Exhibit 10.1
AMENDMENT NO. 2 TO
THE
REVOLVING CREDIT
AGREEMENT
Dated as of June 13,
2008
AMENDMENT NO. 2 TO THE REVOLVING
CREDIT AGREEMENT (this
“ Amendment ”) among Digital Realty
Trust, L.P. (the “ Borrower ”); Citicorp
North America, Inc. (“ CNAI ”), as
administrative agent (the “ Administrative
Agent ”), and the financial institutions party to the
Credit Agreement referred to below (collectively, the “
Lender Parties ”).
PRELIMINARY
STATEMENTS:
(1) The Borrower, Digital Realty
Trust, Inc. (the “ Parent Guarantor ”),
the subsidiaries of the Borrower party thereto, the Lenders from
time to time party thereto, the other Lender Parties, the
Administrative Agent and the Syndication Agent have entered into a
Revolving Credit Agreement dated as of August 31, 2007 (as
amended prior to the date hereof, the “ Credit
Agreement ”). Capitalized terms not otherwise defined
in this Amendment have the same meanings as specified in the Credit
Agreement.
(2) The Borrower, the Administrative
Agent and the Required Lenders have agreed to amend the Credit
Agreement on the terms and subject to the conditions hereinafter
set forth.
SECTION 1. Amendments to Credit
Agreement . The Credit Agreement is, upon the occurrence of the
Amendment Effective Date (as defined in Section 3 below),
hereby amended as follows:
(a) Section 1.01 of the Credit
Agreement is hereby amended by adding thereto the following new
definitions in their appropriate alphabetical order:
“ Note Agreement
” means that certain Note Purchase and Private Shelf
Agreement dated as of July 24, 2008, by and among Borrower,
Parent Guarantor, each of the entities party thereto from time to
time as Subsidiary Guarantors (as defined therein), PIM, and the
note purchasers party thereto or bound thereby from time to
time.
“ Note Documents
” means the Note Agreement, together with all notes,
instruments and other agreements entered into and delivered in
connection therewith from time to time.
“ PIM ”
means Prudential Investment Management, Inc., and its successors
and assigns under the Note Documents.
(b) The definition of “
Negative Pledge ” set forth in
Section 1.01 of the Credit Agreement is hereby amended by
adding at the end thereof immediately before the period the
following: “; provided , however , that
(a) an agreement that conditions a Person’s ability to
encumber its assets upon the maintenance of one or more specified
ratios that limit such Person’s ability to encumber its
assets but that do not generally prohibit the encumbrance of its
assets, or the encumbrance of specific assets, shall not constitute
a Negative Pledge, and (b) any provision of the Note Documents
restricting the ability of any Loan Party to encumber its assets
shall be deemed to not constitute a Negative Pledge so long as such
provision is generally consistent with a comparable provision of
the Loan Documents.”
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Digital Realty – Amend No. 2
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(c) The definition of “
Unencumbered Asset Conditions ” set forth in
Section 1.01 of the Credit Agreement is hereby amended by
deleting the first clause (i) and clause (j) in their
entirety and substituting the following therefor: “(i) is an
Asset with respect to which the Borrower directly, or indirectly
through such Subsidiary owner, has the right to take the following
actions without the need to obtain the consent of any Person:
(i) to create Liens on such Asset as security for the
Obligations of the Loan Parties under or in respect of the Loan
Documents, and (ii) to sell, transfer or otherwise dispose of
such Asset ( provided , however , that in the case of
the foregoing clauses (i)(i) and (i)(ii), (x) an agreement
that conditions a Person’s ability to create Liens on its
assets or to sell, transfer or otherwise dispose of its assets upon
the maintenance of one or more specified ratios but that does not
otherwise generally prohibit the creation of Liens on assets or the
sale, transfer or disposition of assets, or the taking of such
actions with respect to specific assets, shall not be deemed a
violation of or prohibition under this clause (i), and (y) any
restriction under the Note Documents on sales, transfers or other
dispositions of assets during the existence of a default or event
of default (or any such restriction under the Note Documents that
would apply if a default or event of default would result from any
such sales, transfers or other dispositions) shall not be deemed a
violation of or prohibition under this clause (i) so long as
such provision is generally consistent with a comparable provision
of the Loan Documents), (j) is owned directly by the Borrower
or a Guarantor, and (k) in the case of ownership by a
Guarantor, one-hundred percent (100%) of all of the equity
interests (other than directors’ qualifying shares) and
voting interests (such ownership being defined as “
Wholly-Owned ”) of such Guarantor are owned by
one or more of the Borrower and/or any other Wholly-Owned
Subsidiary of the Borrower at such time.”
