Exhibit 10.4
FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT TO REVOLVING
CREDIT AGREEMENT (this “ First Amendment ”) is
made as of Oct 23, 2007, by and among AMB JAPAN FINANCE Y.K., as
Initial Borrower (the “ Initial Borrower ”),
each Qualified Borrower listed on the signature pages hereto (each
of the Initial Borrower and each Qualified Borrower, collectively,
“ Borrower ”), AMB PROPERTY, L.P., as Guarantor
(“ AMB LP ”), AMB PROPERTY CORPORATION, as
Guarantor (“ AMB Corporation ” and together with
AMB LP, the “ Guarantors ”), the Alternate
Currency Banks (as hereinafter defined), SUMITOMO MITSUI BANKING
CORPORATION, as Administrative Agent.
W I T N E S S
E T H :
WHEREAS, each of Borrower, the
Guarantors and the Banks (as in the Credit Agreement) are party to
that certain Amended and Restated Revolving Credit Agreement, dated
as of June 23, 2006 (as the same may be amended, modified,
extended or restated from time to time, 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. Amendment to Defined
Terms . (a) Section 1.1 of the Credit Agreement is
hereby amended by adding the following new defined terms in the
appropriate alphabetical order:
“
Alternate Currency Advances ” means the RMB
Advances.
“
Alternate Currency Bank ” means any Bank that is a
party to the RMB Credit Agreement.
“
Alternate Currency Borrower ” means any RMB
Borrower.
“
Alternate Currency Borrower Default ” means any RMB
Borrower Default.
“
Alternate Currency Borrower Event of Default ” means
any RMB Borrower Event of Default.
“
Alternate Currency Collateral ” means RMB
Collateral.
“ Alternate Currency
Commitment ” means the RMB Commitment.
“ Alternate Currency
Commitment Proportion ” means the RMB Commitment
Proportion.
“ Alternate Currency Event
of Default ” means an RMB Event of Default.
“ Alternate Currency
Facility ” means the credit facility contemplated by the
RMB Loan Documents.
“ Alternate Currency Letters
of Credit ” means RMB Letters of Credit.
“ Alternate Currency Letters
of Credit Usage ” means the RMB Letter of Credit
Usage.
“ Alternate Currency Loan
Documents ” means RMB Loan Documents.
“ Immediate Alternate
Currency Event of Default ” means any RMB Event of
Default described in Clause 11.1(v), (vi) or (vii).
“ Initial RMB Borrower
” means Wealth Zipper (Shanghai) Property Development Co.,
Ltd.
“ Majority Alternate
Currency Banks ” means the Majority RMB Lenders.
“ Majority RMB Lenders
” has the meaning set forth in the RMB Loan Agreement.
“ Reallocation Borrowing
” has the meaning set forth in Section 4(d) of the First
Amendment.
“ RMB Advances ”
has the meaning set forth in the RMB Credit Agreement.
“ RMB Borrower ”
has the meaning set forth in the RMB Credit Agreement.
“ RMB Borrower Default
” has the meaning set forth in the RMB Credit
Agreement.
“ RMB Borrower Event of
Default ” has the meaning set forth in the RMB Credit
Agreement.
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“ RMB Collateral ”
has the meaning set forth in the RMB Credit Agreement.
“ RMB Commitment ”
has the meaning set forth in the RMB Credit Agreement.
“ RMB Commitment
Proportion ” has the meaning set forth in the RMB Credit
Agreement.
“ RMB Credit Agreement
” means that certain RMB Revolving Credit Agreement, dated as
of the date hereof, between the RMB Borrower, the RMB Lenders and
the RMB Administrative Agent, which agreement is attached hereto as
Exhibit A , as the same may be modified, amended,
supplemented or replaced from time to time.
“ RMB Event of Default
” has the meaning set forth in the RMB Credit
Agreement.
“ RMB Lenders ”
has the meaning set forth in the RMB Credit Agreement.
“ RMB Letters of Credit
” has the meaning set forth in the RMB Credit
Agreement.
“ RMB Letters of Credit
Usage ” has the meaning set forth in the RMB Credit
Agreement.
“ RMB Loan Documents
” has the meaning set forth in the RMB Credit
Agreement.
(b) Section 1.1 of the Credit Agreement
is hereby amended by deleting the existing definitions and
replacing the same with the following definitions:
“ Credit Party ”
means any of Borrower, a Guarantor or an Alternate Currency
Borrower, and “Credit Parties” shall mean Borrower,
Guarantors and Alternate Currency Borrower, collectively.
