Exhibit 10.1
Execution Version
THIRD AMENDED AND RESTATED GLOBAL SENIOR CREDIT AGREEMENT,
dated as of September 24, 2024
among
DIGITAL REALTY TRUST, L.P.,
as Operating Partnership,
THE OTHER INITIAL BORROWERS NAMED HEREIN AND
THE ADDITIONAL BORROWERS PARTY HERETO,
as Borrowers,
as Parent Guarantor,
THE ADDITIONAL GUARANTORS PARTY HERETO,
as Additional Guarantors,
THE INITIAL LENDERS, ISSUING BANKS AND
SWING LINE BANKS NAMED HEREIN,
as Initial Lenders, Issuing Banks and Swing Line Banks
and
CITIBANK, N.A.,
as Administrative Agent,
with
BOFA SECURITIES, INC. AND
CITIBANK, N.A.,
as Co-Sustainability Structuring Agents,
BANK OF AMERICA, N.A. AND
JPMORGAN CHASE BANK, N.A.,
as Syndication Agents,
and
BOFA SECURITIES, INC.,
CITIBANK, N.A. AND
JPMORGAN CHASE BANK, N.A.,
as Joint Lead Arrangers and Joint Bookrunners
SCHEDULES
Schedule I-Commitments and Applicable Lending Offices
Schedule II-Approved Reallocation Lenders
Schedule III-[Reserved]
Schedule IV-Existing Letters of Credit
Schedule V-Deemed Qualifying Ground Leases
Schedule VI-[Reserved]
Schedule VII-Short Term Leases
Schedule 2.23-Sustainability Adjustments
Schedule 4.01(n)-Surviving Debt
EXHIBITS
Exhibit A-Form of Note
Exhibit B-1-Form of Notice of Borrowing
Exhibit B-2-Form of Notice of Borrowing (KRW-A Revolving Credit Tranche)
Exhibit B-3-Form of Notice of Borrowing (KRW-B Revolving Credit Tranche)
Exhibit C-Form of Guaranty Supplement
Exhibit D-Form of Assignment and Acceptance
Exhibit E-Form of Unencumbered Assets Certificate
Exhibit F-Intentionally Omitted
Exhibit G-Form of Supplemental Addendum
Exhibit H-Form of Borrower Accession Agreement
Exhibit IForm of Pricing Certificate
THIRD AMENDED AND RESTATED GLOBAL SENIOR CREDIT AGREEMENT
THIRD AMENDED AND RESTATED GLOBAL SENIOR CREDIT AGREEMENT dated as of September 24, 2024 (this “Agreement”) among DIGITAL REALTY TRUST, L.P., a Maryland limited partnership (the “Operating Partnership”), DIGITAL US FINCO, LLC, a Delaware limited liability company (“Digital US Finco”), DIGITAL SINGAPORE JURONG EAST PTE. LTD., a Singapore private limited company (the “Initial Singapore Borrower 1”), DIGITAL SINGAPORE 1 PTE. LTD., a Singapore private limited company (the “Initial Singapore Borrower 2”), DIGITAL HK JV HOLDING LIMITED, a British Virgin Islands business company (the “Initial Singapore Borrower 3”), Digital Singapore 2 Pte. Ltd., a Singapore private limited company (the “Initial Singapore Borrower 4”), Digital HK Kin Chuen Limited, a Hong Kong limited company (the “Initial Singapore Borrower 5”), DIGITAL STOUT HOLDING, LLC, a Delaware limited liability company (the “Initial Multicurrency Borrower 1”), DIGITAL JAPAN, LLC, a Delaware limited liability company (the “Initial Multicurrency Borrower 2”), DIGITAL EURO FINCO, L.P., a Scottish limited partnership (the “Initial Multicurrency Borrower 3”), MOOSE VENTURES LP, a Delaware limited partnership (the “Initial Multicurrency Borrower 4”), DIGITAL DUTCH FINCO B.V., a Dutch private limited liability company, with corporate seat in Amsterdam, the Netherlands, registered with the Dutch Trade Register under number 76488535 (the “Initial Multicurrency Borrower 5”), 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 Realty Korea Ltd., a Korean limited liability company (the “Initial Korea Borrower 1”), DIGITAL SEOUL 2 LTD., a Korean limited liability company (the “Initial Korea Borrower 2”) and PT Digital Jakarta One, an Indonesian limited liability company (the “Initial Indonesia Borrower”; and collectively with the Operating Partnership, the Initial Singapore Borrower 1, the Initial Singapore Borrower 2, the Initial Singapore Borrower 3, the Initial Singapore Borrower 4, the Initial Singapore Borrower 5, the Initial Multicurrency Borrower 1, the Initial Multicurrency Borrower 2, the Initial Multicurrency Borrower 3, the Initial Multicurrency Borrower 4, the Initial Multicurrency Borrower 5, the Initial Australia Borrower 1, the Initial Australia Borrower 2, the Initial Korea Borrower 1, the Initial Korea Borrower 2 and any Additional Borrowers (as defined below), the “Borrowers” and each individually a “Borrower”), DIGITAL REALTY TRUST, INC., a Maryland corporation (the “Parent Guarantor”), DIGITAL EURO FINCO, LLC, a Delaware limited liability company (“Digital Euro”), any Additional Guarantors (as hereinafter defined) acceding hereto pursuant to Section 5.01(j) (the Additional Guarantors, together with the Operating Partnership, the Parent Guarantor and Digital Euro, the “Guarantors”), the banks, financial institutions and other institutional lenders listed on the signature pages hereof as the initial lenders (the “Initial Lenders”), each Issuing Bank and Swing Line Bank (as such capitalized terms are hereinafter defined) and CITIBANK, N.A. (“Citibank”), as administrative agent (together with any successor administrative agent appointed pursuant to Article VIII, the “Administrative Agent”) for the Lender Parties (as hereinafter defined), with BOFA SECURITIES, INC. (“BofA Securities”) and Citibank, as co-sustainability structuring agents (the “Co-Sustainability Structuring Agents”), BANK OF AMERICA, N.A. and JPMORGAN CHASE BANK, N.A. (“JPMCB”), as syndication agents, and BofA Securities, Citibank and JPMCB, as joint lead arrangers and joint bookrunners (the “Arrangers”).
W I T N E S S E T H:
WHEREAS, pursuant to that certain Second Amended and Restated Global Senior Credit Agreement dated as of November 18, 2021, as amended through the Closing Date (as defined below), among the Operating Partnership, the Parent Guarantor, the other borrowers and guarantors party thereto, Citibank, N.A., as administrative agent and the other financial institutions party thereto, with Bank of America, N.A. and JPMCB, as the syndication agents, and BofA Securities (as successor in interest to Merrill Lynch, Pierce, Fenner & Smith Incorporated), Citigroup Global Markets Inc. and J.P. Morgan Securities LLC, as the arrangers (the “Existing Revolving Credit Agreement”), the lenders party thereto agreed to extend certain commitments to make certain extensions of credit available to the Borrowers; and
WHEREAS, the Borrowers, the Guarantors, the Administrative Agent and the lenders party to the Existing Revolving Credit Agreement desire to amend and restate the Existing Revolving Credit Agreement to make certain amendments thereto;
NOW, THEREFORE, in consideration of the recitals set forth above, which by this reference are incorporated into the operative provisions of this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and subject to the terms and conditions hereof and on the basis of the representations and warranties herein set forth, the parties hereby agree to amend and restate the Existing Revolving Credit Agreement to read in its entirety as herein set forth.
“Acceding Lender” has the meaning specified in Section 2.18(d).
“Accepting Lenders” has the meaning specified in Section 9.01(c).
“Accrued Amounts” has the meaning specified in Section 2.11(a).
“Additional Borrower” means any Person that becomes a Borrower pursuant to Section 5.01(p).
“Additional Guarantor” has the meaning specified in Section 5.01(j).
“Adjusted Daily CORRA” means with respect to any Daily RFR Business Day and a Daily RFR Advance denominated in Canadian Dollars a rate per annum equal to the sum of (a) Daily Compounded CORRA for such Daily RFR Business Day plus (b) 0.29547% (29.547 basis points); provided, however, that in no event shall Adjusted Daily CORRA be less than the Floor for any Advance that has not been identified by the Borrowers to the Administrative Agent as being subject to a Hedge Agreement.
“Adjusted Daily SOFR” means with respect to any Daily RFR Business Day and a Daily RFR Advance denominated in Dollars a rate per annum equal to (a) Daily Simple SOFR for such Daily RFR Business Day plus (b) 0.10% (10 basis points); provided, however, that in no event shall Adjusted Daily SOFR be less than the Floor for any Advance that has not been identified by the Borrowers to the Administrative Agent as being subject to a Hedge Agreement.
“Adjusted EBITDA” means an amount equal to the EBITDA for the four-fiscal quarter period of the Parent Guarantor most recently ended for which financial statements are required to be delivered to the Administrative Agent pursuant to Section 5.03(b) or (d), as the case may be; provided, however, that for purposes of this definition, in the case of any acquisition or disposition of any direct or indirect interest in any Asset (including through the acquisition of Equity Interests) by the Parent Guarantor or any of its Subsidiaries during such four-fiscal quarter period, Adjusted EBITDA will be adjusted (a) in the case of an acquisition, by adding thereto an amount equal to the acquired Asset’s actual EBITDA (computed as if such Asset was owned or leased by the Parent Guarantor or one of its Subsidiaries for the entire four-fiscal quarter period) generated during the portion of such four-fiscal quarter period that such Asset was not owned or leased by the Parent Guarantor or such Subsidiary and (b) in the case of a disposition, by subtracting therefrom an amount equal to the actual EBITDA generated by the Asset so disposed of during such four-fiscal quarter period.
“Adjusted Net Operating Income” means, with respect to any Asset, the product of (a) four (4) times (b) (i) Net Operating Income attributable to such Asset less (ii) the amount, if any, by which (A) 2% of all rental income (other than tenant reimbursements) from the operation of such Asset for the fiscal quarter of the Parent Guarantor most recently ended for which financial statements are required to
be delivered to the Administrative Agent pursuant to Section 5.03(b) or (d), as the case may be, exceeds (B) all management fees payable in respect of such Asset for such fiscal period; provided, however, that for purposes of this definition, in the case of any acquisition or disposition of any direct or indirect interest in any Asset (including through the acquisition of Equity Interests) by the Parent Guarantor or any of its Subsidiaries during any fiscal quarter, Adjusted Net Operating Income will be adjusted (1) in the case of an acquisition, by adding thereto an amount equal to (x) four (4) times (y) the acquired Asset’s actual Net Operating Income (computed as if such Asset was owned or leased by the Parent Guarantor or one of its Subsidiaries for the entire fiscal quarter) generated during the portion of such fiscal quarter that such Asset was not owned or leased by the Parent Guarantor or such Subsidiary and (2) in the case of a disposition, by subtracting therefrom an amount equal to (x) four (4) times (y) the actual Net Operating Income generated by the Asset so disposed of during such fiscal quarter.
“Adjusted SARON” means with respect to any Daily RFR Business Day and an Advance denominated in CHF (a) having a tenor of one month, a rate per annum equal to (i) SARON for such Daily RFR Business Day minus (ii) 0.0571% (5.71 basis points), (b) having a tenor of three months, a rate per annum equal to the sum of (i) SARON for such Daily RFR Business Day plus (ii) 0.0031% (0.31 basis points) and (c) having a tenor of six months, the sum of (i) SARON for such Daily RFR Business Day plus (ii) 0.0741% (7.41 basis points); provided, however, that in no event shall Adjusted SARON be less than the Floor for any Advance that has not been identified by the Borrowers to the Administrative Agent as being subject to a Hedge Agreement.
“Adjusted SONIA” means with respect to any Daily RFR Business Day and an Advance denominated in Sterling (a) having a tenor of one month, a rate per annum equal to the sum of (i) SONIA for such Daily RFR Business Day plus (ii) 0.0326% (3.26 basis points), (b) having a tenor of three months, a rate per annum equal to the sum of (i) SONIA for such Daily RFR Business Day plus (ii) 0.1193% (11.93 basis points) and (c) having a tenor of six months, a rate per annum equal to the sum of (i) SONIA for such Daily RFR Business Day plus (ii) 0.2766% (27.66 basis points); provided, however, that in no event shall Adjusted SONIA be less than the Floor for any Advance that has not been identified by the Borrowers to the Administrative Agent as being subject to a Hedge Agreement.
“Adjusted Term CORRA” means, for any Interest Period, an interest rate per annum equal to (a) Term CORRA for such Interest Period, plus (b)(i) if the Interest Period is one month, 0.29547% (29.547 basis points), and (ii) if the Interest Period is three months, 0.32138% (32.138 basis points), provided, however, that in no event shall Adjusted Term CORRA be less than the Floor for any Advance that has not been identified by the Borrowers to the Administrative Agent as being subject to a Hedge Agreement.
“Adjusted Term SOFR” means, for any Interest Period, an interest rate per annum equal to (a) Term SOFR for such Interest Period, plus (b) 0.10% (10 basis points); provided, however, that in no event shall Adjusted Term SOFR be less than the Floor for any Advance that has not been identified by the Borrowers to the Administrative Agent as being subject to a Hedge Agreement.
“Administrative Agent” has the meaning specified in the recital of parties to this Agreement.
“Administrative Agent’s Account” means (a) in the case of Advances under the U.S. Dollar Revolving Credit Tranche, the account of the Administrative Agent maintained by the Administrative Agent with Citibank, N.A., at its office at 1615 Brett Road, Ops III, New Castle, Delaware 19720, ABA No. 021000089, Account No. 31311565, Account Name: CBNA Global Loans Agency USD, Reference: Digital Realty, Attention: CBNA Lending Agency or such other account as the Administrative Agent shall specify in writing to the Lender Parties, and (b) in the case of Advances under the Australian Dollar Revolving Credit Tranche, the Singapore Dollar Revolving Credit Tranche, the Multicurrency Revolving Credit Tranche, the KRW-A Revolving Credit Tranche, the KRW-B Revolving Credit Tranche, the IDR Revolving Credit Tranche or any Supplemental Tranche, the account of the Administrative Agent designated in writing from time to time by the Administrative Agent to the Borrowers and the Lender
Parties for such purpose or such other account as the Administrative Agent shall specify in writing to the Lender Parties.
“Advance” means a Revolving Credit Advance, a Swing Line Advance or a Letter of Credit Advance.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affected Lender” has the meaning specified in Section 2.10(g).
“Affected Reallocation Lender Parties” has the meaning specified in Section 2.19(b).
“Affiliate” means, as to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person or is a director or officer of such Person. For purposes of this definition, the term “control” (including the terms “controlling”, “controlled by” and “under common control with”) of a Person means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of Voting Interests, by contract or otherwise. In no event shall the Administrative Agent or any Lender Party be deemed to be an Affiliate of the Borrower.
“Agent’s Spot Rate of Exchange” means, in relation to any amount denominated in any currency, and unless expressly provided otherwise, (a) the rate as determined by OANDA Corporation and made available on its website at www.oanda.com/currency/converter/ or (b) if customary in the relevant interbank market, the bid rate that appears on the Reuters (Page AFX= or Screen ECB37, as applicable) screen page for cross currency rates, in each case with respect to such currency on the date specified below in the definition of Equivalent, provided that if such service or screen page ceases to be available, the Administrative Agent shall use such other service or page quoting cross currency rates as the Administrative Agent determines in its reasonable discretion, provided further that clause (b) shall not apply to any currency of any Advances under the Multicurrency Revolving Credit Tranche.
“Agreement” has the meaning specified in the recital of parties to this Agreement.
“Allowed Unconsolidated Affiliate Earnings” means distributions (excluding extraordinary or non-recurring distributions) received in cash from Unconsolidated Affiliates.
“Alternative CD Yield Rate” has the meaning specified in Section 2.07(d)(v).
“Annual Period” means each period beginning on January 1st and ending on December 31st (inclusive) during the term of the Facility.
“Anti-Corruption Laws” shall mean all laws, rules, and regulations of any jurisdiction applicable to the Loan Parties or their Subsidiaries from time to time concerning or relating to bribery, corruption or money laundering including, without limitation, the United Kingdom Bribery Act of 2010 and the United States Foreign Corrupt Practices Act of 1977, as amended.
“Anti-Social Forces” has the meaning specified in Section 4.01(v).
“Applicable Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
“Applicable Lender” has the meaning specified in Section 2.03(c).
“Applicable Lender Party” means, with respect to (a) the U.S. Dollar Revolving Credit Tranche, a U.S. Dollar Lender Party, (b) the Multicurrency Revolving Credit Tranche, a Multicurrency Lender Party, (c) the Australian Dollar Revolving Credit Tranche, an Australian Lender Party, (d) the Singapore
Dollar Revolving Credit Tranche, a Singapore Lender Party, (e) the KRW-A Revolving Credit Tranche, a KRW-A Lender Party, (f) the KRW-B Revolving Credit Tranche, a KRW-B Lender Party, (g) the IDR Revolving Credit Tranche, an IDR Lender Party and (h) any Supplemental Tranche, the Lenders that hold a Supplemental Tranche Commitment with respect to such Supplemental Tranche.
“Applicable Lending Office” means, with respect to each Lender Party, such Lender Party’s (a) Australian Dollar Tranche Lending Office in the case of an Advance under the Australian Dollar Revolving Credit Tranche, (b) U.S. Dollar Tranche Lending Office in the case of an Advance under the U.S. Dollar Revolving Credit Tranche, (c) Multicurrency Tranche Lending Office in the case of an Advance under the Multicurrency Revolving Credit Tranche, (d) IDR Tranche Lending Office in the case of an Advance under the IDR Revolving Credit Tranche, (e) KRW Lending Office in the case of an Advance under the KRW-A Revolving Credit Tranche or the KRW-B Revolving Credit Tranche, (f) Singapore Tranche Lending Office in the case of an Advance under the Singapore Dollar Revolving Credit Tranche, and (g) lending office set forth in the applicable Supplemental Addendum with respect to any Supplemental Tranche Advance.
“Applicable Margin” means, subject to the Sustainability Margin Adjustment and the Sustainability Facility Fee Adjustment in accordance with the last paragraph of this definition, at any date of determination, a percentage per annum determined by reference to the Debt Rating as set forth below:
Pricing Level | Debt Rating | Applicable Margin for Base Rate Advances and CPR Advances | Applicable Margin for Floating Rate Advances and Daily RFR Advances | Facility Fee |
|---|---|---|---|---|
I | A/A2 or better | 0.00% | 0.700% | 0.100% |
II | A-/A3 | 0.00% | 0.725% | 0.125% |
III | BBB+/Baa1 | 0.00% | 0.775% | 0.150% |
IV | BBB/Baa2 | 0.00% | 0.850% | 0.200% |
V | BBB-/Baa3 | 0.05% | 1.050% | 0.250% |
VI | Lower than BBB-/Baa3 (or unrated) | 0.40% | 1.400% | 0.300% |
The Applicable Margin for any Interest Period for all Advances comprising part of the same Borrowing shall be determined by reference to the Debt Rating in effect on the first day of such Interest Period; provided, however, that (a) the Applicable Margin shall initially be at Pricing Level IV on the Closing Date, (b) no change in the Applicable Margin resulting from the Debt Rating shall be effective until three Business Days after the earlier to occur of (i) the date on which the Administrative Agent receives the certificate described in Section 5.03(k) and (ii) the Administrative Agent’s actual knowledge of an applicable change in the Debt Rating.