(d) The following new
Section 5.01(s) is hereby added to the Credit Agreement
immediately following Section 5.01(r) thereof:
“(s) Certain Amendments to
Note Documents . If any of the Note Documents is modified
(i) to add covenants or events of default that are not
provided for in this Agreement, or (ii) to make covenants or
events of default that are contained in the Note Documents
immediately prior to such modification (and that are contained in
this Agreement immediately prior to such modification) more
restrictive than such covenants or events of default were
immediately prior to such modification, then (x) such
additional or more restrictive covenants or events of default shall
immediately and automatically be incorporated by reference in this
Agreement as if set forth fully herein, mutatis mutandis, effective
as of the time when such additional or more restrictive covenants
or events of default become effective under the Note Documents, and
no such provision may thereafter be waived, amended or modified
under this Agreement except in accordance with the provisions of
Section 9.01, and (y) the Borrower shall promptly, and in
any event within five (5) Business Days of entering into any
such modification, so advise the Administrative Agent thereof in
writing. Thereafter, upon the request of the Administrative Agent
or the Required Lenders, the Loan Parties shall enter into an
amendment to this Agreement evidencing the incorporation of such
incremental or more restrictive covenant or event of
default.”
(e) Section 5.02(a)(viii) is
hereby renumbered “(ix)”, and a new Section 5.02
(a)(viii) is hereby inserted in the Credit Agreement immediately
following Section 5.02(a)(vii) but before
“and”:
“(viii) Liens on property of
the Borrower or its Subsidiaries (other than Unencumbered Assets)
securing Debt under the Note Documents so long as no Default or
Event of Default arises therefrom;”
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Digital Realty – Amend No. 2
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(f) Section 5.02(k) of the
Credit Agreement is hereby amended (i) by renumbering clauses
(v) and (vi) thereof to read “(viii)” and
“(ix)”, and (ii) by adding thereto immediately
after the words “Administrative Agent; (iv)” on lines
11 and 12 thereof the following:
“(iv) customary provisions
under Debt permitted under Section 5.02(b) which, following a
default or event of default in respect of such Debt, limit the
ability of any Person to make payments on Debt described in
Section 5.02(b)(i); (v) customary provisions under any
secured Debt permitted under Section 5.02(b) which limit the
ability of any Person to transfer the assets encumbered by Liens
securing such Debt; (vi) provisions under the Note Documents
(including affirmative and negative covenants) that are generally
consistent with comparable provisions under the Loan Documents;
(vii)”
(g) Section 5.02(m) of the
Credit Agreement hereby amended by (i) inserting the words
“or the Note Documents” into clause (i) thereof
immediately following the words “the Loan Documents”,
(ii) by changing subclause “(E)” in clause
(iv) thereof to be read “(F)”, and (iii) by
inserting the following new clause (E) into clause
(iv) thereof immediately prior to “, or”:
“(E) any Non-Recourse Debt permitted under
Section 5.02(b)(ii)(G)”.
(h) Section 5.02(n) of the
Credit Agreement is hereby amended by (i) deleting the word
“not” in the first line thereof, (ii) renumbering
clause (vii) thereof to read “(viii)”, and
(iii) adding thereto immediately after the words “Loan
Documents; (vi)” in line 13 thereof the following:
“activities permitted under
the Loan Documents, including without limitation the incurrence of
Debt (and guarantees thereof) permitted under Sections 5.02(b)(iii)
and (iv); (vii)”
SECTION 2. Representations and
Warranties . The Borrower hereby represents and warrants that
the representations and warranties contained in each of the Loan
Documents (as amended or supplemented to date, including pursuant
to this Amendment) are true and correct on and as of the Amendment
Effective Date (defined below), before and after giving effect to
this Amendment (including, without limitation, the representation
and warranty set forth in Section 4.01(g) of the Credit
Agreement, as amended by this Amendment), as though made on and as
of such date (except for any such representation and warranty that,
by its terms, refers to an earlier date, in which case as of such
earlier date).
SECTION 3. 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 (i) counterparts of this Amendment executed by
the Borrower, the Administrative Agent and all consenting Lenders
(including, at a minimum, those Lenders comprising Required
Lenders) or, as to any of such Lenders, advice satisfactory to the
Administrative Agent that such Lender has executed this Amendment,
and (ii) the consent attached hereto (the “
Consent ”) executed by each of the
Guarantors.
(b) The representations and
warranties set forth in each of the Loan Documents shall be correct
in all material respects on and as of the Amendment Effective Date,
before and after giving effect to this Amendment, as though made on
and as of such date (except for any such representation and
warranty that, by its terms, refers to a specific date other than
the Amendment Effective Date, in which case as of such specific
date).
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Digital Realty – Amend No. 2
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(c) No event shall have occurred and
be continuing, or shall result from the effectiveness of this
Amendment, that constitutes a Default.
(d) All of the fees and 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.
(e) The Administrative Agent shall
have received payment in full of an amendment fee equal to 0.10% of
the sum of the Commitments of those Lenders that have executed and
delivered to the Administrative Agent a signature page to this
Amendment, which fee shall be for the ratable benefit of such
Lenders.
(f) The Administrative Agent shall
have received copies, certified by the Borrower as correct and
complete, of the Note Agreement and the other Note Documents, which
shall be in form and substance satisfactory to the Administrative
Agent.
The effectiveness of this Amendment
is conditioned upon the accuracy of the factual matters described
herein. This Amendment is subject to th