) is hereby deleted and the following
substituted therefor:
Notwithstanding the foregoing, in the event that the Guarantors or the
Existing Credit Agreement Agent propose to modify, waive or restate, or
request a consent or approval with respect to, the financial covenants,
reporting requirements or non-monetary Events of Default (and related
definitions) of the Existing Credit Agreement in writing (which may
include a written waiver of an existing actual or potential Default or
Event of Default that is intended to be eliminated by such modification,
restatement or waiver) (individually, a “Covenant Modification”),
simultaneously with the written submission of such proposal or request to
the Existing Credit Agreement bank group (such proposal or request being
the “Existing Credit Agreement Proposal”). Borrower and the
Guarantors shall deliver a duplicative proposal or request for a Covenant
Modification with respect to the Facility to the Administrative Agent and
the Banks. Borrower shall pay the same percentage fees (if any) to the
Administrative Agent and the Banks as the Guarantors shall pay to the
Existing Credit Agreement Agent (or agents) and the lenders under the
Existing Credit Agreement in connection with such modification,
restatement, waiver, consent or approval. The decision whether to accept
such Covenant Modification shall require the consent of the Required
Banks hereunder unless such Covenant Modification is of the nature that
would require the consent of all of the Banks; it being understood that
even if the applicable Banks shall fail to consent to
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the Covenant Modification, the provisions of the Existing
Credit Agreement, as so modified, restated or waived, or the
granting of any consent or approval thereunder, in writing by the
“Required Banks” (as defined in the Existing Credit Agreement)
thereunder (or if applicable, all of the lenders thereunder) shall
control. Notwithstanding the foregoing, in no event shall
Administrative Agent and the Banks be required to accept any
Covenant Modification that modifies, amends or waives the
Administrative Agent’s rights under this Agreement with respect to
the Banks as the “agent” under the Facility or subjects the
Administrative Agent, as the “agent” under the Facility to any
additional obligations to the Banks pursuant to this Agreement.
7. Effective Date. This Amendment shall become effective upon receipt by the
Administrative Agent of counterparts hereof signed by the Borrowers and the Required Banks
(the date of such receipt being deemed the “Effective Date”).
8. Representations and Warranties. Each Borrower hereby represents and warrants
that as of the Effective Date, all the representations and warranties set forth in the Credit
Agreement, as amended hereby (other than representations and warranties which expressly speak
as of a different date), are true and complete in all material respects.
9. 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.
10. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the law of the State of New York.
11. 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.
12. 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.
13. 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, each Borrower confirms and ratifies all of the terms, covenants and
conditions of the Credit Agreement in all respects.
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In
Witness Whereof, this Agreement has been duly executed as of the date first above
written.
Borrowers:
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AMB
Amagasaki TMK, a Japanese tokutei mokuteki kaisha Sanno Park Tower 00-0, Xxxxxxxxx 0-xxxxx Xxxxxxx-xx, Xxxxx Xxxxxxxxx Xxxxxx Xxxxx Director |
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AMB
Narita 1-1 TMK, a Japanese tokutei mokuteki kaisha Sanno Park Tower 00-0, Xxxxxxxxx 0-xxxxx Xxxxxxx-xx, Xxxxx Xxxxxxxxx Xxxxxx Xxxxx Director |
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AMB Narita 2 TMK, a Japanese tokutei mokuteki kaisha Sanno Park Tower 00-0, Xxxxxxxxx 0-xxxxx Xxxxxxx-xx, Xxxxx Xxxxxxxxx Xxxxxx Xxxxx Director |
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AMB
Japan Finance Y.K., a Japanese yugen kaisha Sanno Park Tower 00-0, Xxxxxxxxx 0-xxxxx Xxxxxxx-xx, Xxxxx Wyler Xxxxxxxxx Xxxxxx Director |
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For
purposes of agreeing to be
bound by the provisions of
this Amendment:
bound by the provisions of
this Amendment:
AMB Property, L.P.,
a Delaware limited partnership
a Delaware limited partnership
By:
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AMB Property Corporation, a Maryland corporation, its sole general partner |
By: | /s/ Xxxxx Xxxxx
|
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Xxxxx Xxxxx Senior Vice President |
AMB Property Corporation,
a Maryland corporation
a Maryland corporation
By:
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/s/ Xxxxx Xxxxx
|
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Xxxxx Xxxxx Senior Vice President |
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Sumitomo Mitsui Banking Corporation, as Administrative Agent, Sole Lead Arranger and Bookmanager and as a Bank |
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By: | /s/ Xxxxxxxx Xxxx
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Name: Title: |
Xxxxxxxx Xxxx General Manager Global Client Business Department |
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Mizuho Corporate Bank, Ltd., as Syndication Agent and as a Bank |
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By: | /s/ Xxxxxx Xxxxxxxxx
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Name: Title: |
Xxxxxx Xxxxxxxxx Deputy General Manager |
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Shinsei
Bank, Limited, as a Bank |
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By: | /s/ Xxxxxxx Xxxxxx
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Name: Title: |
Xxxxxxx Xxxxxx General Manager(Unit), Strategic Business Unit IV |
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UFJ Bank, as Documentation Agent and as a Bank |
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By: | /s/ Xxxxx XxXxxxxx
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Name: Title: |
Xxxxx XxXxxxxx Vice President |
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The International Commercial Bank of China, as Senior Managing Agent and as a Bank |
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By: | /s/ Nae-Yes Lung
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Name: Title: |
Nae-Yes Lung EVP & General Manager |
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Bank Of China Limited, as Senior Managing Agent and as a Bank |
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By: | /s/ Li Yu Hua
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Name: Title: |
Li Yu Hua General Manager of Tokyo Branch |
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The Bank Of Nova Scotia, as Managing Agent and as a Bank |
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By: | /s/ Xxxx Xxxx Hung
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Name: Title: |
Xxxx Xxxx Hung Vice President & Country Head |
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Oversea-Chinese Banking Corporation, as Managing Agent and as a Bank |
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By: | /s/ Ong Sing Yik
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Name: Title: |
ONG, SING YIK GENERAL MANAGER |
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The Norinchukin Bank, New York Branch, as a Bank |
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By: | /s/ Xxxxxxxx Xxxxx
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Name: Title: |
Xxxxxxxx Xxxxx Joint General Manager |
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The Sumitomo Trust & Banking Co., Ltd., | ||||||
New York Branch, | ||||||
as a Bank | ||||||
By: | /s/ Xxxxxxx Xxxxxxxx
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Name: Title: | Xxxxxxx Xxxxxxxx Vice President and Manager |
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Saitama Resona Bank, Ltd., as a Bank |
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By: | /s/ Xxxxxx Xxxxxx
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(SEAL) | ||||
Name: Title: |
Xxxxxx Xxxxxx General Manager |
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