It is understood and agreed that the Applicable Margin with respect to Base Rate Advances, CPR Advances, Floating Rate Advances and Daily RFR Advances and the Facility Fee shall be adjusted from time to time based upon the Sustainability Margin Adjustment and the Sustainability Facility Fee Adjustment, as applicable (in each case, to be calculated and applied as set forth in Section 2.23);
provided, however, that in no event shall the Applicable Margin with respect to any Advances be less than zero percent per annum (0.00%).
“Applicable Pro Rata Share” means, (a) in the case of a U.S. Dollar Revolving Lender, such Lender’s U.S. Dollar Revolving Credit Pro Rata Share, (b) in the case of a Multicurrency Revolving Lender, such Lenders’ Multicurrency Revolving Credit Pro Rata Share, (c) in the case of a Singapore Dollar Revolving Lender, such Lender’s Singapore Dollar Revolving Credit Pro Rata Share, (d) in the case of an Australian Dollar Revolving Lender, such Lenders’ Australian Dollar Revolving Credit Pro Rata Share, (e) in the case of a KRW-A Revolving Lender, such Lender’s KRW-A Revolving Credit Pro Rata Share, (f) in the case of a KRW-B Revolving Lender, such Lender’s KRW-B Revolving Credit Pro Rata Share, (g) in the case of an IDR Revolving Lender, such Lender’s IDR Revolving Credit Pro Rata Share, and (h) in the case of a Lender under the Supplemental Tranche, such Lender’s Supplemental Tranche Pro Rata Share.
“Applicable Screen Rate” means with respect to (a) intentionally omitted, (b) Advances in Australian Dollars, BBR, (c) Advances in Hong Kong Dollars, the Hong Kong Screen Rate, (d) Advances in Euro, the EURIBO Rate, (e) Advances in Indonesian Rupiah, the Jakarta Screen Rate, (f) Advances in Yen, TIBOR, or (g) Advances in any Supplemental Currency, if applicable, the Supplemental Currency Screen Rate, as the context may require.
“Apportioned Commitment Increase” has the meaning specified in Section 2.18(a).
“Approved Reallocation Lender” means each Lender set forth on Schedule II hereto that, subject to any requirements specified in Schedule II, has agreed in writing in its sole discretion to participate in Reallocations of its Unused Revolving Credit Commitments in accordance with Section 2.19 without the requirement of providing a separate approval for each Reallocation. The Administrative Agent may update Schedule II from time to time upon the addition of any Approved Reallocation Lender and the Administrative Agent shall provide the updated Schedule II to the Borrowers and the Lenders.
“Arrangers” has the meaning specified in the recital of parties to this Agreement.
“Asset Value” means, at any date of determination, (a) in the case of (i) any Technology Asset that is not a Short-Term Leased Asset, the Capitalized Value of such Asset or (ii) any Technology Asset that is a Short-Term Leased Asset, the Short-Term Leased Asset Book Value thereof; provided, however, that the Asset Value of each Technology Asset (other than an asset that is leased by the Operating Partnership or a Subsidiary thereof pursuant to a lease (other than a ground lease), a former Development Asset or a former Redevelopment Asset) shall be limited, during the first 12 months following the date of acquisition thereof, to the greater of (x) the acquisition price thereof or (y)(I) in the case of any Technology Asset that is not a Short-Term Leased Asset, the Capitalized Value thereof or (II) in the case of any Technology Asset that is a Short-Term Leased Asset, the Short-Term Leased Asset Book Value thereof; provided further that an upward adjustment shall be made to the Asset Value of any Technology Asset (in the reasonable discretion of the Administrative Agent) as new Tenancy Leases are entered into in respect of such Asset in the ordinary course of business, (b)(i)(x) in the case of any Development Asset that is a Leased Asset other than a Short-Term Leased Asset or any Redevelopment Asset that is a Leased Asset other than a Short-Term Leased Asset, the Capitalized Value thereof or (y) in the case of any Development Asset that is a Short-Term Leased Asset or any Redevelopment Asset that is a Short-Term Leased Asset, the Short-Term Leased Asset Book Value thereof and (ii) in the case of any other Development Asset or Redevelopment Asset, the book value of such Asset determined in accordance with GAAP (but determined without giving effect to any depreciation), (c) in the case of any Unconsolidated Affiliate Asset that, but for such Asset being owned or leased by an Unconsolidated Affiliate (other than an asset that is leased by the Operating Partnership or a Subsidiary thereof pursuant to a lease (other than a ground lease), a former Development Asset or a former Redevelopment Asset), would qualify as a Technology Asset under the definition thereof, (x) in the case of such an Unconsolidated Affiliate Asset other than a Short-Term Leased Asset, the JV Pro Rata Share of the
Capitalized Value thereof or (y) in the case of such an Unconsolidated Affiliate Asset that is a Short-Term Leased Asset, the JV Pro Rata Share of the Short-Term Leased Asset Book Value thereof; provided, however, that the Asset Value of such Unconsolidated Affiliate Asset shall be limited, during the first 12 months following the date of acquisition thereof, to the JV Pro Rata Share of the greater of (i) the acquisition price thereof or (ii)(x) in the case of such an Unconsolidated Affiliate Asset other than a Short-Term Leased Asset, the Capitalized Value thereof or (y) in the case of such an Unconsolidated Affiliate Asset that is a Short-Term Leased Asset, the Short-Term Leased Asset Book Value thereof; provided further that an upward adjustment shall be made to Asset Value of any Unconsolidated Affiliate Asset described in this clause (c) (in the reasonable discretion of the Administrative Agent) as new leases, subleases, real estate licenses, occupancy agreements and rights of use are entered into in respect of such Asset in the ordinary course of business and (d) in the case of any Unconsolidated Affiliate Asset not described in clause (c) above, the JV Pro Rata Share of the book value of such Unconsolidated Affiliate Asset determined in accordance with GAAP (but determined without giving effect to any depreciation) of such Unconsolidated Affiliate Asset.
“Assets” means Technology Assets (including Leased Assets), Unconsolidated Affiliate Assets (including Leased Assets), Redevelopment Assets (including Leased Assets) and Development Assets (including Leased Assets).
“Assignment and Acceptance” means an assignment and acceptance entered into by a Lender Party and an Eligible Assignee, and accepted by the Administrative Agent, in accordance with Section 9.07 and in substantially the form of Exhibit D hereto.
“Auditor’s Determination” has the meaning specified in Section 7.09(g).
“Australia Borrowers” means the Operating Partnership, the Initial Australia Borrower 1, the Initial Australia Borrower 2, the Initial Multicurrency Borrower 1, the Initial Multicurrency Borrower 3, the Initial Multicurrency Borrower 5 and each Additional Borrower that is designated as a Borrower with respect to the Australian Dollar Revolving Credit Tranche, the Australian Swing Line Facility or the Australian Letter of Credit Facility.
“Australian Committed Currencies” means Australian Dollars, Dollars, Sterling and Euros.
“Australian Dollar Revolving Credit Advance” has the meaning specified in Section 2.01(a)(iii).
“Australian Dollar Revolving Credit Commitment” means, (a) with respect to any Lender at any time, the amount set forth opposite such Lender’s name on Schedule I hereto under the caption “Australian Dollar Revolving Credit Commitment” or (b) if such Lender has entered into one or more Assignment and Acceptances or Lender Accession Agreements, set forth for such Lender in the Register maintained by the Administrative Agent pursuant to Section 9.07(d) as such Lender’s “Australian Dollar Revolving Credit Commitment”, as such amount may be reduced at or prior to such time pursuant to Section 2.05 or 2.19 or increased pursuant to Section 2.18 or 2.19.
“Australian Dollar Revolving Credit Pro Rata Share” of any amount means, with respect to any Lender at any time, the product of such amount times a fraction the numerator of which is the amount of such Lender’s Australian Dollar Revolving Credit Commitment at such time (or, if the Commitments shall have been terminated pursuant to Section 2.05 or 6.01, such Lender’s Facility Exposure with respect to the Australian Dollar Revolving Credit Tranche at such time) and the denominator of which is the Australian Dollar Revolving Credit Tranche at such time (or, if the Commitments shall have been terminated pursuant to Section 2.05 or 6.01, the total Facility Exposure with respect to the Australian Dollar Revolving Credit Tranche at such time).
“Australian Dollar Revolving Credit Tranche” means, at any time, the aggregate amount of the Lenders’ Australian Dollar Revolving Credit Commitments at such time.
“Australian Dollar Revolving Lender” means any Person that is a Lender hereunder in respect of the Australian Dollar Revolving Credit Tranche in its capacity as a Lender in respect of such Tranche.
“Australian Dollars” and the “A$” sign each means lawful currency of Australia.
“Australian Dollar Tranche Lending Office” means, with respect to any Lender Party, the office of such Lender Party specified as its “Australian Dollar Tranche Lending Office” opposite its name on Schedule I hereto or in the Assignment and Acceptance or Lender Accession Agreement pursuant to which it became a Lender Party, or such other office of such Lender Party as such Lender Party may from time to time specify to the Borrowers and the Administrative Agent.
“Australian Issuing Bank” means JPMorgan Chase Bank, N.A. (or any Affiliate thereof) and any other Lender approved as an Australian Issuing Bank by the Administrative Agent and the Operating Partnership and any Eligible Assignee to which an Australian Letter of Credit Commitment hereunder has been assigned pursuant to Section 9.07 so long as each such Lender or each such Eligible Assignee expressly agrees to perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as an Australian Issuing Bank and notifies the Administrative Agent of its Applicable Lending Office and the amount of its Australian Letter of Credit Commitment (which information shall be recorded by the Administrative Agent in the Register) for so long as such initial Australian Issuing Bank, Lender or Eligible Assignee, as the case may be, shall have an Australian Letter of Credit Commitment.
“Australian Lender Party” means any Australian Dollar Revolving Lender, the Swing Line Bank under the Australian Swing Line Facility or an Australian Issuing Bank.
“Australian Letter of Credit Commitment” means, with respect to any Australian Issuing Bank at any time, the amount set forth opposite such Australian Issuing Bank’s name on Schedule I hereto under the caption “Australian Letter of Credit Commitment” or, if such Australian Issuing Bank has entered into one or more Assignment and Acceptances, set forth for such Australian Issuing Bank in the Register maintained by the Administrative Agent pursuant to Section 9.07(d) as such Australian Issuing Bank’s “Australian Letter of Credit Commitment”, as such amount may be reduced at or prior to such time pursuant to Section 2.05 or 2.19 or increased pursuant to Section 2.19.
“Australian Letter of Credit Facility” means, at any time, an amount equal to the lesser of (a) the aggregate amount of the Australian Issuing Banks’ Australian Letter of Credit Commitments at such time, and (b) A$30,000,000 (or the Equivalent thereof in any other Australian Committed Currency), as such amount may be reduced at or prior to such time pursuant to Section 2.05. The Australian Letter of Credit Facility shall be a Subfacility of the Australian Dollar Revolving Credit Tranche.
“Australian Letters of Credit” has the meaning specified in Section 2.01(b)(v).
“Australian PPS Act” means the Personal Property Securities Act 2009 (Cth) (Australia).
“Australian Swing Line Facility” means, at any time, an amount equal to the lesser of (a) the aggregate amount of the Swing Line Commitments relating to the Australian Dollar denominated Swing Line Facility at such time, and (b) A$40,000,000, as such amount may be reduced at or prior to such time pursuant to Section 2.05. The Australian Swing Line Facility shall be a Subfacility of the Australian Dollar Revolving Credit Tranche.
“Australian Tax Act” means the Income Tax Assessment Act 1936 (Cth), the Income Tax Assessment Act 1997 (Cth) or the Taxation Administration Act 1953 (Cth).
“Available Amount” of any Letter of Credit means, at any time, the maximum amount available to be drawn under such Letter of Credit at such time (assuming compliance at such time with all conditions to drawing), and shall be deemed where applicable hereunder to include the Equivalent in the Primary Currency relating to the applicable Tranche of any such amount denominated in a Committed Foreign Currency. If on any date of determination a standby Letter of Credit has expired by its terms but
any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, the Available Amount of such standby Letter of Credit shall be deemed to be the amount so remaining available to be drawn.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, the UK Bail-In Legislation.
“Bank Guarantees” means bank guarantees, bank bonds or comparable instruments issued or to be issued pursuant to any Letter of Credit Facility (other than the U.S. Dollar Letter of Credit Facility) by an Issuing Bank or Affiliate thereof in form and substance satisfactory to the issuer thereof.
“Bank Levy” means any amount payable by any Secured Party or any of its Affiliates on the basis of, or in relation to, its balance sheet or capital base or any part of that person or its liabilities or minimum regulatory capital or any combination thereof, including the United Kingdom bank levy as set out in the Finance Act of 2011 (as amended), the French taxe pour le financement du fonds de soutien aux collectivités territoriales as set out in Article 235 ter ZE bis of the French Tax Code, the bank levy payable pursuant to the Dutch Act on bank levy (Wet bankenbelasting) or any other implementing rules connected therewith and any tax in any other jurisdiction levied on a similar basis or for a similar purpose or any financial activities taxes (or other taxes) of a kind contemplated in the European Commission consultation paper on financial sector taxation dated February 22, 2022 which has been enacted or which has been formally announced as proposed as at the date of this Agreement.
“Bankruptcy Law” means any applicable law governing a proceeding of the type referred to in Section 6.01(f) or Title 11, U.S. Code, or any similar foreign, federal or state law for the relief of debtors.
“Base CD Rate” means, in relation to an Interest Period for KRW-A Revolving Credit Advances or KRW-B Revolving Credit Advances, (i) prior to the first day of the first Interest Period for each such KRW-A Revolving Credit Advance or KRW-B Revolving Credit Advance commencing on or after October 2, 2023, the average (rounded off to two (2) decimal places) of the final quotation yield rate for ninety-one (91) day KRW denominated bank certificates of deposit as published by the Korea Financial Investment Association or comparable substitute publishing medium at 4:00 P.M. (Seoul time) on the applicable Quotation Day and the immediately preceding two (2) consecutive Business Days, and (ii) on or after the first day of the first Interest Period for each such KRW-A Revolving Credit Advance or KRW-B Revolving Credit Advance commencing on or after October 2, 2023, the average (rounded off to two (2) decimal places) of the CD Yield Rate (CD수익률 in Korean) as defined in Article 2, Paragraph 1, Subparagraph 1 of the Regulation on Calculation of CD Yield Rate (CD 수익률 산출업무규정 in Korean) as published by the Korea Financial Investment Association (or any successor of such association) on its website (http://www.kofiabond.or.kr) on the applicable Quotation Day and the immediately preceding two (2) consecutive Business Days. For the avoidance of doubt, in the event that the applicable Quotation Day falls on a date prior to October 2, 2023, the Base CD Rate described in clause (i) above shall apply. Notwithstanding anything to the contrary in this Agreement, in no event shall the Base CD Rate be less than the Floor for any Advance that has not been identified by the Borrowers to the Administrative Agent as being subject to a Hedge Agreement.
“Base Rate” means a fluctuating interest rate per annum in effect from time to time, which rate per annum shall at all times be equal to the highest of (a) the rate of interest announced publicly by Citibank in New York, New York, from time to time, as Citibank’s base rate, (b) ½ of 1% per annum above the Federal Funds Rate, (c) Adjusted Term SOFR for a one-month Interest Period in effect on such
day plus 1% per annum (taking into account any floor set forth in the definition of Adjusted Term SOFR) and (d) 1% per annum. Citibank’s base rate is a rate set by Citibank based upon various factors, including Citibank’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such base rate announced by Citibank shall take effect at the opening of business on the day specified in the public announcement of such change. If the Base Rate is being used as an alternate rate of interest pursuant to Section 2.07(d) or 2.07(f), then the Base Rate shall be equal to the higher of clauses (a), (b) and (d) above and shall be determined without reference to clause (c) above. Notwithstanding anything to the contrary in this Agreement, in no event shall the Base Rate be less than the Floor for any Advance that has not been identified by the Borrowers to the Administrative Agent as being subject to a Hedge Agreement.
“Base Rate Advance” means (a) an Advance under the U.S. Dollar Revolving Credit Tranche advanced as a Base Rate Advance hereunder or Converted into a Base Rate Advance hereunder, (b) an Advance under the U.S. Dollar Swing Line Facility, (c) an Advance that is Converted into a Base Rate Advance pursuant to Section 2.07, or (d) a Letter of Credit Advance under the U.S. Dollar Letter of Credit Facility that, in each case, bears interest as provided in Section 2.07(a)(i).
“BBR” means (a) for a period relating to an Australian Dollar Revolving Credit Advance, (i) the average mid rate displayed at or about 10:15 A.M. (Sydney time) on the Quotation Day on the Reuters screen BBSW page for a term equivalent to the period or (ii) if (A) for any reason BBR is not available for the applicable Interest Period but is available for other Interest Periods with respect to any such Australian Dollar Revolving Credit Advance, then the rate shall be the Interpolated Screen Rate or (B) the basis on which that rate is displayed is changed and in the opinion of the Administrative Agent it ceases to reflect the Lenders’ cost of funding to the same extent as at the date of this Agreement, then BBR will be the rate reasonably determined by the Administrative Agent to be the arithmetic mean of the bid and ask rates for bills of exchange accepted by leading Australian banks in the Relevant Interbank Market at or about 10:15 A.M. (Sydney time) on the Quotation Day and which has a term equivalent to such period, and (b) for any Swing Line Advance in Australian Dollars, (i) the average mid rate displayed at or about 10:15 A.M. (Sydney time) on the Reuters screen BBSW page on the day of such Swing Line Advance or (ii) if no such rate is available, the rate reasonably determined by the Administrative Agent to be the arithmetic mean of the rate quoted by leading banks in the Relevant Interbank Market as of 12:00 P.M. (Sydney time) on the day of such Swing Line Advance. Rates under clauses (a) and (b) above will be expressed as a yield percent per annum to maturity and, if necessary, will be rounded up to the nearest fourth decimal place. Notwithstanding anything to the contrary in this Agreement, in no event shall BBR be less than the Floor for any Advance that has not been identified by the Borrowers to the Administrative Agent as being subject to a Hedge Agreement.
“Benchmark” means, initially, (a) with respect to amounts denominated in Dollars, the Term SOFR Reference Rate or Daily Simple SOFR, as applicable, (b) with respect to amounts denominated in Sterling, SONIA, (c) with respect to amounts denominated in Swiss Francs, SARON, (d) with respect to amounts denominated in Yen, TIBOR, (e) with respect to amounts denominated in EURO, the EURIBO Rate (f) with respect to amounts denominated in Canadian Dollars, Adjusted Term CORRA or Adjusted Daily CORRA, as applicable, (g) with respect to amounts denominated in Australian Dollars, BBR, (h) with respect to amounts denominated in Singapore Dollars, SORA, (i) with respect to any amounts denominated in Hong Kong Dollars, HIBOR, (j) with respect to amounts denominated in Indonesian Rupiah, JIBOR, (k) with respect to amounts denominated in Korean Won, the Base CD Rate and (l) with respect to amounts denominated in any other Committed Foreign Currency, the rate therefor set forth in the applicable Supplemental Addendum; provided, however, that if a replacement of an initial or subsequent Benchmark has occurred pursuant to this Section titled “Benchmark Replacement Setting”, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark
Replacement has replaced such prior benchmark rate. Any reference to “Benchmark” shall include, as applicable, the published component used in the calculation thereof.