“ Default ” means
any Guarantor Default, Borrower Default or any Alternate Currency
Borrower Default.
“ Event of Default
” means any Guarantor Event of Default, Borrower Event of
Default or Alternate Currency Borrower Event of Default.
“ GAAP ” means
generally accepted accounting principles recognized as such in the
opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and the
Financial Accounting Standards Board or in such other statements by
such other entity as may be approved by a
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significant segment of the accounting profession, which are
applicable to the circumstances as of the date of determination,
provided that, with respect to any RMB Borrower, “GAAP”
shall mean the International Financial Reporting Standards issued
by the International Accounting Standards Board.
“
Loan Documents ” means this Agreement, the Notes, the
Guaranty, the Qualified Borrower Joinder Agreement, the
Ratifications, the Letter(s) of Credit, the Letter of Credit
Documents, the Security Documents and the Alternate Currency Loan
Documents.
3.
RMB Credit Facility . As contemplated by Section 9.5(c)
of the Credit Agreement, the Initial RMB Borrower and the RMB
Lenders have entered into the RMB Credit Agreement pursuant to
which the RMB Borrower will have the right, at its option, to make
borrowings (including RMB Letters of Credit), and the RMB Lenders
will fund such borrowings, denominated in Chinese Renminbi in
amounts of up to 500,000,000 Chinese Renminbi, which borrowings
shall be made in accordance with the procedures set forth therein
and the proceeds of which shall be used in accordance with the
terms thereof.
4.
Alternate Currency Borrowings .
(a) Notwithstanding
anything to the contrary contained in the Loan Documents and/or the
Alternate Currency Loan Documents, in no event shall the aggregate
amount of outstanding Loans at any time plus the outstanding
amount of the Letter of Credit Usage plus the Yen equivalent
amount of outstanding Alternate Currency Advances plus the
Yen equivalent of the outstanding amount of the Alternate Currency
Letters of Credit Usage, exceed the Facility Amount, and the Credit
Parties shall not request, and the Banks shall not make, any Loan
(or make any Letters of Credit available) or Alternate Currency
Advance (or make any Alternate Currency Letters of Credit
available) if, after giving effect to the making of such Loan,
Letters of Credit, Alternate Currency Advance or Alternate Currency
Letters of Credit, the aggregate amount of all outstanding Loans
and Letters of Credit Usage and the Yen equivalent amount of all
outstanding Alternate Currency Advances and Alternate Currency
Letters of Credit Usage would exceed the Facility Amount.
(b) Notwithstanding
anything to the contrary contained in the Loan Documents and/or the
Alternate Currency Loan Documents, in no event shall any Alternate
Currency Bank be required to fund any Loans (or participate in any
Letters of Credit) or any Alternate Currency Advances (or
participate in any Alternate Currency Letters of Credit) if, after
giving effect to the same, the Alternate Currency Bank’s
share of outstanding Loans (including its Pro Rata Share of any
Letters of Credit Usage) plus the Alternate Currency
Bank’s share of the Yen equivalent amount of outstanding
Alternate Currency Advances and outstanding Alternate Currency
Letters of Credit Usage exceeds its Commitment.
(c) Notwithstanding
anything to the contrary contained in Article II of the Credit
Agreement, to the extent that, as a result of its outstanding
Alternate Currency
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Advances
or participations in Alternate Currency Letters of Credit, any
Alternate Currency Bank cannot fund its full Pro Rata Share of any
Borrowing (or purchase a participation in any Letter of Credit up
to its full Pro Rate Share), such Alternate Currency Bank shall
fund a share of such Borrowing (or purchase a participation in such
Letter of Credit) up to the amount of its then available
Commitment, if any, and, in such event, each of the remaining Banks
whose Commitments have not yet been reached shall fund the
remaining amount of such Borrowing (or purchase additional
participations in the remaining amount of such Letter of Credit) on
a pro rata basis only among such remaining Banks.
(d) Notwithstanding
anything to the contrary contained in Article II of the Credit
Agreement, to the extent that, as a result of its outstanding
Committed Loans and participations in Letters of Credit, any
Alternate Currency Bank (the “ Participating Banks
”) cannot fund its full Alternate Currency Commitment
Proportion of any Alternate Currency Advance (or purchase a
participation in any Alternate Currency Letter of Credit up to its
full Alternate Currency Commitment Proportion) under the Alternate
Currency Loan Documents, then, at Guarantor’s opti
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