EXHIBIT 10.1
AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is made as of May 12, 2005, by and among AMB PROPERTY, L.P., a
Delaware limited partnership (the "Borrower"), AMB PROPERTY CORPORATION, as
Guarantor (the "Guarantor"), the BANKS listed on the signature pages hereof,
JPMORGAN CHASE BANK, N.A. (successor to JPMorgan Chase Bank), as Administrative
Agent, J.P. MORGAN EUROPE LIMITED, as Administrative Agent, BANK OF AMERICA,
N.A., as Syndication Agent, J.P. MORGAN SECURITIES INC. and BANC OF AMERICA
SECURITIES LLC, as Joint Lead Arrangers and Joint Bookrunners, COMMERZBANK
AKTIENGESELLSCHAFT NEW YORK AND GRAND CAYMAN BRANCHES, PNC BANK, NATIONAL
ASSOCIATION, and WACHOVIA BANK, N.A., as Documentation Agents, KEYBANK NATIONAL
ASSOCIATION, THE BANK OF NOVA SCOTIA, ACTING THROUGH ITS SAN FRANCISCO AGENCY
and WELLS FARGO BANK, N.A., as Managing Agents, and ING REAL ESTATE FINANCE
(USA) LLC, SOUTHTRUST BANK and UNION BANK OF CALIFORNIA, N.A., as Co-Agents.
WITNESSETH:
WHEREAS, the Borrower and the Banks have entered into the Second Amended
and Restated Revolving Credit Agreement, as of June 1, 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 Borrower or the
General Partner, or (ii) any Consolidated Subsidiary or Investment
Affiliate (provided that if an entity is a partnership, there is no
recourse to Borrower or General Partner as a general partner of such
partnership); provided, however, that personal recourse of Borrower
or General Partner 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 the Borrower or the General
Partner, 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 Borrower or the General Partner under any such guaranty
is itself limited to specific Property or Properties, then such
Indebtedness shall still be Non-Recourse Indebted-
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ness 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. Effective Date. This Amendment shall become effective upon
receipt by the Administrative Agent of counterparts hereof signed by the
Borrower and the Required Banks (the date of such receipt being deemed the
"Effective Date").
7. Representations and Warranties. 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.
8. 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.
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9. Governing Law. This Amendment shall be governed by, and construed
in accordance with, the law of the State of New York.
10. 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.
11. 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.
12. 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, the 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.
BORROWER: AMB PROPERTY, L.P., a Delaware limited partner-
ship
By: AMB PROPERTY CORPORATION, a Maryland
corporation and its sole general partner
By: /s/ Michael A. Coke
---------------------------------------
Name: Michael A. Coke
Title: Executive Vice President and
Chief Financial Officer
FOR PURPOSES OF AGREEING TO BE
BOUND BY THE PROVISIONS OF
THIS AMENDMENT:
AMB PROPERTY CORPORATION
By: /s/ Michael A. Coke
---------------------------------------
Name: Michael A. Coke
Title: Executive Vice President and
Chief Financial Officer
JPMORGAN CHASE BANK, N.A., as Administrative
Agent and as a Bank
By: /s/ Susan M. Tate
-------------------------------------------
Name: SUSAN M. TATE
Title: VICE PRESIDENT
J.P. MORGAN EUROPE LIMITED, as Administrative
Agent
By: /s/ Paul Clayton
-------------------------------------------
Name: PAUL CLAYTON
Title: VICE PRESIDENT
By: /s/ Stephen Gillies
-------------------------------------------
NAME: STEPHEN GILLIES
TITLE: ASSOCIATE
BANK OF AMERICA, N.A.,
as Syndication Agent and as a Bank
By: /s/ James P. Johnson
-------------------------------------------
Name: JAMES P. JOHNSON
Title: Senior Vice President
COMMERZBANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES, as Documentation Agent and
as a Bank
By: /s/ David Goldman
-------------------------------------------
Name: DAVID GOLDMAN
Title: VICE PRESIDENT
By: /s/ Judy Tam
-------------------------------------------
Name: JUDY TAM
Title: ASSISTANT VICE PRESIDENT
WACHOVIA BANK, N.A., as Documentation Agent
and as a Bank
By: /s/ Randy Matthaus
-------------------------------------------
Name: Randy Matthaus
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION,
as Documentation Agent and as Bank
By:/s/ DAVID MARTENS
----------------------------------
Name: DAVID MARTENS
Title: SVP
THE BANK OF NOVA SCOTIA, ACTING
THROUGH ITS SAN FRANCISCO AGENCY,
as Managing Agent and as a Bank
By:/s/ MARK SPARROW
----------------------------------
Name: MARK SPARROW
Title: DIRECTOR
WELLS FARGO BANK, N.A.,
as Managing Agent and as a Bank
By:/s/ Juan Carlos Wallace
----------------------------------
Name: Juan Carlos Wallace
Title: Assistant Vice President
KEYBANK NATIONAL ASSOCIATION,
as Managing Agent and as a Bank
By:/s/ Jane E. McGrath
----------------------------------
Name: Jane E. McGrath
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.,
as Co-Agent and as a Bank
By: /s/ Jack Kissone
----------------------------------
Name: Jack Kissone
Title: Vice President
ING REAL ESTATE FINANCE (USA) LLC,
as Co-Agent and as a Bank
By: /s/ Daniel Sliwak
----------------------------------
Name: Daniel Sliwak
Title: Vice President
THE NORTHERN TRUST COMPANY,
as a Bank
By: /s/ Eleanor Grumman
--------------------------------
Name : Eleanor Grumman
Title: Vice President
SOCIETE GENERALE,
as a Bank
By: /s/ Scott Gosslee
--------------------------------
Name : Scott Gosslee
Title: Director
ALLIED IRISH BANK PLC,
as a Bank
By: /s/ Anthony O'Reilly
--------------------------------
Name: Anthony O'Reilly
Title: Vice President
Investment Advisor to
AIB Debt Management, Limited
By: /s/ Denise Magyer
--------------------------------
Name: Denise Magyer
Title: Vice President
Investment Advisor to
AIB Debt Management, Limited
SUMITOMO MITSUI BANKING CORPORATION,
as a Bank
By: /s/ Masakazu Hasegawa
---------------------
Name: Masakazu Hasegawa
Title: Joint General Manager
CHANG HWA COMMERCIAL BANK, LTD.,
LOS ANGELES BRANCH, as a Bank
By: /s/ Chen-Yu Chen
--------------------------------
Name: Chen-Yu Chen
Title: V.P. & General Manager
LASALLE BANK NATIONAL ASSOCIATION,
as a Bank
By: /s/ Joan C. Hein
--------------------------------
Name: Joan C. Hein
Title: GSVP
MIZUHO CORPORATE BANK LTD., as a Bank
By: /s/ Noel Purcell
--------------------------------
Name: Noel Purcell
Title: Senior Vice President