“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark for any currency:
(a)in the case of clause (a) of the definition of “Benchmark Transition Event”, the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
(b)in the case of clause (b) of the definition of “Benchmark Transition Event”, the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be no longer representative; provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (b) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
For the avoidance of doubt, (A) if the event giving rise to the Benchmark Replacement Date for any Benchmark occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such Benchmark and for such determination and (B) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Beneficial Ownership Certification” means, if any Borrower qualifies as a “legal entity customer” within the meaning of the Beneficial Ownership Regulation, a certification of beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Internal Revenue Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Internal Revenue Code) the assets of any such “employee benefit plan” or “plan”.
“BHC Act Affiliate” has the meaning specified in Section 9.21(b).
“Board of Directors” or a “director”, in relation to a Dutch entity, means its managing board (bestuur) or a managing director (bestuurder).
“BofA Securities” has the meaning specified in the recital of parties to this Agreement.
“Bond Debt” has the meaning specified in Section 5.01(j).
“Bond Issuance” means any offering or issuance of any Bonds or the acquisition of any Subsidiary that has Bonds outstanding.
“Bond Pricing Agencies” means NICE P&I Inc., Korea Asset Pricing Corporation, KIS Pricing Inc., FnPricing Inc and EG Asset Pricing & Data Platform.
“Bonds” means bonds, notes, loan stock, debentures and comparable debt instruments that evidence debt obligations of a Person.
“Borrower” has the meaning specified in the recital of parties to this Agreement.
“Borrower Accession Agreement” means the Borrower Accession Agreement, between the Administrative Agent and an Additional Borrower relating to such Additional Borrower which is to become a Borrower hereunder at any time on or after the Effective Date, the form of which is attached hereto as Exhibit H.
“Borrower’s Account” means such account as any Borrower shall specify in writing to the Administrative Agent. Notwithstanding the foregoing, each Borrower Account relating to Swing Line Advances in (A) Singapore Dollars shall be maintained at Citibank N.A., Singapore Branch, or another financial institution in Singapore and (B) Australian Dollars shall be maintained at Citibank N.A., Sydney Branch, or another financial institution in Australia.
“Borrowing” means a borrowing consisting of simultaneous Revolving Credit Advances of the same Type made by the Lenders or a Swing Line Borrowing.
“Business Day” means a day of the year on which banks are not required or authorized by law to close in New York City and, if the applicable Business Day relates to (a) any Eurocurrency Rate Advances or Advances under the Multicurrency Revolving Credit Tranche, on which dealings are carried on in the London interbank market and banks are open for business in London and in the country of issue of the currency of such Advance (or, in the case of an Advance denominated in Euro, on which the Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET) System is open), (b) any Australian Dollar Revolving Credit Advances, on which dealings are carried on in the Australian interbank market and banks are open for business in Sydney, Melbourne, Hong Kong and in the country of issue of the currency of such Australian Dollar Revolving Credit Advance, (c) any Singapore Dollar Revolving Credit Advances, on which dealings are carried on in the Singapore interbank market and banks are open for business in Singapore, London, Hong Kong and in the country of issue of the currency of such Singapore Dollar Revolving Credit Advance, (d) any IDR Revolving Credit Advances, is not a Saturday, a Sunday, a public holiday or any other day on which commercial banks in Jakarta or Hong Kong are authorized or required by law to remain closed, (e) any KRW-A Revolving Credit Advances or KRW-B Revolving Credit Advances, is not a Saturday, a Sunday or any other day on which commercial banks in Seoul or Hong Kong are authorized or required by law to remain closed, (f) any Advances denominated in any Supplemental Currency, on which dealings are carried on in the Relevant Interbank Market of the jurisdiction that issues such Supplemental Currency or (g) any Advances denominated in Canadian Dollars, is any day other than a Saturday, a Sunday or other day on which commercial banks are authorized to close under the applicable laws of, or are in fact closed in, the state where the Administrative Agent’s office is located and in Toronto; provided, however, that as used in the definition of EURIBO Rate, “Business Day” means a day on which the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET) System is open for settlement of payments in Euro.
“Calculation Date” means (a) each date on which a Letter of Credit or Bank Guarantee is issued under the Multicurrency Letter of Credit Facility with a stated amount denominated in a currency other than Dollars in connection with Letters of Credit or Bank Guarantees issued under the Multicurrency Letter of Credit Facility, (b) the last Business Day of each calendar quarter and (c) if a Default or an Event of Default shall have occurred and be continuing, such additional dates as the Administrative Agent shall specify.
“Canadian Dollars” and the “CDN$” sign each means lawful currency of Canada.
“Canadian Prime Rate” shall mean, for any day, a rate per annum equal to the higher of (a) the Canadian Reference Rate and (b) the sum of ½ of 1% plus Adjusted Term CORRA for Swing Line Advances (assuming an applicable term of 30 days) for such day. Notwithstanding anything to the contrary in this Agreement, in no event shall the Canadian Prime Rate be less than the Floor for any Advance that has not been identified by the Borrowers to the Administrative Agent as being subject to a Hedge Agreement.
“Canadian Reference Rate” shall mean, for any day, the rate of interest per annum established by Citibank N.A., Canadian Branch as the reference rate of interest then in effect for determining interest rates on commercial loans denominated in Canadian Dollars made by it in Canada. The Canadian Reference Rate is a reference rate and does not necessarily represent the lowest or best rate actually available. Notwithstanding anything to the contrary in this Agreement, in no event shall the Canadian Reference Rate be less than the Floor for any Advance that has not been identified by the Borrowers to the Administrative Agent as being subject to a Hedge Agreement.
“Capitalized Leases” means all leases that have been or should be, in accordance with GAAP, recorded as capitalized leases.
“Capitalized Value” means (a) in the case of any Asset other than a Leased Asset, the Adjusted Net Operating Income of such Asset divided by 6.50%, and (b) in the case of any Leased Asset other than a Short-Term Leased Asset, the Adjusted Net Operating Income of such Asset divided by 8.75%.
“Cash Collateralize” means, in respect of an obligation, provide and pledge (as a first priority perfected security interest) cash collateral in the currency of the obligation that is to be cash collateralized, at a location and pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent, the applicable Issuing Bank and the applicable Swing Line Bank and “Cash Collateralization” shall have a corresponding meaning.
“Cash Equivalents” means any of the following, to the extent owned by the Parent Guarantor or any of its Subsidiaries free and clear of all Liens (other than Permitted Liens) and having a maturity of not greater than 360 days from the date of acquisition thereof: (a) readily marketable direct obligations of the United States or any agency or instrumentality thereof or obligations unconditionally guaranteed by the full faith and credit of the United States, (b) readily marketable direct obligations of any state of the United States or any political subdivision of any such state or any public instrumentality thereof having, at the time of acquisition, the highest rating obtainable from either Moody’s or S&P, (c) domestic and foreign certificates of deposit or domestic time deposits or foreign deposits or bankers’ acceptances (foreign or domestic) in Sterling, Canadian Dollars, Swiss Francs, Euros, Hong Kong Dollars, Dollars, Singapore Dollars, Yen, Australian Dollars or Mexican Pesos that are issued by a bank: (I) which has, at the time of acquisition, a long-term rating of at least A or the equivalent from S&P, Moody’s or Fitch and (II) if a United States domestic bank, which is a member of the Federal Deposit Insurance Corporation, (d) commercial paper (foreign and domestic) rated at least “Prime-1” (or the then equivalent grade) by Moody’s or “A-1” (or the then equivalent grade) by S&P, (e) overnight securities repurchase agreements, or reverse repurchase agreements secured by any of the foregoing types of securities or debt instruments, provided that the collateral supporting such repurchase agreements shall have a value not less than 101% of the principal amount of the repurchase agreement plus accrued interest; and (f) money market funds invested in investments substantially all of which consist of the items described in clauses (a) through (e) foregoing.
“Central Bank Rate” means (a) with respect to Advances denominated in Sterling, the Bank of England’s Bank Rate as published by the Bank of England from time to time, (b) with respect to Advances denominated in Swiss Francs, the policy rate of the Swiss National Bank as published by the Swiss National Bank from time to time, (c) with respect to Advances denominated in Euro, (i) the applicable Central Bank Rate Adjustment plus, as selected by the Administrative Agent, (ii)(x) the fixed rate for the main refinancing operations of the European Central Bank (or any successor thereto), or, if that rate is not published, the minimum bid rate for the main refinancing operations of the European Central Bank (or any successor thereto), each as published by the European Central Bank (or any successor thereto) from time to time, (y) the rate for the marginal lending facility of the European Central Bank (or any successor thereto), as published by the European Central Bank (or any successor thereto) from time to time or (z) the rate for the deposit facility of the central banking system of the Participating Member States, as published by the European Central Bank (or any successor thereto) from time to time, (d) with respect to Advances denominated in Yen, (i) the applicable Central Bank Rate Adjustment plus (ii) the
“short-term prime rate” as publicly announced by the Bank of Japan (or any successor thereto) from time to time and (e) with respect to Advances denominated in any other currency, (i) the applicable Central Bank Rate Adjustment plus (ii) a central bank rate as determined by the Administrative Agent in its reasonable discretion; provided, however, that in no event shall the Central Bank Rate be less than 0.00% per annum for any Advance that has not been identified by the Borrowers to the Administrative Agent as being subject to a Hedge Agreement.
“Central Bank Rate Adjustment” means, (a) in relation to the applicable Central Bank Rate prevailing at close of business on any Daily RFR Business Day with respect to Advances denominated in Sterling or Swiss Francs, the twenty percent (20%) trimmed arithmetic mean (calculated by the Administrative Agent) of the applicable Central Bank Rate Spreads for the five most immediately preceding Daily RFR Business Days for which the applicable RFR is available and (b) in relation to Advances denominated in any other currency, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent giving due consideration to (i) the historical difference between the Benchmark which, as of the date of determination, is unavailable due to a Market Disruption Event or is subject to the circumstances described in Section 2.10(d), and the Central Bank Rate for the applicable currency over the prior twelve month period and/or (ii) any evolving or then-prevailing market convention for determining such spread adjustment, or method for calculating or determining such spread adjustment for syndicated credit facilities denominated in the applicable currency at such time.
“Central Bank Rate Spread” means, in relation to any Daily RFR Business Day and applicable RFR, the difference (expressed as a percentage rate per annum) calculated by the Administrative Agent of (a) the RFR for that Daily RFR Business Day and (b) the Central Bank Rate prevailing at the close of business on that Daily RFR Business Day (relevant to such RFR).
“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended from time to time.
“Certified Capacity” means the total amount of data center power capacity, measured in megawatts of IT power (“MW-IT”) of data centers owned, operated and/or managed by the Operating Partnership or its Subsidiaries that received certification according to:
(a)the standards of Leadership in Energy and Environmental Design (LEED) at one of the following levels: Silver, Gold or Platinum;
(b)Building Research Establishment Environmental Assessment Method (BREEAM): Very Good, Excellent or Outstanding;
(c)Singapore BCA Green Mark: Gold, GoldPlus or Platinum;
(d)Green Globes (administered by the US Green Building Initiative): 3 Globes or 4 Globes;
(e)Certified Energy Efficient Datacenter Award: Silver or Gold;
(f)Comprehensive Assessment System for Built Environment Efficiency: B+, A or S;
(g)DGNB (Deutsche Gesellschaft für Nachhaltiges Bauen): Silver, Gold, or Platinum;
(h)National Australian Built Environment Rating System: minimum 4 Star or above;
(i)Green Building Council of Australia Green Star (including Design and As Built): minimum 4 Star or above; or
(j)the standards of one or more generally comparable global or country-specific green building certification standards and certified at a level comparable to the certification levels specified in clause (a) above;
in each case as certified by the KPI Metric Auditor. For each project certified at the applicable levels, the as-designed electrical power usage effectiveness (PUE) will be not more than 1.5.
“Change of Control” means the occurrence of any of the following: (a) any Person or two or more Persons acting in concert shall have acquired and shall continue to have following the date hereof beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange Commission under the Securities Exchange Act), directly or indirectly, of Voting Interests of the Parent Guarantor (or other securities convertible into such Voting Interests) representing 40% or more of the combined voting power of all Voting Interests of the Parent Guarantor; or (b) during any consecutive twelve month period commencing on or after the Closing Date, individuals who at the beginning of such period constituted the Board of Directors of the Parent Guarantor (together with any new directors whose election by the Board of Directors or whose nomination for election by the Parent Guarantor stockholders was approved by a vote of at least a majority of the members of the Board of Directors then in office who either were members of the Board of Directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the members of the Board of Directors then in office, except for any such change resulting from (x) death or disability of any such member, (y) satisfaction of any requirement for the majority of the members of the Board of Directors of the Parent Guarantor to qualify under applicable law as independent directors, or (z) the replacement of any member of the Board of Directors who is an officer or employee of the Parent Guarantor with any other officer or employee of the Parent Guarantor or any of its Affiliates; or (c) any Person or two or more Persons acting in concert shall have acquired and shall continue to have following the date hereof, by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation, will result in its or their acquisition of the power to direct, directly or indirectly, the management or policies of the Parent Guarantor; or (d) the Parent Guarantor ceases to be the general partner of the Operating Partnership; or (e) the Parent Guarantor ceases to be the legal and beneficial owner of at least 80% of the general partnership interests of the Operating Partnership.
“Citibank” has the meaning specified in the recital of parties to this Agreement.
“Closing Date” means the date of this Agreement.
“Commitment” means a U.S. Dollar Revolving Credit Commitment, a Multicurrency Revolving Credit Commitment, a Singapore Dollar Revolving Credit Commitment, an Australian Dollar Revolving Credit Commitment, an IDR Revolving Credit Commitment, a KRW-A Revolving Credit Commitment, a KRW-B Revolving Credit Commitment, a Swing Line Commitment, a Letter of Credit Commitment or a Supplemental Tranche Commitment.
“Commitment Date” has the meaning specified in Section 2.18(b).
“Commitment Increase” has the meaning specified in Section 2.18(a).
“Commitment Increase Minimum” means (a) $3,000,000 in the case of the U.S. Dollar Revolving Credit Tranche or Incremental Term Loan Facility, as applicable, (b) $3,000,000 in the case of the Multicurrency Revolving Credit Tranche, (c) A$3,000,000 in the case of the Australian Dollar Revolving Credit Tranche, (d) S$3,000,000 in the case of the Singapore Dollar Revolving Credit Tranche, (e) IDR30,000,000,000 in the case of the IDR Revolving Credit Tranche, (f) KRW3,000,000,000 in the case of the KRW-A Revolving Credit Tranche and the KRW-B Revolving Credit Tranche, and (g) the Equivalent of $3,000,000 in the case of any Supplemental Tranche.
“Commitment Minimum” means (a) $3,000,000 in the case of the U.S. Dollar Revolving Credit Tranche or Incremental Term Loan Facility, as applicable, (b) $3,000,000 in the case of the Multicurrency Revolving Credit Tranche, (c) A$3,000,000 in the case of the Australian Dollar Revolving Credit Tranche, (d) S$3,000,000 in the case of the Singapore Dollar Revolving Credit Tranche, (e) IDR30,000,000,000 in the case of the IDR Revolving Credit Tranche, (f) KRW3,000,000,000 in the
case of the KRW-A Revolving Credit Tranche and the KRW-B Revolving Credit Tranche, and (g) the Equivalent of $3,000,000 in the case of any Supplemental Tranche.
“Committed Foreign Currencies” means Sterling, Australian Dollars, Singapore Dollars, Hong Kong Dollars, Yen, Canadian Dollars, Euros, Korean Won, Indonesian Rupiah, Swiss Francs and each Supplemental Currency.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Communications” has the meaning specified in Section 9.02(b).
“Confidential Information” means information that any Loan Party furnishes to the Administrative Agent or any Lender Party in writing designated as confidential, but does not include any such information that is or becomes generally available to the public other than by way of a breach of the confidentiality provisions of Section 9.12 or that is or becomes available to the Administrative Agent or such Lender Party from a source other than the Loan Parties or the Administrative Agent or any other Lender Party and not in violation of any confidentiality agreement with respect to such information that is actually known to Administrative Agent or such Lender Party.
“Consent Request Date” has the meaning specified in Section 9.01(b).
“Consolidated” refers to the consolidation of accounts in accordance with GAAP.
“Consolidated Debt” means Debt of the Parent Guarantor and its Subsidiaries plus the JV Pro Rata Share of Debt of Unconsolidated Affiliates that, in each case, is included as a liability on the Consolidated balance sheet of the Parent Guarantor in accordance with GAAP, minus unrestricted cash and Cash Equivalents on hand of the Parent Guarantor and its Subsidiaries.
“Consolidated Secured Debt” means Secured Debt of the Parent Guarantor and its Subsidiaries that is included as a liability on the Consolidated balance sheet of the Parent Guarantor in accordance with GAAP.
“Contingent Obligation” means, with respect to any Person, any Obligation or arrangement of such Person to guarantee or intended to guarantee any Debt, leases, dividends or other payment Obligations (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation (and without duplication), (a) the direct or indirect guarantee (other than (x) endorsements in the ordinary course of business of negotiable instruments or documents for deposit or collection, (y) indemnification obligations and purchase price adjustments pursuant to acquisition agreements entered into in the ordinary course of business and (z) guarantees of liabilities of third parties that do not constitute Debt)), co-making, discounting with recourse or sale with recourse by such Person of the Obligation of a primary obligor, (b) the Obligation to make take or pay or similar payments, if required, regardless of nonperformance by any other party or parties to an agreement or (c) any Obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (A) for the purchase or payment of any such primary obligation or (B) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, assets, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made (or, if less, the maximum amount of such primary obligation for which such Person may be liable pursuant to the terms of the instrument evidencing such Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder), as determined by such Person in good faith, all as recorded on
the balance sheet or on the footnotes to the most recent financial statements of such Person in accordance with GAAP. Notwithstanding anything contained herein to the contrary, “Contingent Obligation” shall not include (x) guarantees of loan commitments or construction loans in the amount of any funds advanced or drawn under such loan commitments or construction loans or (y) contingent obligations under any Special Limited Contribution Agreement (“SLCA”) in connection with such Person’s contributions of Real Property to any Property Fund pursuant to which a Person is obligated to make additional capital contributions to the respective Property Fund under certain circumstances unless the obligations under the SLCA are required under GAAP to be included as “liabilities” on the balance sheet of such Person.
“Controlled Joint Venture” means any (a) Unconsolidated Affiliate in which the Parent Guarantor or any of its Subsidiaries (i) holds a majority of Equity Interests and (ii) after giving effect to all buy/sell provisions contained in the applicable constituent documents of such Unconsolidated Affiliate, controls all material decisions of such Unconsolidated Affiliate, including without limitation the financing, refinancing and disposition of the assets of such Unconsolidated Affiliate, or (b) Subsidiary of the Operating Partnership that is not a Wholly-Owned Subsidiary.
“Conversion”, “Convert” and “Converted” each refer to a conversion of Advances of one Type into Advances of another Type pursuant to Section 2.07, 2.09 or 2.10.
“Convertible Indebtedness” has the meaning specified in the definition of Equity Interests.
“CORRA” means the Canadian Overnight Repo Rate Average administered and published by the Bank of Canada (or any successor administrator).
“Co-Sustainability Structuring Agents” has the meaning specified in the recital of parties to this Agreement.
“Covered Entity” has the meaning specified in Section 9.21(b).
“Covered Party” has the meaning specified in Section 9.21(a).
“CPR Advance” means a Swing Line Advance in Canadian Dollars under the Multicurrency Swing Line Facility that bears interest at a rate determined by reference to the Canadian Prime Rate.
“Cross-stream Guaranty” has the meaning specified in Section 7.09(g).
“Customary Carve-Out Agreement” has the meaning specified in the definition of Non-Recourse Debt.
“Daily Compounded CORRA” means, for any day, CORRA with interest accruing on a compounded daily basis, with the methodology and conventions for this rate (which will include compounding in arrears with a lookback) being established by the Administrative Agent in accordance with the methodology and conventions for this rate selected or recommended by the Bank of Canada, or a committee officially endorsed or convened by the Bank of Canada, or any successor thereto, for determining compounded CORRA for business loans; provided that if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion; and provided that if the administrator has not provided or published CORRA, then, in respect of any day for which CORRA is required, references to CORRA will be deemed to be references to the last provided or published CORRA.
“Daily RFR Advance” means an Advance that bears interest at a rate based on a Daily Simple RFR.
“Daily RFR Borrowing” means, as to any Borrowing, the Daily RFR Advances comprising such Borrowing.
“Daily RFR Business Day” means, for any Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, (a) Sterling, any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which banks are closed for general business in London, (b) Swiss Francs, any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which banks are closed for the settlement of payments and foreign exchange transactions in Zurich, (c) Singapore Dollars, any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which banks are closed for general business in Singapore or (d) Dollars, any U.S. Government Securities Business Day.
“Daily RFR Interest Payment Date” means, with respect to each Daily RFR Advance, (a)(i) having a tenor of one month, each date that is on the numerically corresponding day in each calendar month that is one month after the Borrowing of such Advance, (ii) having a tenor of three months, each date that is on the numerically corresponding day in each calendar month that is three months after the Borrowing of such Advance, (iii) having a tenor of six months, (x) each date that is on the numerically corresponding day in each calendar month that is six months after the Borrowing of such Advance and (y) with respect to Advances under the U.S. Dollar Revolving Credit Tranche, each date that is on the numerically corresponding day in each calendar month that is three months after the Borrowing of such Advance, (iv) having a tenor of twelve months, (x) each date that is on the numerically corresponding day in each calendar month that is twelve months after the Borrowing of such Advance and (y) with respect to Advances under the U.S. Dollar Revolving Credit Tranche, each date that is on the numerically corresponding day in each calendar month that is three months after the Borrowing of such Advance or (v) having a tenor of less than one month, each date occurring the number of days after the Borrowing of such Advance that is equal to the number of days of such tenor; provided, however, that, as to any such Daily RFR Advance described in clauses (a)(i), (a)(ii), (a)(iii), (a)(iv) and (a)(v), (A) if any such date would be a day other than a Business Day, such date shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such date shall be the next preceding Business Day and (B) the Daily RFR Interest Payment Date with respect to any Borrowing that occurs on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in any applicable calendar month) shall be the last Business Day of any such succeeding applicable calendar month; provided further that for purposes of this definition, the date of a Borrowing of an Advance initially shall be the date on which such Advance is made and thereafter shall be the effective date of the most recent Conversion or continuation of such Advance or Borrowing, and (b) the Commitment Termination Date.
“Daily RFR Rate Day” has the meaning specified in the definition of “Daily Simple RFR”.
“Daily Simple RFR” means, for any day (a “Daily RFR Rate Day”), a rate per annum, rounded in each case to four decimal places, equal to, for any Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to:
(a)Sterling, Adjusted SONIA for the day (such day “i”) that is five (5) Daily RFR Business Days prior to (A) if such Daily RFR Rate Day is an Daily RFR Business Day, such Daily RFR Rate Day or (B) if such Daily RFR Rate Day is not an Daily RFR Business Day, the Daily RFR Business Day immediately preceding such Daily RFR Rate Day, in each case, using the SONIA component of such Adjusted SONIA that is published by the SONIA Administrator on the SONIA Administrator’s Website;
(b)Swiss Francs, Adjusted SARON for the day (such day “i”) that is five (5) Daily RFR Business Days prior to (A) if such Daily RFR Rate Day is an Daily RFR Business Day, such Daily RFR Rate Day or (B) if such Daily RFR Rate Day is not an Daily RFR Business Day, the Daily RFR Business Day immediately preceding such Daily RFR Rate Day, in each case, using the SARON component of such Adjusted SARON that is published by the SARON Administrator on the SARON Administrator’s Website;
(c)Singapore Dollars, SORA for the day (such day “i”) that is five (5) Daily RFR Business Days prior to (A) if such Daily RFR Rate Day is an Daily RFR Business Day, such Daily RFR Rate Day
or (B) if such Daily RFR Rate Day is not an Daily RFR Business Day, the Daily RFR Business Day immediately preceding such Daily RFR Rate Day, in each case, using SORA as published by the SORA Administrator on the SORA Administrator’s Website;
(d)Dollars, Adjusted Daily SOFR for the day (such day “i”) that is five (5) Daily RFR Business Days prior to (A) if such Daily RFR Rate Day is a Daily RFR Business Day, such Daily RFR Rate Day or (B) if such Daily RFR Rate Day is not a Daily RFR Business Day, the Daily RFR Business Day immediately preceding such Daily RFR Rate Day, in each case, using the SOFR component of such Adjusted Daily SOFR that is published by the SOFR Administrator on the SOFR Administrator’s Website; and
(e)Canadian Dollars, a rate per annum equal to Adjusted Daily CORRA for the day (such day “i”) that is five (5) Daily RFR Business Days prior to (A) if such Daily RFR Rate Day is a Daily RFR Business Day, such Daily RFR Rate Day or (B) if such Daily RFR Rate Day is not a Daily RFR Business Day, the Daily RFR Business Day immediately preceding such Daily RFR Rate Day, in each case, using the CORRA component of such Adjusted Daily CORRA that is published by the Relevant Canadian Governmental Body on the Relevant Canadian Governmental Body’s Website.
If by 5:00 pm (local time for the applicable RFR) on the second (2nd) Daily RFR Business Day immediately following any day “i”, the RFR in respect of such day “i” has not been published on the applicable RFR Administrator’s Website and a Benchmark Replacement Date with respect to the applicable Daily Simple RFR has not occurred, then the RFR for such day “i” will be the RFR as published in respect of the first preceding Daily RFR Business Day for which such RFR was published on the RFR Administrator’s Website; provided that any RFR determined pursuant to this sentence shall be utilized for purposes of calculation of Daily Simple RFR for no more than three (3) consecutive Daily RFR Rate Days. Any change in Daily Simple RFR due to a change in the applicable RFR shall be effective from and including the effective date of such change in the RFR without notice to the Borrowers.
“Daily Simple SOFR” means, for any Daily RFR Rate Date, a rate per annum equal to SOFR for the day (such day “i”) that is five (5) Daily RFR Business Days prior to (A) if such Daily RFR Rate Day is a Daily RFR Business Day, such Daily RFR Rate Day or (B) if such Daily RFR Rate Day is not a Daily RFR Business Day, the Daily RFR Business Day immediately preceding such Daily RFR Rate Day, in each case as published by the SOFR Administrator on the SOFR Administrator’s Website.
“Danish Guarantor” has the meaning specified in Section 7.09(t).
“Debt” of any Person means, without duplication for purposes of calculating financial ratios, (a) all Debt for Borrowed Money of such Person, (b) all Obligations of such Person for the deferred purchase price of property or services (other than (i) trade payables incurred in the ordinary course of business and not overdue by more than 60 days or that are subject to a Good Faith Contest and (ii) any purchase price adjustment or earnout obligation until such purchase price adjustment or earnout obligation becomes a liability on the balance sheet of such Person in accordance with GAAP), (c) all Obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all Obligations of such Person created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all Obligations of such Person as lessee under Capitalized Leases, (f) all Obligations of such Person under acceptance, letter of credit or similar facilities (but excluding any of the foregoing to the extent secured by cash collateral), (g) all Obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment (but excluding for the avoidance of doubt (i) regular quarterly dividends, (ii) periodic capital gains distributions and (iii) special year-end dividends made in connection with maintaining the Parent Guarantor’s status as a REIT and allowing it to avoid income and excise taxes) in respect of any Equity Interests in such Person or any other Person (other than Preferred Interests that are issued by any Loan Party or Subsidiary thereof and classified as either equity or minority interests
pursuant to GAAP) or any warrants, rights or options to acquire such Equity Interests, (h) all Obligations of such Person in respect of Hedge Agreements, valued at the Net Agreement Value thereof, (i) all Contingent Obligations of such Person with respect to Debt and (j) all indebtedness and other payment Obligations referred to in clauses (a) through (i) above of another Person secured by (or for which the holder of such Debt has an existing right, contingent or otherwise, to be secured by) any Lien on property (including, without limitation, accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such indebtedness or other payment Obligations; provided, however, that (A) in the case of the Parent Guarantor and its Subsidiaries “Debt” shall also include, without duplication, the JV Pro Rata Share of Debt for each Unconsolidated Affiliate and (B) for purposes of computing the Leverage Ratio, “Debt” shall be deemed to exclude (1) Redeemable Preferred Interests issued as trust preferred securities by the Parent Guarantor and the Borrowers to the extent the same are by their terms subordinated to the Facility and not Redeemable until after the Termination Date, as of the date of such computation, (2) Obligations under any operating lease to the extent such Obligations are already included in Net Operating Income and (3) any Permitted Warrant Transactions.
“Debt for Borrowed Money” of any Person means all items that, in accordance with GAAP, would be classified as indebtedness on a Consolidated balance sheet of such Person; provided, however, that in the case of the Parent Guarantor and its Subsidiaries “Debt for Borrowed Money” shall also include, without duplication, the JV Pro Rata Share of Debt for Borrowed Money for each Unconsolidated Affiliate; provided further that as used in the definition of “Fixed Charge Coverage Ratio”, in the case of any acquisition or disposition of any direct or indirect interest in any Asset (including through the acquisition of Equity Interests) by the Parent Guarantor or any of its Subsidiaries during the four-fiscal quarter period of the Parent Guarantor most recently ended for which financial statements are required to be delivered to the Administrative Agent pursuant to Section 5.03(b) or (d), as the case may be, the term “Debt for Borrowed Money” (a) shall include, in the case of an acquisition, an amount equal to the Debt for Borrowed Money directly relating to such Asset existing immediately following such acquisition (computed as if such indebtedness in respect of such Asset was in existence for the Parent Guarantor or such Subsidiary for the entire four-fiscal quarter period), and (b) shall exclude, in the case of a disposition, an amount equal to the actual Debt for Borrowed Money to which such Asset was subject to the extent such Debt for Borrowed Money was repaid or otherwise terminated upon the disposition of such Asset during such four-fiscal quarter period.
“Debt Rating” means, as of any date, the rating that has been most recently assigned by S&P, Fitch or Moody’s, as the case may be, to the long-term senior unsecured non-credit enhanced debt of the Parent Guarantor or if applicable, to the “implied rating” of the Parent Guarantor’s long-term senior unsecured credit enhanced debt; provided that if neither of the foregoing ratings are available on such date, then Debt Rating shall mean the rating that has been most recently assigned by S&P, Fitch or Moody’s, as the case may be, as the Parent Guarantor’s issuer rating. For purposes of the foregoing, (i) if any rating established by S&P, Fitch or Moody’s shall be changed, such change shall be effective as of the date on which such change is first announced publicly by the rating agency making such change and (ii) if S&P, Fitch or Moody’s shall change the basis on which ratings are established, each reference to the Parent Guarantor’s Debt Rating announced by S&P, Fitch or Moody’s, as the case may be, shall refer to the then equivalent rating by S&P, Fitch or Moody’s, as the case may be. For the purposes of determining the Applicable Margin, (A) if the Parent Guarantor has three ratings and such ratings are split, then, if the difference between the highest and lowest is one level apart, it will be the highest of the three, provided that if the difference is more than one level, the average rating of the two highest will be used (or, if such average rating is not a recognized category, then the second highest rating will be used), (B) if the Parent Guarantor has only two ratings, it will be the higher of the two, provided that if the ratings are more than one level apart, the average rating will be used (or, if such average rating is not a recognized category, then the higher rating will be used), and (C) if the Parent Guarantor has only one rating assigned by either S&P or Moody’s, then the Debt Rating shall be such credit rating.
“Decreasing Subfacility” has the meaning specified in Section 2.19(a).
“Decreasing Tranche” has the meaning specified in Section 2.19(a).
“Default” means any Event of Default or any event that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
“Default Right” has the meaning specified in Section 9.21(b).
“Defaulting Lender” means at any time, subject to Section 2.21(b), (i) any Lender that has failed for two (2) or more Business Days to comply with its obligations under this Agreement to make an Advance or make any other payment due hereunder (each, a “funding obligation”) unless such Lender notifies the Administrative Agent in writing that such failure is the result of such Lender’s good faith determination that one or more conditions precedent to funding (which conditions precedent, together with the applicable default, if any, shall be specifically identified in such writing) has not been satisfied, (ii) any Lender that has notified the Administrative Agent, the Borrowers, any Issuing Bank or any Swing Line Bank in writing, or has stated publicly, that it does not intend to comply with its funding obligations hereunder (unless such writing or public statement states that such position is based on such Lender’s good faith determination that a condition precedent to funding (which condition precedent, together with the applicable default, if any, shall be specifically identified in such writing or public statement) cannot be satisfied), (iii) any Lender that has, for three or more Business Days after written request of the Administrative Agent or any Borrower, failed to confirm in writing to the Administrative Agent and the applicable Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender will cease to be a Defaulting Lender pursuant to this clause (iii) upon the Administrative Agent’s and the applicable Borrower’s receipt of such written confirmation), or (iv) any Lender with respect to which a Lender Insolvency Event has occurred and is continuing with respect to such Lender or its Parent Company, provided that a Lender shall not be a Defaulting Lender solely by virtue of (x) the ownership or acquisition of any equity interest in that Lender or any direct or indirect Parent Company thereof by an Applicable Governmental Authority, or (y) if such Lender or its direct or indirect Parent Company is solvent, the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian, or other similar official by a supervisory authority or regulator under or based on the law in the country where such Lender or such Parent Company is subject to home jurisdiction, if applicable law requires that such appointment not be disclosed, in each case so long as such ownership interest or appointment, as applicable, does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Applicable Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender (provided, in each case, that neither the reallocation of funding obligations provided for in Section 2.21(a) as a result of a Lender being a Defaulting Lender nor the performance by Non-Defaulting Lenders of such reallocated funding obligations will by themselves cause the relevant Defaulting Lender to become a Non-Defaulting Lender; provided further that a Lender shall not be a Defaulting Lender solely by virtue of (I) the ownership or acquisition of any equity interest in that Lender or any direct or indirect Parent Company thereof by an Applicable Governmental Authority, or (II) if such Lender or its direct or indirect Parent Company is solvent, the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian, or other similar official by a supervisory authority or regulator under or based on the law in the country where such Lender or such Parent Company is subject to home jurisdiction, if applicable law requires that such appointment not be disclosed, in each case so long as such ownership interest or appointment, as applicable, does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States). Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any of clauses (i) through (iv) above will be conclusive and binding absent manifest error, and such Lender will be deemed to be a Defaulting Lender (subject to Section 2.21(b)) upon notification of such determination by the Administrative Agent to the Borrowers, the Issuing Banks, the Swing Line Banks and the Lenders.
“Development Asset” means Real Property (whether owned or leased) acquired for development into a Technology Asset that, in accordance with GAAP, would be classified as a development property on a Consolidated balance sheet of the Parent Guarantor and its Subsidiaries. For the avoidance of any doubt, Development Assets shall not constitute Technology Assets but assets that are leased by the Operating Partnership or a Subsidiary thereof as lessee pursuant to a lease (other than a ground lease) shall not be precluded from being Development Assets.
“Digital Euro” has the meaning specified in the recital of parties to this Agreement.
“Digital US Finco” has the meaning specified in the recital of parties to this Agreement.
“Direction” has the meaning specified in Section 2.12(b).
“Division” and “Divide” each refer to a division of a Delaware limited liability company into two or more newly formed limited liability companies pursuant to the Delaware Limited Liability Company Act.
“Dollars” and the “$” sign each means lawful currency of the United States of America.
“Dutch Borrower” means each entity organized under the laws of the Netherlands and designated as a Borrower.
“EBITDA” means, for any period, without duplication, (a) the sum of (i) net income (or net loss) (excluding gains (or losses) from extraordinary and unusual items and the non-cash component of non-recurring items), (ii) interest expense, (iii) income tax expense, (iv) depreciation expense, (v) amortization expense (including, without limitation, amortization of goodwill and other intangible assets), in each case of the Parent Guarantor and its Subsidiaries determined on a Consolidated basis and in accordance with GAAP for such period, and (vi) to the extent such amounts were deducted in calculating net income (or net loss), (A) losses from extraordinary, non-recurring and unusual items (including, without limitation, prepayment penalties and costs or fees incurred in connection with any capital markets offering, debt financing, or amendment thereto, redemption or exchange of indebtedness, lease termination, business combination, acquisition, disposition, recapitalization or similar transaction (regardless of whether such transaction is completed)), (B) expenses and losses associated with Hedge Agreements, (C) expenses and losses resulting from fluctuations in foreign exchange rates, (D) non-cash stock compensation costs for such period, (E) non-recurring integration costs and expenses resulting from operational changes and improvements (including, without limitation, severance costs and business optimization expenses), (F) non-recurring charges and expenses, restructuring charges, transaction expenses (including, without limitation, transaction expenses incurred in connection with any merger or acquisition) and underwriters’ fees, and severance and retention payments in connection with any merger or acquisition, in each case for such period, less extraordinary gains and cash payments (not otherwise deducted in determining net income) made during such period with respect to non-cash charges that were added back in a prior period, (G) gains or losses from the early extinguishment of indebtedness and (H) gains or losses from sales of previously depreciated assets plus (b) Allowed Unconsolidated Affiliate Earnings, plus (c) with respect to each Unconsolidated Affiliate, the JV Pro Rata Share of the sum of (i) net income (or net loss) (excluding gains (or losses) from extraordinary and unusual items), (ii) interest expense, (iii) income tax expense, (iv) depreciation expense, (v) amortization expense of such Unconsolidated Affiliate (including, without limitation, amortization of goodwill and other intangible assets), and (vi) to the extent such amounts were deducted in calculating net income (or net loss) with respect to such Unconsolidated Affiliate, (A) losses from extraordinary, non-recurring and unusual items (including, without limitation, prepayment penalties and costs or fees incurred in connection with any capital markets offering, debt financing, or amendment thereto, redemption or exchange of indebtedness, lease termination, business combination, acquisition, disposition, recapitalization or similar transaction (regardless of whether such transaction is completed)), (B) expenses and losses associated with Hedge Agreements, (C) expenses and losses resulting from fluctuations in foreign exchange rates,
in each case determined on a consolidated basis and in accordance with GAAP for such period, (D) non-cash stock compensation costs for such period, (E) non-recurring integration costs and expenses resulting from operational changes and improvements (including, without limitation, severance costs and business optimization expenses), (F) non-recurring charges and expenses, restructuring charges, transaction expenses (including, without limitation, transaction expenses incurred in connection with any merger or acquisition) and underwriters’ fees, and severance and retention payments in connection with any merger or acquisition, in each case for such period, less extraordinary gains and cash payments (not otherwise deducted in determining net income) made during such period with respect to non-cash charges that were added back in a prior period, (G) gains or losses from the early extinguishment of indebtedness and (H) gains or losses from sales of previously depreciated assets.
“ECP” means an eligible contract participant as defined in the Commodity Exchange Act.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent;
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Date” means the first date on which the conditions set forth in Article III shall be satisfied.
“Eligible Assignee” means (a) with respect to each Tranche, (i) a Lender; (ii) an Affiliate or Fund Affiliate of a Lender and (iii) any other Person (other than a natural person or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person) approved by the Administrative Agent and, unless an Event of Default has occurred and is continuing at the time any assignment is effected pursuant to Section 9.07, the Operating Partnership, each such approval not to be unreasonably withheld or delayed and (b) with respect to each Letter of Credit Facility, a Person that is approved by the Administrative Agent and, unless an Event of Default has occurred and is continuing at the time any assignment is effected pursuant to Section 9.07, the Operating Partnership, such approval not to be unreasonably withheld or delayed; provided, however, that no (y) Potential Defaulting Lender or Defaulting Lender or (z) Loan Party nor any Affiliate of a Loan Party, shall qualify as an Eligible Assignee under this definition. Notwithstanding the foregoing, the Operating Partnership shall be deemed to have given its approval of any assignee described in clauses (a) and (b) above unless it shall object thereto by written notice to the Administrative Agent within ten Business Days after having received notice thereof.
“EMU Legislation” means legislative measures of the European Union for the introduction of, changeover to or operation of the Euro in one or more member states.
“Environmental Action” means any action, suit, demand, demand letter, claim, notice of non-compliance or violation, notice of liability or potential liability, investigation, proceeding, consent order or consent agreement relating in any way to any Environmental Law, any Environmental Permit or Hazardous Material or arising from alleged injury or threat to health, safety or the environment, including, without limitation, (a) by any governmental or regulatory authority for enforcement, cleanup, removal, response, remedial or other actions or damages and (b) by any governmental or regulatory authority or third party for damages, contribution, indemnification, cost recovery, compensation or injunctive relief.
“Environmental Law” means any Federal, state, local or foreign statute, law, ordinance, rule, regulation, code, order, writ, judgment, injunction, decree or judicial or agency interpretation, policy or guidance relating to pollution or protection of the environment, health, safety or natural resources, including, without limitation, those relating to the use, handling, transportation, treatment, storage, disposal, release or discharge of Hazardous Materials.
“Environmental Permit” means any permit, approval, identification number, license or other authorization required under any Environmental Law.
“Equity” has the meaning specified in Section 7.09(t).
“Equity Interests” means, with respect to any Person, shares of capital stock of (or other ownership or profit interests in) such Person, warrants, options or other rights for the purchase or other acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or other acquisition from such Person of such shares (or such other interests), and other ownership or profit interests in such Person (including, without limitation, partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are authorized or otherwise existing on any date of determination; provided, however, that notwithstanding the foregoing, “Equity Interests” shall not include any Debt convertible into or exchangeable for any of the foregoing (or into or for any combination of the foregoing and cash based on the value of the foregoing) (any such Debt referred to in this proviso, “Convertible Indebtedness”).
“Equivalent” in Dollars of any amount in a currency other than Dollars on any date means the equivalent in Dollars of such other currency determined at the Agent’s Spot Rate of Exchange on the date falling three Business Days prior to the date of conversion or notional conversion, as the case may be. “Equivalent” in any currency (other than Dollars) of any other currency (including Dollars) means the equivalent in such other currency determined at the Agent’s Spot Rate of Exchange on the date falling three Business Days prior to the date of conversion or notional conversion, as the case may be; provided, however, that with respect to Swing Line Advances, the equivalent amount shall be determined at the Agent’s Spot Rate of Exchange on the date of the applicable Swing Line Borrowing.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.
“ERISA Affiliate” means any Person that for purposes of Title IV of ERISA is a member of the controlled group of any Loan Party, or under common control with any Loan Party, within the meaning of Section 414 of the Internal Revenue Code.
“ERISA Event” means (a) the occurrence of a reportable event, within the meaning of Section 4043 of ERISA, with respect to any Plan unless the 30-day notice requirement with respect to such event has been waived by the PBGC; (b) the application for a minimum funding waiver pursuant to Section 412(c) of the Internal Revenue Code or Section 302(c) of ERISA with respect to a Plan; (c) the provision by the administrator of any Plan of a notice of intent to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including any such notice with respect to a plan amendment referred to in Section 4041(e) of ERISA); (d) with respect to any Plan, the cessation of operations at a facility of any Loan Party or any ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA resulting in a partial withdrawal by any Loan Party or any ERISA Affiliate from such Plan; (e) the withdrawal by any Loan Party or any ERISA Affiliate from a Multiple Employer Plan during a plan year for which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions for imposition of a lien under Section 303(k) of ERISA shall have been met with respect to any Plan; or (g) the institution by the PBGC of proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence of any event or condition described in Section 4042 of ERISA that constitutes grounds for the termination of, or the appointment of a trustee to administer, such Plan.
“Erroneous Payment” has the meaning specified in Section 8.08(a).
“Erroneous Payment Deficiency Assignment” has the meaning specified in Section 8.08(d).
“Erroneous Payment Impacted Tranche” has the meaning specified in Section 8.08(d).
“Erroneous Payment Return Deficiency” has the meaning specified in Section 8.08(d).
“Erroneous Payment Subrogation Rights” has the meaning specified in Section 8.08(d).
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“EURIBO Rate” means, for any Interest Period, the rate appearing on either Reuters or Bloomberg Screen EURIBOR01 Page (or on any successor or substitute page of such service, or any successor to or substitute for such service, in each case providing rate quotations comparable to those currently provided on such page of such service, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to deposits in Euro by reference to the Banking Federation of the European Union Settlement Rates for deposits in Euro) at 10:00 A.M. (London time) on the applicable Quotation Day, as the rate for deposits in Euro with a maturity comparable to such Interest Period; provided that for the purposes of this definition, if the EURIBO Rate is not available for the applicable Interest Period but is available for other Interest Periods with respect to any such Floating Rate Advance, then the rate shall be the Interpolated Screen Rate. Notwithstanding anything to the contrary in this Agreement, in no event shall the EURIBO Rate be less than the Floor for any Advance that has not been identified by the Borrowers to the Administrative Agent as being subject to a Hedge Agreement.
“Euro” and “€” each means the lawful currency of the European Union as constituted by the Treaty of Rome which established the European Community, as such treaty may be amended from time to time and as referred to in the EMU Legislation.
“Eurocurrency Rate” means, for all Eurocurrency Rate Advances comprising part of the same Borrowing, an interest rate per annum equal to:
(a)in the case of any Revolving Credit Advance (other than any Swing Line Advance) denominated in Euro for any Interest Period, the EURIBO Rate for such Interest Period;
(b)in the case of any Swing Line Advance denominated in Euro, the EURIBO Rate for an Interest Period of one week as of 11:00 A.M. (London time) on the day of such Swing Line Advance; and
(c)in the case of any Revolving Credit Advance denominated in Yen (other than any Swing Line Advance) for any Interest Period, the TIBOR Rate for such Interest Period;
provided that for the purposes of this definition, if no Applicable Screen Rate is available for the applicable Interest Period and currency but an Applicable Screen Rate is available for other Interest Periods for such currency with respect to any such Eurocurrency Rate Advance, then the rate shall be the Interpolated Screen Rate.
Notwithstanding anything to the contrary in this Agreement, in no event shall the Eurocurrency Rate be less than 0.00% per annum for any Advance that has not been identified by the Borrowers to the Administrative Agent as being subject to a Hedge Agreement.
“Eurocurrency Rate Advance” means each Advance denominated in Euros, Yen or any Committed Foreign Currency that bears interest as provided in Section 2.07(a)(ii) and each Swing Line Advance in Euros.
“Events of Default” has the meaning specified in Section 6.01.
“Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason not to constitute an “eligible contract participant” as defined in the Commodity Exchange Act at the time the Guaranty of such Guarantor becomes effective with respect to such related Swap Obligation.
“Excluded Taxes” has the meaning specified in Section 2.12(a).
“Existing Debt” means Debt for Borrowed Money of each Loan Party and its Subsidiaries outstanding immediately before the Effective Date.
“Existing Issuing Bank” means BNP Paribas, S.A.
“Existing Letters of Credit” means the letters of credit and bank guarantees listed on Schedule IV hereto.
“Existing Revolving Credit Agreement” has the meaning set forth in the recitals.
“Extension Date” has the meaning specified in Section 2.16.
“Extension Request” has the meaning specified in Section 2.16.
“Facility” means, collectively, all of the Tranches, including all Subfacilities thereof.
“Facility Exposure” means (a) with respect to each Tranche and each Subfacility, at any date of determination, the sum of the aggregate principal amount of all outstanding Advances relating to such Tranche or Subfacility, as applicable, and (i) in the case of a Tranche, the Available Amount under all outstanding Letters of Credit relating to the Subfacility that forms a part of such Tranche and (ii) in the case of a Letter of Credit Facility, the Available Amount under all outstanding Letters of Credit relating to such Letter of Credit Facility, and (b) with respect to the Facility, at any date of determination, the sum of the aggregate principal amount of all outstanding Advances and the Available Amount under all outstanding Letters of Credit.
“Facility Fee” has the meaning specified in Section 2.08(a).
“FATCA” has the meaning specified in Section 2.12(a).
“Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such day for such transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it; provided, however, that in no circumstance shall the Federal Funds Rate be less than the Floor.
“Fee Letter” means the fee letter dated as of July 11, 2024 among the Operating Partnership, BofA Securities, Bank of America, N.A., Citibank and JPMCB, as the same may be amended from time to time.
“Fiscal Year” means a fiscal year of the Parent Guarantor and its Consolidated Subsidiaries ending on December 31 in any calendar year.
“Fitch” means Fitch IBCA, Duff & Phelps, a division of Fitch, Inc. and any successor thereto.
“Fixed Charge Coverage Ratio” means, at any date of determination, the ratio of (a) Adjusted EBITDA to (b) the sum of (i) interest (including capitalized interest) payable in cash on all Debt for Borrowed Money plus (ii) scheduled amortization of principal amounts of all Debt for Borrowed Money payable (not including balloon maturity amounts) plus (iii) all cash dividends payable on any Preferred Interests (which, for the avoidance of doubt, shall include Preferred Interests structured as trust preferred securities), but excluding redemption payments or charges in connection with the redemption of Preferred Interests, in each case, of or by the Parent Guarantor and its Subsidiaries for the four-fiscal quarter period of the Parent Guarantor most recently ended for which financial statements are required to be delivered to the Administrative Agent pursuant to Section 5.03(b) or (d), as the case may be, determined on a Consolidated basis for such period.
“Floating Rate” means with respect to (a) Advances in Australian Dollars, BBR, (b) Advances in Hong Kong Dollars, HIBOR, (c) Advances in Canadian Dollars that are not Swing Line Advances, Adjusted Term CORRA, (d) Advances in Indonesian Rupiah, the JIBOR Rate, (e) Advances in Korean Won, the Base CD Rate, (f) Advances in Dollars, Adjusted Term SOFR, (g) Advances in Euro, the EURIBO Rate, (h) Advances in Yen, TIBOR and (h) Advances in a Supplemental Currency, the Applicable Screen Rate related thereto, except to the extent otherwise provided in a Supplemental Addendum. Notwithstanding anything to the contrary in this Agreement, in no event shall any Floating Rate be less than the Floor for any Advance that has not been identified by the Borrowers to the Administrative Agent as being subject to a Hedge Agreement.
“Floating Rate Advance” means each Revolving Credit Advance that bears interest at a Floating Rate.
“Floor” means (a) with respect to each Benchmark (or (i) in the case of SONIA, Adjusted SONIA, (ii) in the case of SARON, Adjusted SARON, (iii) in the case of SOFR, Adjusted Term SOFR or Adjusted Daily SOFR, as applicable, and (iv) in the case of CORRA, Adjusted Daily CORRA and Adjusted Term CORRA, as applicable) and the Federal Funds Rate, a rate of interest equal to zero percent per annum (0.00%) and (b) with respect to the Base Rate, one percent per annum (1.00%).
“Foreign Lender” has the meaning specified in Section 2.12(g).
“Foreign Subsidiary” means any Subsidiary of the Parent Guarantor (a) that is not incorporated or organized under the laws of any State of the United States or the District of Columbia, or (b) the principal assets, if any, of which are not located in the United States or are Equity Interests or other Investments in a Subsidiary described in clause (a) or (b) of this definition.
“French Borrower” means each entity established in France and designated as a Borrower.
“French Guarantor” has the meaning specified in Section 7.09(f)(i).
“French Qualifying Lender” means a Lender which: (a) fulfills the conditions imposed by French Law in order for a payment from a French Borrower under a Loan Document not to be subject to (or as the case may be, to be exempt from) any French Tax Deduction; or (b) is a French Treaty Lender.
“French Tax Deduction” means a deduction or withholding for or on account of Tax imposed by France from a payment under a Loan Document.
“French Treaty” has the meaning specified in the definition of “French Treaty State”.
“French Treaty Lender” means a Lender which: (a) is treated as resident of a French Treaty State for the purposes of the French Treaty; (b) does not carry on business in France through a permanent establishment with which that Lender’s participation in the Facility is effectively connected; (c) is acting from a Lending Office situated in its jurisdiction of incorporation; and (d) fulfills any other conditions which must be fulfilled under the French Treaty by residents of the French Treaty State for such residents to obtain exemption from Tax imposed by France on any payment made by a French Borrower under a Loan Document, subject to the completion of any necessary procedural formalities.
“French Treaty State” means a jurisdiction having a double taxation agreement with France (the “French Treaty”), which makes provision for full exemption from Tax imposed by France on interest payments.
“Fund Affiliate” means, with respect to any Lender that is a fund that invests in bank loans, any other fund that invests in bank loans and is administered or managed by the same investment advisor as such Lender or by an Affiliate of such investment advisor.
“Funding Deadline” means (a) 1:00 P.M. (New York City time) on the date of such Borrowing in the case of a Borrowing consisting of Advances under the U.S. Dollar Revolving Credit Tranche, (b) 10:00 A.M. (London time) on the date of such Borrowing in the case of a Borrowing consisting of Advances denominated in Sterling under the under the Multicurrency Revolving Credit Tranche, (c) 4:00 P.M. (London time) on the date of such Borrowing in the case of a Borrowing consisting of Advances denominated in Canadian Dollars under the Multicurrency Revolving Credit Tranche, (d) 2:00 P.M. (London time) on the date of such Borrowing in the case of a Borrowing consisting of Advances denominated in Dollars under the Multicurrency Revolving Credit Tranche, (e) 10:00 A.M. (London time) on the date of such Borrowing in the case of a Borrowing consisting of Advances denominated in Euros under the Multicurrency Revolving Credit Tranche, (f) 1:00 P.M. (London time) on the Business Day immediately prior to the date of such Borrowing in the case of a Borrowing consisting of Advances denominated in Yen under the Multicurrency Revolving Credit Tranche, (g) 10:00 A.M. (London time) on the date of such Borrowing in the case of a Borrowing consisting of Advances denominated in Swiss Francs under the Multicurrency Revolving Credit Tranche, (h) in the case of a Borrowing under the Singapore Dollar Revolving Credit Tranche consisting of (i) Advances denominated in Hong Kong Dollars, 12:00 P.M. (Hong Kong time) on the date of such Borrowing and (ii) Advances denominated in Singapore Dollars, 12:00 P.M. (Hong Kong time) on the Business Day immediately prior to the date of such Borrowing, (i) in the case of a Borrowing under the Australian Dollar Revolving Credit Tranche consisting of (i) Advances denominated in Australian Dollars, 8:00 A.M. (Hong Kong time) on the date of such Borrowing, (ii) Advances denominated in Dollars, 12:00 P.M. (Hong Kong time) on the date of such Borrowing and (iii) Advances denominated in Sterling and Euro, 9:00 A.M. (Hong Kong time) on the date of such Borrowing, (j) 10:00 A.M. (Hong Kong time) on the date of such Borrowing in the case of a Borrowing consisting of Advances under the IDR Revolving Credit Tranche, (k) 9:00 A.M. (Hong Kong time) on the date of such Borrowing in the case of a Borrowing consisting of Advances under the KRW-A Revolving Credit Tranche or the KRW-B Revolving Credit Tranche, and (l) the deadline set forth in the Supplemental Addendum with respect to Advances denominated in any Supplemental Currency.
“GAAP” has the meaning specified in Section 1.03.
“German GmbH Guarantor” has the meaning specified in Section 7.09(g).
“GmbHG” has the meaning specified in Section 7.09(g).
“Good Faith Contest” means the contest of an item as to which: (a) such item is contested in good faith, by appropriate proceedings, (b) reserves that are adequate are established with respect to such contested item in accordance with GAAP and (c) the failure to pay or comply with such contested item during the period of such contest is not reasonably likely to result in a Material Adverse Effect.
“Guaranteed Hedge Agreement” means any Hedge Agreement not prohibited under Article V that, at the time of execution thereof, is entered into by and between a Loan Party and any Hedge Bank.
“Guaranteed Obligations” has the meaning specified in Section 7.01.
“Guarantors” has the meaning specified in the recital of parties to this Agreement; provided, however, that for so long as a TMK is prohibited under the TMK Law from guaranteeing the obligations of another Person, a TMK shall not be a Guarantor.
“Guaranty” means the Guaranty by the Guarantors pursuant to Article VII, together with any and all Guaranty Supplements required to be delivered pursuant to Section 5.01(j).
“Guaranty Supplement” means a supplement entered into by an Additional Guarantor in substantially the form of Exhibit C hereto and otherwise in form and substance reasonably acceptable to the Administrative Agent.
“Hazardous Materials” means (a) petroleum or petroleum products, by-products or breakdown products, radioactive materials, friable or damaged asbestos-containing materials, polychlorinated biphenyls, radon gas and toxic mold and (b) any other chemicals, materials or substances designated, classified or regulated as hazardous or toxic or as a pollutant or contaminant under any Environmental Law.
“Hedge Agreements” means interest rate swap, cap or collar agreements, interest rate future or option contracts, currency swap agreements, currency future or option contracts and other hedging agreements.
“Hedge Bank” means any Lender Party or an Affiliate of a Lender Party in its capacity as a party to a Guaranteed Hedge Agreement, whether or not such Lender Party or Affiliate ceases to be a Lender Party or Affiliate of a Lender Party after entering into such Guaranteed Hedge Agreement; provided, however, that so long as any Lender Party is a Defaulting Lender, such Lender Party will not be a Hedge Bank with respect to any Guaranteed Hedge Agreement entered into while such Lender Party was a Defaulting Lender.
“HGB” has the meaning specified in Section 7.09(g).
“HIBOR” means, in relation to any Revolving Credit Advance in Hong Kong Dollars, (a) the Hong Kong Screen Rate or (b) if for any reason the Hong Kong Screen Rate is not available for the applicable Interest Period but is available for other Interest Periods with respect to any such Revolving Credit Advance in Hong Kong Dollars, then the rate shall be the Interpolated Screen Rate or (c) if the Hong Kong Screen Rate is not available, the rate reasonably determined by the Administrative Agent as the rate quoted to leading banks in the Hong Kong interbank market, in each case as of 11:00 A.M. Hong Kong time on the Quotation Day for the offering of deposits in Hong Kong Dollars for a period comparable to the applicable Interest Period. Notwithstanding anything to the contrary in this Agreement, in no event shall HIBOR be less than the Floor for any Advance that has not been identified by the Borrowers to the Administrative Agent as being subject to a Hedge Agreement.
“Hong Kong Dollars” and the “HK$” sign each means lawful currency of Hong Kong.
“Hong Kong Screen Rate” for any day or Interest Period, means the display designated as the HKABHIBOR Screen on the Reuters system or such other page as may replace such page on that system for the purpose of displaying offered rates for Hong Kong Dollar deposits for such day or Interest Period.
“ICC Rule” has the meaning specified in Section 2.03(g).
“IDR Borrowers” means the Initial Indonesia Borrower and each Additional Borrower established in Indonesia that is designated as a Borrower with respect to the IDR Revolving Credit Tranche or the IDR Letter of Credit Facility.
“IDR Issuing Bank” means JPMorgan Chase Bank, N.A. (or any Affiliate thereof), and any other Lender that is approved as an IDR Issuing Bank by the Administrative Agent and the Operating Partnership and any Eligible Assignee to which an IDR Letter of Credit Commitment hereunder has been assigned pursuant to Section 9.07 so long as each such Lender or each such Eligible Assignee expressly agrees to perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as an IDR Issuing Bank and notifies the Administrative Agent of its Applicable Lending Office and the amount of its IDR Letter of Credit Commitment (which information shall be recorded by the Administrative Agent in the Register) for so long as such initial IDR Issuing Bank, Lender or Eligible Assignee, as the case may be, shall have an IDR Letter of Credit Commitment.
“IDR Lender Party” means any IDR Revolving Lender or an IDR Issuing Bank.
“IDR Letter of Credit Commitment” means, with respect to any IDR Issuing Bank at any time, the amount set forth opposite such IDR Issuing Bank’s name on Schedule I hereto under the caption “IDR Letter of Credit Commitment” or, if such IDR Issuing Bank has entered into one or more Assignment and Acceptances, set forth for such IDR Issuing Bank in the Register maintained by the Administrative Agent pursuant to Section 9.07(d) as such IDR Issuing Bank’s “IDR Letter of Credit Commitment”, as such amount may be reduced at or prior to such time pursuant to Section 2.05 or 2.19 or increased pursuant to Section 2.19.
“IDR Letter of Credit Facility” means, at any time, an amount equal to the lesser of (a) the aggregate amount of the IDR Issuing Banks’ IDR Letter of Credit Commitments at such time, and (b) IDR 141,855,000,000, as such amount may be reduced at or prior to such time pursuant to Section 2.05. The IDR Letter of Credit Facility shall be a Subfacility of the IDR Revolving Credit Tranche.
“IDR Letters of Credit” has the meaning specified in Section 2.01(b)(iii).
“IDR Reference Bank” means the Jakarta branch of the Administrative Agent or any other bank or financial institution appointed as such from time to time by the Administrative Agent, in consultation with the Borrowers.
“IDR Reference Bank Rate” means the arithmetic mean of the rates (expressed as a percentage per annum and rounded upwards, if necessary, to the nearest five decimal places) as supplied to the Administrative Agent at its request by each IDR Reference Bank, as the rate at which such IDR Reference Bank could borrow funds in the Jakarta interbank market in Indonesian Rupiah and for the relevant Interest Period, were it to do so by requesting and accepting interbank offers for deposits in reasonable market size in Indonesian Rupiah for such Interest Period.
“IDR Revolving Credit Advance” has the meaning specified in Section 2.01(a)(v).
“IDR Revolving Credit Commitment” means, (a) with respect to any Lender at any time, the amount set forth opposite such Lender’s name on Schedule I hereto under the caption “IDR Revolving Credit Commitment” or (b) if such Lender has entered into one or more Assignment and Acceptances or Lender Accession Agreements, set forth for such Lender in the Register maintained by the Administrative Agent pursuant to Section 9.07(d) as such Lender’s “IDR Revolving Credit Commitment”, as such amount may be reduced at or prior to such time pursuant to Section 2.05 or 2.19 or increased pursuant to Section 2.18 or 2.19.
“IDR Revolving Credit Pro Rata Share” of any amount means, with respect to any Lender at any time, the product of such amount times a fraction the numerator of which is the amount of such Lender’s IDR Revolving Credit Commitment at such time (or, if the Commitments shall have been
terminated pursuant to Section 2.05 or 6.01, such Lender’s Facility Exposure with respect to the IDR Revolving Credit Tranche at such time) and the denominator of which is the IDR Revolving Credit Tranche at such time (or, if the Commitments shall have been terminated pursuant to Section 2.05 or 6.01, the total Facility Exposure with respect to the IDR Revolving Credit Tranche at such time).
“IDR Revolving Credit Tranche” means, at any time, the aggregate amount of the Lenders’ IDR Revolving Credit Commitments at such time.
“IDR Revolving Lender” means any Person that is a Lender hereunder in respect of the IDR Revolving Credit Tranche in its capacity as a Lender in respect of such Tranche.
“IDR Tranche Lending Office” means, with respect to any Lender Party, the office of such Lender Party specified as its “IDR Tranche Lending Office” opposite its name on Schedule I hereto or in the Assignment and Acceptance or Lender Accession Agreement pursuant to which it became a Lender Party, or such other office of such Lender Party as such Lender Party may from time to time specify to the Borrowers and the Administrative Agent.
“Immaterial Subsidiary” means a Subsidiary of the Parent Guarantor or the Operating Partnership that has total assets with a gross book value of less than $500,000 in the aggregate; provided, however, that only such Subsidiaries having total assets with a gross book value of not more than $10,000,000 in the aggregate may qualify as Immaterial Subsidiaries hereunder at any one time, and any other Subsidiaries that would otherwise have qualified as Immaterial Subsidiaries at such time shall be excluded from this definition.
“Increase Date” has the meaning specified in Section 2.18(a).
“Increase Funding Deadline” means (a) 3:00 P.M. (New York City time) on the Increase Date where the U.S. Dollar Revolving Credit Tranche is the increasing Tranche, (b) 10:00 A.M. (London time) on the Increase Date where the Multicurrency Revolving Credit Tranche is the increasing Tranche and the applicable Advances are denominated in Sterling, (c) 1:00 P.M. (London time) on the Increase Date where the Multicurrency Revolving Credit Tranche is the increasing Tranche and the applicable Advances are denominated in Canadian Dollars, (d) 10:00 A.M. (London time) on the Increase Date where the Multicurrency Revolving Credit Tranche is the increasing Tranche and the applicable Advances are denominated in Dollars, (e) 10:00 A.M. (London time) on the Increase Date where the Multicurrency Revolving Credit Tranche is the increasing Tranche and the applicable Advances are denominated in Euros, (f) 1:00 P.M. (London time) on the Business Day immediately prior to the Increase Date where the Multicurrency Revolving Credit Tranche is the increasing Tranche and the applicable Advances are denominated in Yen, (g) 10:00 A.M. (London time) on the Increase Date where the Multicurrency Revolving Credit Tranche is the increasing Tranche and the applicable Advances are denominated in Swiss Francs, (h) 8:00 A.M. (Hong Kong time) on the Increase Date where the Australian Dollar Revolving Credit Tranche is the increasing Tranche and the applicable Advances are denominated in Australian Dollars, (i) 12:00 P.M. (Hong Kong time) on the Increase Date where the Australian Dollar Revolving Credit Tranche is the increasing Tranche and the applicable Advances are denominated in Dollars, (j) 9:00 A.M. (Hong Kong time) on the Increase Date where the Australian Dollar Revolving Credit Tranche is the increasing Tranche and the applicable Advances are denominated in Sterling or Euro, (k) 12:00 P.M. (Hong Kong time) on the Business Day immediately prior to the Increase Date where the Singapore Dollar Revolving Credit Tranche is the increasing Tranche and the applicable Advances are denominated in Singapore Dollars, (l) 12:00 P.M. (Hong Kong time) on the Increase Date where the Singapore Dollar Revolving Credit Tranche is the increasing Tranche and the applicable Advances are denominated in Hong Kong Dollars, (m) 10:00 A.M. (Hong Kong time) on the Increase Date where the IDR Revolving Credit Tranche is the increasing Tranche, (n) 9:00 A.M. (Hong Kong time) on the Increase Date where the KRW-A Revolving Credit Tranche or the KRW-B Revolving Credit Tranche is the increasing Tranche, and (o) the time or times set forth in the applicable Supplemental Addendum where any Supplemental Tranche is the increasing Tranche.
“Increase Minimum” means (a) $3,000,000 in the case of the U.S. Dollar Revolving Credit Tranche, (b) $3,000,000 in the case of the Multicurrency Revolving Credit Tranche, (c) A$3,000,000 in the case of the Australian Dollar Revolving Credit Tranche, (d) S$3,000,000 in the case of the Singapore Dollar Revolving Credit Tranche, (e) IDR30,000,000,000 in the case of the IDR Revolving Credit Tranche, (f) KRW3,000,000,000 in the case of the KRW-A Revolving Credit Tranche and the KRW-B Revolving Credit Tranche, and (g) and the Equivalent of $3,000,000 in the case of any Supplemental Tranche.
“Increase Purchasing Lender” has the meaning specified in Section 2.18(e).
“Increase Selling Lender” has the meaning specified in Section 2.18(e).
“Increasing Lender” has the meaning specified in Section 2.18(b).
“Increasing Subfacility” has the meaning specified in Section 2.19(a).
“Increasing Tranche” has the meaning specified in Section 2.19(a).
“Incremental Term Loan Amendment” has the meaning specified in Section 2.18(g).
“Incremental Term Loan Date” has the meaning specified in the definition of Incremental Term Loan Facility.
“Incremental Term Loan Facility” means an incremental term loan (which may be in the form of a delayed draw term loan) made available to one or more of the Borrowers by the existing Lenders and/or third party financial institutions reasonably acceptable to the Administrative Agent in connection with such Borrowers’ request made in accordance with Section 2.18, to be effective as of an Increase Date that is prior to the scheduled Termination Date then in effect (such Increase Date, the “Incremental Term Loan Date”) as specified in the related notice to the Administrative Agent.
“Indemnified Costs” has the meaning specified in Section 8.05(a).
“Indemnified Party” has the meaning specified in Section 7.06.
“Indemnified Taxes” has the meaning specified in Section 2.12(a).
“Indirect Tax” means any goods and services tax, consumption tax, value added tax or any tax of a similar nature.
“Indonesian Language Law” has the meaning specified in Section 5.02(m).
“Indonesian Rupiah”, “Rp” and “IDR” each means the lawful currency of the Republic of Indonesia.
“Information Memorandum” means the information memorandum dated June 2024 used by the Arrangers in connection with the syndication of the Commitments.
“Initial Australia Borrower 1” has the meaning specified in the recital of parties to this Agreement.
“Initial Australia Borrower 2” has the meaning specified in the recital of parties to this Agreement.
“Initial Extension of Credit” means the earlier to occur of the initial Borrowing and the initial issuance of a Letter of Credit hereunder.
“Initial Indonesia Borrower” has the meaning specified in the recital of parties to this Agreement.
“Initial Korea Borrower 1” has the meaning specified in the recital of parties to this Agreement.
“Initial Korea Borrower 2” has the meaning specified in the recital of parties to this Agreement.
“Initial Lenders” has the meaning specified in the recital of parties to this Agreement.
“Initial Multicurrency Borrower 1” has the meaning specified in the recital of parties to this Agreement.
“Initial Multicurrency Borrower 2” has the meaning specified in the recital of parties to this Agreement.
“Initial Multicurrency Borrower 3” has the meaning specified in the recital of parties to this Agreement.
“Initial Multicurrency Borrower 4” has the meaning specified in the recital of parties to this Agreement.
“Initial Multicurrency Borrower 5” has the meaning specified in the recital of parties to this Agreement.
“Initial Process Agent” has the meaning specified in Section 9.14(c).
“Initial Singapore Borrower 1” has the meaning specified in the recital of parties to this Agreement.
“Initial Singapore Borrower 2” has the meaning specified in the recital of parties to this Agreement.
“Initial Singapore Borrower 3” has the meaning specified in the recital of parties to this Agreement.
“Initial Singapore Borrower 4” has the meaning specified in the recital of parties to this Agreement.
“Initial Singapore Borrower 5” has the meaning specified in the recital of parties to this Agreement.
“Insufficiency” means, with respect to any Plan, the amount, if any, of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA, but utilizing the actuarial assumptions used in such Plan’s most recent valuation report.
“Interest Period” means (a) for each Floating Rate Advance (other than a Swing Line Advance) comprising part of the same Borrowing, the period commencing on (and including) the date of such Floating Rate Advance or the date of the Conversion of any Base Rate Advance into a Floating Rate Advance, and ending on (but excluding) the last day of the period selected by the applicable Borrower pursuant to the provisions below and, thereafter, each subsequent period commencing on (and including) the last day of the immediately preceding Interest Period and ending on (but excluding) the last day of the period selected by the applicable Borrower pursuant to the provisions below. For the avoidance of doubt, each Interest Period subsequent to the initial Interest Period for a Floating Rate Advance shall be of the same duration as the initial Interest Period for such Floating Rate Advance selected by the applicable Borrower. The duration of each such Interest Period shall be one, three or six months (or if in each case approved by the Administrative Agent and available from each applicable Lender, twelve months or any number of days less than one month), as the applicable Borrower may, upon notice received by the Administrative Agent not later than the Interest Period Notice Deadline, select; provided, however, that:
(i)no Borrower may select any Interest Period with respect to any Floating Rate Advance that ends after the Termination Date;
(ii)Interest Periods commencing on the same date for Floating Rate Advances comprising part of the same Borrowing shall be of the same duration;
(iii)whenever the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall be extended to occur on the next succeeding Business Day; provided, however, that if such extension would cause the last day of such Interest Period to occur in the next following calendar month, the last day of such Interest Period shall occur on the next preceding Business Day;
(iv)whenever the first day of any Interest Period occurs on a day of an initial calendar month for which there is no numerically corresponding day in the calendar month that succeeds such initial calendar month by the number of months equal to the number of months in such Interest Period, such Interest Period shall end on the last Business Day of such succeeding calendar month;
(v)the applicable Borrower shall not have the right to elect any Interest Period if an Event of Default has occurred and is continuing and, subject to Section 2.09(b)(iii), for the period that such Event of Default is continuing, successive Interest Periods shall be one month in duration;
(vi)with respect to the IDR Revolving Credit Tranche, the Singapore Dollar Revolving Credit Tranche, the KRW-A Revolving Credit Tranche and the KRW-B Revolving Credit Tranche, whenever the first day of any Interest Period occurs on the last Business Day of a calendar month, such Interest Period shall end on the last Business Day of the applicable calendar month in which the Interest Period is scheduled to end;
(vii)with respect to Advances in Canadian Dollars bearing interest at Adjusted Term CORRA, six-month interest periods shall not be available; and
(viii)no tenor that has been removed from this definition pursuant to Section 2.07(f)(v) shall be permitted to be elected for such Advance; and
(b)for each Swing Line Advance, the period commencing on the date of such Swing Line Advance and ending on the maturity date of such Swing Line Advance specified in the Notice of Swing Line Borrowing; provided, however, that (i) no Interest Period shall end after the Termination Date and (ii) whenever the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall be extended to occur on the next succeeding Business Day; provided, however, that if such extension would cause the last day of such Interest Period to occur in the next following calendar month, the last day of such Interest Period shall occur on the next preceding Business Day.
“Interest Period Notice Deadline” means (a) 12:00 P.M. (New York City time) on the third Business Day prior to the first day of the applicable Interest Period in the case of Revolving Credit Advances under the U.S. Dollar Revolving Credit Tranche, (b) 12:00 P.M. (London time) on the third Business Day prior to the first day of the applicable Interest Period in the case of Revolving Credit Advances under the Multicurrency Revolving Credit Tranche, (c) 12:00 P.M. (Hong Kong time) on the third Business Day prior to the first day of the applicable Interest Period in the case of Revolving Credit Advances under the Singapore Dollar Revolving Credit Tranche, (d) 12:00 P.M. (Hong Kong time) on the third Business Day prior to the first day of the applicable Interest Period in the case of Revolving Credit Advances under the Australian Dollar Revolving Credit Tranche, (e) 12:00 P.M. (Hong Kong time) on the third Business Day prior to the first day of the applicable Interest Period in the case of Revolving Credit Advances under the IDR Revolving Credit Tranche, (f) 10:00 A.M. (Hong Kong time) on the third Business Day prior to the first day of the applicable Interest Period in the case of Revolving Credit Advances under the KRW-A Revolving Credit Tranche and the KRW-B Revolving Credit
Tranche, and (g) the deadline set forth in the Supplemental Addendum with respect to each Supplemental Tranche.
“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder.
“Interpolated Screen Rate” means, in relation to any Floating Rate Advance for any Interest Period for which the Floating Rate is to be based on an Applicable Screen Rate, the rate (rounded off to two (2) decimal places) which results from interpolating on a linear basis between:
(a)the Applicable Screen Rate for the longest period (for which such Applicable Screen Rate is available) which is less than the Interest Period; and
(b)the Applicable Screen Rate for the shortest period (for which such Applicable Screen Rate is available) which exceeds the Interest Period,
each at (i) with respect to any Floating Rate Advance that is denominated in any Committed Foreign Currency (other than Euro or IDR), 11:00 A.M. (London time) two Business Days before the first day of such Interest Period, (ii) intentionally omitted, (iii) with respect to any Floating Rate Advance that is denominated in Euro, 10:00 A.M. (London time) two Business Days before the first day of such Interest Period or (iv) with respect to any Floating Rate Advance that is denominated in IDR, 11:00 A.M. (Jakarta time) on the applicable Quotation Day.
“Investment” in any Person means any loan or advance to such Person, any purchase or other acquisition of any Equity Interests or Debt or the assets comprising a division or business unit or a substantial part or all of the business of such Person, any capital contribution to such Person or any other direct or indirect investment in such Person, including, without limitation, any acquisition by way of a merger or consolidation and any arrangement pursuant to which the investor incurs Debt of the types referred to in clause (i) or (j) of the definition of “Debt” in respect of such Person.
“ISP” has the meaning specified in Section 2.03(g).
“Issuer Documents” means, with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the applicable Issuing Bank and the applicable Borrower or in favor of such Issuing Bank and relating to such Letter of Credit.
“Issuing Bank” means an Australian Issuing Bank, a Singapore Issuing Bank, a U.S. Dollar Issuing Bank, an IDR Issuing Bank, a KRW-A Issuing Bank, a KRW-B Issuing Bank or a Multicurrency Issuing Bank, as applicable.
“Jakarta Screen Rate” means (i) the Jakarta interbank money market rate for Rupiah as published by Reuters on Reuters screen page “JIBOR”, which is administered by Bank Indonesia and displayed on the relevant page of the official Bank Indonesia website on the applicable Quotation Date or (ii) if such page or service is replaced or ceases to be available, such page or service displaying the relevant rate as is determined by the Administrative Agent after consultation with the Borrowers and the IDR Revolving Lenders in accordance with Section 2.07(f).
“JIBOR Rate” means, in relation to any Advance denominated in Indonesian Rupiah, (i) the Jakarta Screen Rate as determined by the Administrative Agent from time to time at approximately 10:00 A.M. (Jakarta time) on the applicable Quotation Day or, (ii) if the Jakarta Screen Rate is not available for the applicable Interest Period but is available for other Interest Periods with respect to any such Advance, then the rate shall be the Interpolated Screen Rate or (iii) if no such rate is available, the IDR Reference Bank Rate, as of 10:00 A.M. (Jakarta time) on the Quotation Day for which an interest rate is to be determined for the offering of deposits in IDR and for a period equal in length to the Interest Period for such Advance. Notwithstanding anything to the contrary in this Agreement, in no event shall the JIBOR Rate be less than the Floor for any Advance that has not been identified by the Borrowers to the Administrative Agent as being subject to a Hedge Agreement.
“JPMCB” has the meaning specified in the recital of parties to this Agreement.
“JTC” means Jurong Town Corporation, a body corporate incorporated under the Jurong Town Corporation Act 1968 of Singapore.
“JTC Property” means an Asset located in Singapore that is ground leased from the JTC.
“JV Pro Rata Share” means, with respect to any Unconsolidated Affiliate at any time, the fraction, expressed as a percentage, obtained by dividing (a) the total book value in accordance with GAAP (but determined without giving effect to any depreciation) of all Equity Interests in such Unconsolidated Affiliate held by the Parent Guarantor and any of its Subsidiaries by (b) the total book value in accordance with GAAP (but determined without giving effect to any depreciation) of all outstanding Equity Interests in such Unconsolidated Affiliate at such time.
“Korean Capital Expenditures” means (i) in relation to the Initial Korea Borrower 1, the costs and expenses to be incurred by it to build out and construct a new data center facility on a land parcel located in Sangam-dong, Seoul, Korea acquired by the Initial Korea Borrower 1 for development of such facility, including, without limitation, all properly documented construction costs and equipment costs, but excluding the acquisition costs of such land and (ii) in relation to the Initial Korea Borrower 2, the costs and expenses to be incurred by it to build out and construct a new data center facility on a land parcel located in Gimpo City of Korea acquired by the Initial Korea Borrower 2 for development of such facility, including, without limitation, all properly documented construction costs and equipment costs, but excluding the acquisition costs of the land.
“Korean Capital Expenditures Documentation” means, with respect to any Borrowing under the KRW-B Revolving Credit Tranche, such documentation as is required by applicable Korean law including any applicable contracts for work, lists of expenses by contract, construction permits, sales contracts and appraisal reports.
“Korean Won”, “KRW” and “Won” each means the lawful currency of Korea.
“Korean Working Capital” means, with respect to a KRW-A Borrower, working capital required for the normal business activities of such KRW-A Borrower.
“KPI Metric Auditor” means DNV Group; provided, however, that the Operating Partnership may from time to time designate any independent global or country-specific provider of environmental, social, and governance reporting assurance services reasonably acceptable to the Co-Sustainability Structuring Agents as a replacement KPI Metric Auditor; provided further that the KPI Metric Auditor shall apply substantially the same auditing standards and methodology as described in the “Independent Assurance Statement” dated June 21, 2024 provided by DNV Group and published in the Operating Partnership’s 2023 Environmental, Social and Governance Report, the International Standard on Assurance Engagements 3000 or such other standards and methodology that (i) are consistent with then generally accepted industry standards or (ii) if not so consistent, are proposed by the Operating Partnership and reasonably acceptable to the Co-Sustainability Structuring Agents.
“KPI Metric Report” means a report that may take the form of any non-financial disclosure of the Operating Partnership and its Subsidiaries’ performance with respect to Certified Capacity as publicly reported by the Operating Partnership for a specific Annual Period, and published on an Internet or intranet website to which each Lender, the Administrative Agent and the Co-Sustainability Structuring Agents have been granted access free of charge (or at the expense of the Borrowers). Such KPI Metric Report shall be audited by the KPI Metric Auditor.
“KRW-A Borrowers” means the Initial Korea Borrower 1 and each Additional Borrower that is designated as a Borrower with respect to the KRW-A Revolving Credit Tranche, the KRW-A Swing Line Facility or the KRW-A Letter of Credit Facility.
“KRW-A Issuing Bank” means Citibank, N.A. (or any Affiliate thereof), and any other Lender that is approved as a KRW-A Issuing Bank by the Administrative Agent and the Operating Partnership and any Eligible Assignee to which a KRW-A Letter of Credit Commitment hereunder has been assigned pursuant to Section 9.07 so long as each such Lender or each such Eligible Assignee expressly agrees to perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a KRW-A Issuing Bank and notifies the Administrative Agent of its Applicable Lending Office and the amount of its KRW-A Letter of Credit Commitment (which information shall be recorded by the Administrative Agent in the Register) for so long as such initial KRW-A Issuing Bank, Lender or Eligible Assignee, as the case may be, shall have a KRW-A Letter of Credit Commitment.
“KRW-A Lender Party” means any KRW-A Revolving Lender, the Swing Line Bank under the KRW-A Swing Line Facility or a KRW-A Issuing Bank.
“KRW-A Letter of Credit Commitment” means, with respect to any KRW-A Issuing Bank at any time, the amount set forth opposite such KRW-A Issuing Bank’s name on Schedule I hereto under the caption “KRW-A Letter of Credit Commitment” or, if such KRW-A Issuing Bank has entered into one or more Assignment and Acceptances, set forth for such KRW-A Issuing Bank in the Register maintained by the Administrative Agent pursuant to Section 9.07(d) as such KRW-A Issuing Bank’s “KRW-A Letter of Credit Commitment”, as such amount may be reduced at or prior to such time pursuant to Section 2.05 or 2.19 or increased pursuant to Section 2.19.
“KRW-A Letter of Credit Facility” means, at any time, an amount equal to the lesser of (a) the aggregate amount of the KRW-A Issuing Banks’ KRW-A Letter of Credit Commitments at such time, and (b) KRW17,700,000,000, as such amount may be reduced at or prior to such time pursuant to Section 2.05. The KRW-A Letter of Credit Facility shall be a Subfacility of the KRW-A Revolving Credit Tranche.
“KRW-A Letters of Credit” has the meaning specified in Section 2.01(b)(iv)(A).
“KRW-A Revolving Credit Advance” has the meaning specified in Section 2.01(a)(vi)(A).
“KRW-A Revolving Credit Commitment” means, (a) with respect to any Lender at any time, the amount set forth opposite such Lender’s name on Schedule I hereto under the caption “KRW-A Revolving Credit Commitment” or (b) if such Lender has entered into one or more Assignment and Acceptances or Lender Accession Agreements, set forth for such Lender in the Register maintained by the Administrative Agent pursuant to Section 9.07(d) as such Lender’s “KRW-A Revolving Credit Commitment”, as such amount may be reduced at or prior to such time pursuant to Section 2.05 or 2.19 or increased pursuant to Section 2.18 or 2.19.
“KRW-A Revolving Credit Pro Rata Share” of any amount means, with respect to any Lender at any time, the product of such amount times a fraction the numerator of which is the amount of such Lender’s KRW-A Revolving Credit Commitment at such time (or, if the Commitments shall have been terminated pursuant to Section 2.05 or 6.01, such Lender’s Facility Exposure with respect to the KRW-A Revolving Credit Tranche at such time) and the denominator of which is the KRW-A Revolving Credit Tranche at such time (or, if the Commitments shall have been terminated pursuant to Section 2.05 or 6.01, the total Facility Exposure with respect to the KRW-A Revolving Credit Tranche at such time).
“KRW-A Revolving Credit Tranche” means, at any time, the aggregate amount of the Lenders’ KRW-A Revolving Credit Commitments at such time.
“KRW-A Revolving Lender” means any Person that is a Lender hereunder in respect of the KRW-A Revolving Credit Tranche in its capacity as a Lender in respect of such Tranche.
“KRW-A Swing Line Facility” means, at any time, an amount equal to the lesser of (a) the aggregate amount of the Swing Line Commitments relating to the KRW denominated Swing Line Facility
with respect to the KRW-A Revolving Credit Tranche at such time, and (b) KRW10,000,000,000, as such amount may be reduced at or prior to such time pursuant to Section 2.05. The KRW-A Swing Line Facility shall be a Subfacility of the KRW-A Revolving Credit Tranche.
“KRW-B Borrowers” means the Initial Korea Borrower 1, the Initial Korea Borrower 2 and each Additional Borrower that is designated as a Borrower with respect to the KRW-B Revolving Credit Tranche, the KRW-B Swing Line Facility or the KRW-B Letter of Credit Facility.
“KRW-B Issuing Bank” means Citibank, N.A. (or any Affiliate thereof), and any other Lender that is approved as a KRW-B Issuing Bank by the Administrative Agent and the Operating Partnership and any Eligible Assignee to which a KRW-B Letter of Credit Commitment hereunder has been assigned pursuant to Section 9.07 so long as each such Lender or each such Eligible Assignee expressly agrees to perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a KRW-B Issuing Bank and notifies the Administrative Agent of its Applicable Lending Office and the amount of its KRW-B Letter of Credit Commitment (which information shall be recorded by the Administrative Agent in the Register) for so long as such initial KRW-B Issuing Bank, Lender or Eligible Assignee, as the case may be, shall have a KRW-B Letter of Credit Commitment.
“KRW-B Lender Party” means any KRW-B Revolving Lender, the Swing Line Bank under the KRW-B Swing Line Facility or a KRW-B Issuing Bank.
“KRW-B Letter of Credit Commitment” means, with respect to any KRW-B Issuing Bank at any time, the amount set forth opposite such KRW-B Issuing Bank’s name on Schedule I hereto under the caption “KRW-B Letter of Credit Commitment” or, if such KRW-B Issuing Bank has entered into one or more Assignment and Acceptances, set forth for such KRW-B Issuing Bank in the Register maintained by the Administrative Agent pursuant to Section 9.07(d) as such KRW-B Issuing Bank’s “KRW-B Letter of Credit Commitment”, as such amount may be reduced at or prior to such time pursuant to Section 2.05 or 2.19 or increased pursuant to Section 2.19.
“KRW-B Letter of Credit Facility” means, at any time, an amount equal to the lesser of (a) the aggregate amount of the KRW-B Issuing Banks’ KRW-B Letter of Credit Commitments at such time, and (b) KRW11,800,800,000, as such amount may be reduced at or prior to such time pursuant to Section 2.05. The KRW-B Letter of Credit Facility shall be a Subfacility of the KRW-B Revolving Credit Tranche.
“KRW-B Letters of Credit” has the meaning specified in Section 2.01(b)(iv)(B).
“KRW-B Revolving Credit Advance” has the meaning specified in Section 2.01(a)(vi)(B).
“KRW-B Revolving Credit Commitment” means, (a) with respect to any Lender at any time, the amount set forth opposite such Lender’s name on Schedule I hereto under the caption “KRW-B Revolving Credit Commitment” or (b) if such Lender has entered into one or more Assignment and Acceptances or Lender Accession Agreements, set forth for such Lender in the Register maintained by the Administrative Agent pursuant to Section 9.07(d) as such Lender’s “KRW-B Revolving Credit Commitment”, as such amount may be reduced at or prior to such time pursuant to Section 2.05 or 2.19 or increased pursuant to Section 2.18 or 2.19.
“KRW-B Revolving Credit Pro Rata Share” of any amount means, with respect to any Lender at any time, the product of such amount times a fraction the numerator of which is the amount of such Lender’s KRW-B Revolving Credit Commitment at such time (or, if the Commitments shall have been terminated pursuant to Section 2.05 or 6.01, such Lender’s Facility Exposure with respect to the KRW-B Revolving Credit Tranche at such time) and the denominator of which is the KRW-B Revolving Credit Tranche at such time (or, if the Commitments shall have been terminated pursuant to Section 2.05 or 6.01, the total Facility Exposure with respect to the KRW-B Revolving Credit Tranche at such time).
“KRW-B Revolving Credit Tranche” means, at any time, the aggregate amount of the Lenders’ KRW-B Revolving Credit Commitments at such time.
“KRW-B Revolving Lender” means any Person that is a Lender hereunder in respect of the KRW-B Revolving Credit Tranche in its capacity as a Lender in respect of such Tranche.
“KRW-B Swing Line Facility” means, at any time, an amount equal to the lesser of (a) the aggregate amount of the Swing Line Commitments relating to the KRW denominated Swing Line Facility with respect to the KRW-B Revolving Credit Tranche at such time, and (b) KRW9,440,640,000, as such amount may be reduced at or prior to such time pursuant to Section 2.05. The KRW-B Swing Line Facility shall be a Subfacility of the KRW-B Revolving Credit Tranche.
“KRW Tranche Lending Office” means, with respect to any Lender Party, the office of such Lender Party specified as its “KRW Tranche Lending Office” opposite its name on Schedule I hereto or in the Assignment and Acceptance or Lender Accession Agreement pursuant to which it became a Lender Party, or such other office of such Lender Party as such Lender Party may from time to time specify to the Borrowers and the Administrative Agent.
“L/C Account Collateral” has the meaning specified in Section 2.17(a).
“L/C Cash Collateral Account” means the account of the Borrowers to be maintained with the Administrative Agent, in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agent and subject to the terms of this Agreement.
“L/C Purchasing Notice Deadline” means (a) 11:00 A.M. (New York City time) on the proposed funding date by Lenders in the case of the U.S. Dollar Letter of Credit Facility, (b) 11:00 A.M. (Hong Kong time) three Business Days prior to the proposed funding date by Lenders in the case of the Singapore Letter of Credit Facility, (c) 11:00 A.M. (London time) three Business Days prior to the proposed funding date by Lenders in the case of the Multicurrency Letter of Credit Facility, (d) 11:00 A.M. (Hong Kong time) three Business Days prior to the proposed funding date by Lenders in the case of the Australian Letter of Credit Facility, (e) 11:00 A.M. (Hong Kong time) three Business Days prior to the proposed funding date by Lenders in the case of the IDR Letter of Credit Facility and (f) 11:00 A.M. (Hong Kong time) three Business Days prior to the proposed funding date by Lenders in the case of the KRW-A Letter of Credit Facility and the KRW-B Letter of Credit Facility.
“L/C Related Documents” has the meaning specified in Section 2.04(c)(ii)(A).
“Leased Asset” means a Technology Asset that is leased by the Operating Partnership or a Subsidiary thereof pursuant to a lease (other than a ground lease) with a remaining term (including any unexercised extension options at the option of the tenant) of not less than 10 years from the date of determination and otherwise on market terms; provided, however, that the Administrative Agent may approve any Technology Asset that is subject to a lease with a remaining term (including any unexercised extension options at the option of the tenant) of less than 10 years but equal to or more than 5 years from the date of determination (any such Leased Asset, a “Short-Term Leased Asset”) and the Administrative Agent agrees that the Leases listed on Schedule VII are approved Short-Term Leased Assets.
“Lender Accession Agreement” has the meaning specified in Section 2.18(d)(i).
“Lender Insolvency Event” means that (i) a Lender or its Parent Company is insolvent, or is generally unable to pay its debts as they become due, or admits in writing its inability to pay its debts as they become due, or makes a general assignment for the benefit of its creditors, or (ii) such Lender or its Parent Company is the subject, other than via an Undisclosed Administration, of a bankruptcy, insolvency, reorganization, liquidation or similar proceeding, or a receiver, trustee, conservator, intervenor or sequestrator or the like has been appointed for such Lender or its Parent Company, or such Lender or its Parent Company has taken any action in furtherance of or indicating its consent to or
acquiescence in any such proceeding or appointment, or (iii) such Lender or its Parent Company has become the subject of a Bail-in Action.
“Lender Party” means any Lender, any Swing Line Bank or any Issuing Bank.
“Lenders” means (a) the Initial Lenders, (b) each Acceding Lender that shall become a party hereto pursuant to Section 2.18 or 2.19, and (c) each Person that shall become a Lender hereunder pursuant to Section 9.07 in each case for so long as such Initial Lender, Acceding Lender or Person, as the case may be, shall be a party to this Agreement.
“Letter of Credit Advance” means an advance made by any Issuing Bank or any Lender pursuant to Section 2.03(c).
“Letter of Credit Agreement” has the meaning specified in Section 2.03(a).
“Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the applicable Issuing Bank.
“Letter of Credit Commitment” means, with respect to any Issuing Bank at any time, the amount set forth opposite such Issuing Bank’s name on Schedule I hereto under the caption “Letter of Credit Commitment” or, if such Issuing Bank has entered into one or more Assignment and Acceptances, set forth for such Issuing Bank in the Register maintained by the Administrative Agent pursuant to Section 9.07(d) as such Issuing Bank’s “Letter of Credit Commitment”, as such amount may be reduced at or prior to such time pursuant to Section 2.05.
“Letter of Credit Facility” means the Australian Letter of Credit Facility, the Singapore Letter of Credit Facility, U.S. Dollar Letter of Credit Facility, the IDR Letter of Credit Facility, the KRW-A Letter of Credit Facility, the KRW-B Letter of Credit Facility, and the Multicurrency Letter of Credit Facility.
“Letter of Credit Fee” has the meaning set forth in Section 2.08(b)(i).
“Letters of Credit” means the Australian Letters of Credit, the Singapore Letters of Credit, the U.S. Dollar Letters of Credit, the IDR Letters of Credit, the KRW-A Letters of Credit, the KRW-B Letters of Credit and the Multicurrency Letters of Credit.
“Leverage Ratio” means, at any date of determination, the ratio, expressed as a percentage, of (a) Consolidated Debt of the Parent Guarantor and its Subsidiaries to (b) Total Asset Value, in each case as at the end of the most recently ended fiscal quarter of the Parent Guarantor for which financial statements are required to be delivered to the Administrative Agent pursuant to Section 5.03(b) or (d), as the case may be.
“Lien” means any lien, security interest or other charge or encumbrance of any kind, or any other type of preferential arrangement, including, without limitation, the lien or retained security title of a conditional vendor, any easement, right of way or other encumbrance on title to real property, and, in relation to Dutch law, any mortgage (hypotheek), pledge (pandrecht), retention of title arrangement (eigendomsvoorbehoud), privilege (voorrecht), right of retention (recht van retentie), right to reclaim goods (recht van reclame), and, in general, any right in rem (beperkt recht), created for the purpose of granting security (goederenrechtelijk zekerheidsrecht).
“Loan Documents” means (a) this Agreement (including the schedules and exhibits hereto), (b) the Notes, (c) each Borrower Accession Agreement, (d) the Fee Letter, (e) each Letter of Credit Agreement, (f) each Guaranty Supplement, (g) each Supplemental Addendum, (h) each Guaranteed Hedge Agreement, (i) each Loan Modification Agreement and (j) each other document or instrument now or hereafter executed and delivered by a Loan Party in connection with, pursuant to or relating to this Agreement, in each case, as amended.
“Loan Modification Agreement” has the meaning specified in Section 9.01(c).
“Loan Modification Offer” has the meaning specified in Section 9.01(c).
“Loan Parties” means the Borrowers and the Guarantors.
“Management Determination” has the meaning specified in Section 7.09(g).
“Mandatorily Redeemable Stock” means, with respect to any Person, any Equity Interest of such Person which by the terms of such Equity Interest (or by the terms of any security into which it is convertible or for which it is exchangeable or exercisable), upon the happening of any event or otherwise, (a) matures or is mandatorily redeemable (except as a result of a change of control or asset sale so long as any rights of the holder thereof upon the occurrence of any such event shall be subject to the prior payment in full of the Obligations and the termination of the Commitments and the termination or Cash Collateralization of all outstanding Letters of Credit), pursuant to a sinking fund obligation or otherwise (other than an Equity Interest to the extent redeemable in exchange for common stock or other equivalent common Equity Interests at the option of the issuer of such Equity Interest), (b) is convertible into or exchangeable or exercisable for Debt or Mandatorily Redeemable Stock, or (c) is redeemable at the option of the holder thereof, in whole or in part (other than an Equity Interest which is redeemable solely in exchange for common stock or other equivalent common Equity Interests), in the case of each of clauses (a) through (c), on or prior to the scheduled Termination Date then in effect.
“Margin Stock” has the meaning specified in Regulation U.
“Market Disruption Event” means in connection with:
(a)Daily RFR Advances, the Administrative Agent has determined (which determination shall be conclusive and binding absent manifest error) that the Daily Simple RFR with respect to the currency of such Advances cannot be determined pursuant to the definition thereof;
(b)Advances in Australian Dollars, (i) at or about 10:30 A.M. (Sydney time) on the Quotation Day for the relevant Interest Period the average rate published on the Reuters screen BBSW page is not available and the Administrative Agent is unable to determine BBR for the relevant currency and period or (ii) before close of business in Sydney on the Quotation Day for the relevant Interest Period, the Administrative Agent receives notifications from a Lender or Lenders (whose participations in a Borrowing exceed fifty percent (50%) of such Borrowing) that the cost to it of funding its participation in the Borrowing from whatever source it may reasonably select would be in excess of BBR;
(c)Advances in Hong Kong Dollars, (i) at or about 11:00 A.M. (Hong Kong time) on the Quotation Day for the relevant Interest Period the Hong Kong Screen Rate is not available and the Administrative Agent is unable to determine HIBOR for the relevant currency and period or (ii) before close of business in Hong Kong on the Quotation Day for the relevant Interest Period, the Administrative Agent receives notifications from a Lender or Lenders (whose participations in a Borrowing exceed fifty percent (50%) of such Borrowing) that the cost to it of obtaining matching deposits in the Relevant Interbank Market would be in excess of HIBOR;
(d)Term CORRA Advances, on or prior to the first day of any applicable Interest Period, the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that (i) Adjusted Term CORRA or Term CORRA cannot be determined pursuant to the definition thereof, including because the Term CORRA is not available or published on a current basis or (ii) a fundamental change has occurred in the foreign exchange market with respect to such currency (including changes in national or international financial, political or economic conditions or currency exchange rates or exchange controls), or (iii) the applicable Tranche Required Lenders determine that for any reason in connection with any request for a Term CORRA Advance or a continuation thereof that Term CORRA or the Interest Period with respect to a proposed Term CORRA Advance does not adequately and fairly reflect the cost to such Lenders of funding such Advance, and the Tranche Required Lenders have provided notice of such determination to the Administrative Agent;
(e)Advances in Indonesian Rupiah, (i) at or about 10:00 A.M. (Jakarta time) on the Quotation Day for the relevant Interest Period no IDR Reference Bank Rate is available for Indonesian Rupiah and the Administrative Agent is unable to determine JIBOR for the relevant Interest Period or (ii) before close of business in Jakarta on the Quotation Day for the relevant Interest Period the Administrative Agent receives notification(s) from the Tranche Required Lenders for the IDR Revolving Credit Tranche that the cost to such Lender or Lenders of funding its Advances under the IDR Revolving Credit Tranche from the wholesale market for Rupiah would be in excess of JIBOR;
(f)Advances in Korean Won, (i) at or about 4:30 P.M. (Seoul time) on the applicable Quotation Day, the Base CD Rate is not available and in the Administrative Agent’s opinion, adequate and reasonable means do not exist for ascertaining such rate for the relevant Interest Period; or (ii) by reason of circumstances affecting the Korean interbank market generally, before close of business in Seoul on the applicable Quotation Day, the Administrative Agent receives notifications from Tranche Required Lenders for the KRW-A Revolving Credit Tranche or the KRW-B Revolving Credit Tranche that, as a result of adverse circumstances affecting market conditions generally (and not affecting a particular KRW-A Revolving Lender or KRW-B Revolving Lender, as applicable, only (unless such Lender constitutes the Tranche Required Lenders)), the cost to such Lender or Lenders of funding its Advances would be in excess of the Base CD Rate;
(g)Advances in Euro or Yen, on or prior to the first day of any applicable Interest Period, (i) the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that (A) by reason of circumstances affecting the London or other applicable offshore interbank market for the applicable currency, the applicable Eurocurrency Rate cannot be determined pursuant to the definition thereof, including because the Applicable Screen Rate for the applicable currency is not available or published on a current basis or (B) a fundamental change has occurred in the foreign exchange or interbank markets with respect to such currency (including changes in national or international financial, political or economic conditions or currency exchange rates or exchange controls), or (C) the applicable Tranche Required Lenders determine that for any reason in connection with any request for a Eurocurrency Rate Advance or a Conversion thereto or a continuation thereof that (I) deposits in the applicable currency are not being offered to banks in the London or other applicable offshore interbank market for the applicable currency, amount and Interest Period of such Eurocurrency Rate Advance, or (II) the Eurocurrency Rate for any requested currency or Interest Period with respect to a proposed Eurocurrency Rate Advance does not adequately and fairly reflect the cost to such Lenders of funding such Advance, and, in each case, the Tranche Required Lenders have provided notice of such determination to the Administrative Agent;
(h)Term SOFR Advances, on or prior to the first day of any applicable Interest Period, the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that (A) Adjusted Term SOFR or Term SOFR cannot be determined pursuant to the definition thereof, including because the Term SOFR Reference Rate is not available or published on a current basis or (B) a fundamental change has occurred in the foreign exchange market with respect to such currency (including changes in national or international financial, political or economic conditions or currency exchange rates or exchange controls), or (C) the applicable Tranche Required Lenders determine that for any reason in connection with any request for a Term SOFR Advance or a continuation thereof that Term SOFR or the Interest Period with respect to a proposed Term SOFR Advance does not adequately and fairly reflect the cost to such Lenders of funding such Advance, and the Tranche Required Lenders have provided notice of such determination to the Administrative Agent; and
(i)Advances in a Supplemental Currency, (i) at or about 11:00 A.M. (local time) on the Quotation Day for the relevant Interest Period the Applicable Screen Rate is not available and the Administrative Agent is unable to determine the interest rate upon which the applicable Floating Rate is based for the relevant currency and period or (ii) before close of business local time on the Quotation Day for the relevant Interest Period, the Administrative Agent receives notifications from a Lender or Lenders
(whose participations in a Borrowing exceed fifty percent (50%) of such Borrowing) that the cost to it of obtaining matching deposits in the Relevant Interbank Market would be in excess of the interest rate upon which the applicable Floating Rate is based.
“Material Adverse Change” means any material adverse change in the business or financial condition of the Parent Guarantor and its Subsidiaries taken as a whole.
“Material Adverse Effect” means a material adverse effect on (a) the business or financial condition of the Parent Guarantor and its Subsidiaries taken as a whole, (b) the rights and remedies of the Administrative Agent or any Lender Party under any Loan Document or (c) the ability of any Loan Party to perform its material Obligations under any Loan Document to which it is or is to be a party.
“Material Contract” means each contract to which the Parent Guarantor or any of its Subsidiaries is a party that is material to the business or financial condition of the Parent Guarantor and its Subsidiaries taken as a whole.
“Material Debt” means Recourse Debt of any Loan Party or any Subsidiary of a Loan Party that is outstanding in a principal amount (or, in the case of Debt consisting of a Hedge Agreement which constitutes a liability of the Loan Parties, in the amount of such Hedge Agreement reflected on the Consolidated balance sheet of the Parent Guarantor) of $200,000,000 (or the Equivalent thereof in any foreign currency) or more, either individually or in the aggregate; in each case (a) whether the primary obligation of one or more of the Loan Parties or their respective Subsidiaries, (b) whether the subject of one or more separate debt instruments or agreements, and (c) exclusive of Debt outstanding under this Agreement.
“Maximum Facility Fee Adjustment” has the meaning specified in Section 2.23.
“Maximum Margin Adjustment” has the meaning specified in Section 2.23.
“Maximum Rate” means the maximum non-usurious interest rate under applicable law.
“Maximum Unsecured Debt Percentage” means, on any date of determination, the then applicable percentage set forth in Section 5.04(b)(i).
“Mexican Pesos” or “Pesos” or “Ps$” each means the lawful currency of Mexico.
“Minimum Letter of Credit Commitment” means (a) $10,000,000 in the case of the U.S. Dollar Letter of Credit Facility, (b) $10,000,000 in the case of the Multicurrency Letter of Credit Facility, (c) A$10,000,000 in the case of the Australian Letter of Credit Facility, (d) S$10,000,000 in the case of the Singapore Letter of Credit Facility, (e) IDR100,000,000,000 in the case of the IDR Letter of Credit Facility, and (f) KRW10,000,000,000 in the case of the KRW-A Letter of Credit Facility or the KRW-B Letter of Credit Facility.
“Moody’s” means Moody’s Investors Services, Inc. and any successor thereto.
“Multicurrency Borrower” means the Operating Partnership, the Initial Multicurrency Borrower 1, the Initial Multicurrency Borrower 2, the Initial Multicurrency Borrower 3, the Initial Multicurrency Borrower 4, the Initial Multicurrency Borrower 5, and each Additional Borrower that is designated as a Borrower with respect to the Multicurrency Revolving Credit Tranche or any Subfacility thereunder; provided, however, that only the Initial Multicurrency Borrower 2 shall be permitted to act as the Borrower in respect of any Swing Line Borrowing in Canadian Dollars under the Multicurrency Swing Line Facility.
“Multicurrency Committed Foreign Currencies” means Dollars, Canadian Dollars, Euros, Sterling, Swiss Francs and Yen.
“Multicurrency Issuing Bank” means the Existing Issuing Bank, Citibank, N.A. (or any Affiliate thereof), and any other Lender approved as a Multicurrency Issuing Bank by the Administrative Agent
and the Operating Partnership and any Eligible Assignee to which a Multicurrency Letter of Credit Commitment hereunder has been assigned pursuant to Section 9.07 so long as each such Lender or each such Eligible Assignee expressly agrees to perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Multicurrency Issuing Bank and notifies the Administrative Agent of its Applicable Lending Office and the amount of its Multicurrency Letter of Credit Commitment (which information shall be recorded by the Administrative Agent in the Register) for so long as the Existing Issuing Bank, Citibank, N.A., such Lender or such Eligible Assignee, as the case may be, shall have a Multicurrency Letter of Credit Commitment.
“Multicurrency Lender Party” means any Multicurrency Revolving Lender, the Swing Line Bank under the Multicurrency Swing Line Facility or a Multicurrency Issuing Bank.
“Multicurrency Letter of Credit Commitment” means, with respect to any Multicurrency Issuing Bank at any time, the amount set forth opposite such Multicurrency Issuing Bank’s name on Schedule I hereto under the caption “Multicurrency Letter of Credit Commitment” or, if such Multicurrency Issuing Bank has entered into one or more Assignment and Acceptances, set forth for such Multicurrency Issuing Bank in the Register maintained by the Administrative Agent pursuant to Section 9.07(d) as such Multicurrency Issuing Bank’s “Multicurrency Letter of Credit Commitment”, as such amount may be reduced at or prior to such time pursuant to Section 2.05 or 2.19 or increased pursuant to Section 2.19.
“Multicurrency Letter of Credit Facility” means, at any time, an amount equal to the lesser of (a) the aggregate amount of the Multicurrency Issuing Banks’ Letter of Credit Commitments at such time, and (b) $125,000,000 (or the Equivalent thereof in any Multicurrency Committed Foreign Currency), as such amount may be reduced at or prior to such time pursuant to Section 2.05. The Multicurrency Letter of Credit Facility shall be a Subfacility of the Multicurrency Revolving Credit Tranche.
“Multicurrency Letters of Credit” has the meaning specified in Section 2.01(b).
“Multicurrency Revolving Credit Advance” has the meaning specified in Section 2.01(a)(ii).
“Multicurrency Revolving Credit Commitment” means, (a) with respect to any Lender at any time, the amount set forth opposite such Lender’s name on Schedule I hereto under the caption “Multicurrency Revolving Credit Commitment” or (b) if such Lender has entered into one or more Assignment and Acceptances or Lender Accession Agreements, set forth for such Lender in the Register maintained by the Administrative Agent pursuant to Section 9.07(d) as such Lender’s “Multicurrency Revolving Credit Commitment”, as such amount may be reduced at or prior to such time pursuant to Section 2.05 or 2.19 or increased pursuant to Section 2.18 or 2.19.
“Multicurrency Revolving Credit Pro Rata Share” of any amount means, with respect to any Lender at any time, the product of such amount times a fraction the numerator of which is the amount of such Lender’s Multicurrency Revolving Credit Commitment at such time (or, if the Commitments shall have been terminated pursuant to Section 2.05 or 6.01, such Lender’s Facility Exposure with respect to the Multicurrency Revolving Credit Tranche at such time) and the denominator of which is the Multicurrency Revolving Credit Tranche at such time (or, if the Commitments shall have been terminated pursuant to Section 2.05 or 6.01, the total Facility Exposure with respect to the Multicurrency Revolving Credit Tranche at such time).
“Multicurrency Revolving Credit Tranche” means, at any time, the aggregate amount of the Lenders’ Multicurrency Revolving Credit Commitments at such time.
“Multicurrency Revolving Lender” means any Person that is a Lender hereunder in respect of the Multicurrency Revolving Credit Tranche in its capacity as a Lender in respect of such Tranche.
“Multicurrency Swing Line Facility” means, at any time, an amount equal to the lesser of (a) the aggregate amount of the Swing Line Commitments relating to the Euro, Sterling and Canadian Dollar denominated Swing Line Facility at such time, and (b) the Equivalent of $225,000,000 in Euro, Sterling
or Canadian Dollars, as such amount may be reduced at or prior to such time pursuant to Section 2.05. The Multicurrency Swing Line Facility shall be a Subfacility of the Multicurrency Revolving Credit Tranche.
“Multicurrency Tranche Lending Office” means, with respect to any Lender Party, the office of such Lender Party specified as its “Multicurrency Tranche Lending Office” opposite its name on Schedule I hereto or in the Assignment and Acceptance or Lender Accession Agreement pursuant to which it became a Lender Party, or such other office of such Lender Party as such Lender Party may from time to time specify to the Borrowers and the Administrative Agent.
“Multiemployer Plan” means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate is making or accruing an obligation to make contributions, or has within any of the preceding five plan years made or accrued an obligation to make contributions.
“Multiple Employer Plan” means a single employer plan, as defined in Section 4001(a)(15) of ERISA, in which (a) any Loan Party or any ERISA Affiliate and at least one Person other than the Loan Parties and the ERISA Affiliates are contributing sponsors or (b) any Loan Party or any ERISA Affiliate and at least one Person other than the Loan Parties and the ERISA Affiliates were previously contributing sponsors if such Loan Party or ERISA Affiliate would reasonably be expected to have liability under Section 4064 or 4069 of ERISA in the event such plan has been or were to be terminated.
“MW-IT” has the meaning specified in the definition of Certified Capacity.
“Negative Pledge” means, with respect to any asset, any provision of a document, instrument or agreement (other than a Loan Document) which prohibits or purports to prohibit the creation or assumption of any Lien on such asset as security for Obligations under or in respect of the Loan Documents; 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, (b) any provision of any documents governing other senior Unsecured Debt of the Parent Guarantor or the Operating Partnership restricting the ability of any Loan Party to encumber its assets (exclusive of any outright prohibition on the ability of any Loan Party to encumber particular 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, and (c) any change of control or similar restriction set forth in an Unconsolidated Affiliate agreement or in a loan document governing mortgage secured Debt shall not constitute a Negative Pledge.
“Net Agreement Value” means, with respect to all Hedge Agreements, the amount (whether an asset or a liability) of such Hedge Agreements on the Consolidated balance sheet of the Parent Guarantor; provided, however, that if Net Agreement Value would constitute an asset rather than a liability, then Net Agreement Value shall be deemed to be zero.
“Net Assets” has the meaning specified in Section 7.09(g).
“Net Operating Income” means (a) with respect to any Asset other than an Unconsolidated Affiliate Asset, the difference (if positive) between (i) the total rental revenue, tenant reimbursements and other income from the operation of such Asset for the fiscal quarter of the Parent Guarantor most recently ended for which financial statements are required to be delivered to the Administrative Agent pursuant to Section 5.03(b) or (d), as the case may be, and (ii) all expenses and other proper charges incurred by the applicable Loan Party or Subsidiary in connection with the operation and maintenance of such Asset during such fiscal period, including, without limitation, management fees, repairs, real estate and chattel taxes and bad debt expenses, but before payment or provision for debt service charges, income taxes and depreciation, amortization and other non-cash expenses, all as determined in accordance with GAAP, and (b) with respect to any Unconsolidated Affiliate Asset, the difference (if positive) between (i) the JV Pro
Rata Share of the total rental revenue and other income from the operation of such Asset for the fiscal quarter of the Parent Guarantor most recently ended for which financial statements are required to be delivered to the Administrative Agent pursuant to Section 5.03(b) or (d), as the case may be, and (ii) the JV Pro Rata Share of all expenses and other proper charges incurred by the applicable Unconsolidated Affiliate in connection with the operation and maintenance of such Asset during such fiscal period, including, without limitation, management fees, repairs, real estate and chattel taxes and bad debt expenses, but before payment or provision for debt service charges, income taxes and depreciation, amortization and other non-cash expenses, all as determined in accordance with GAAP, provided that in no event shall Net Operating Income for any Asset be less than zero.
“Netherlands” refers to the part of the Kingdom of the Netherlands located in Europe (and all derivate terms, including “Dutch”, shall be construed accordingly).
“Non-Consenting Lender” has the meaning specified in Section 9.01(b).
“Non-Cooperative Jurisdiction” means a “non-cooperative state or territory” (Etat ou territoire non coopératif) as set out in the list referred to in Article 238-0 A of the French tax code (Code Général des Impôts), as such list may be amended from time to time.
“Non-Defaulting Lender” means, at any time, a Lender Party that is not a Defaulting Lender or a Potential Defaulting Lender.
“Non-Recourse Debt” means Debt for Borrowed Money with respect to which recourse for payment is limited to (a) any building(s) or parcel(s) of real property and any related assets encumbered by a Lien securing such Debt for Borrowed Money and/or (b)(i) the general credit of the Property-Level Subsidiary or its assets that has incurred such Debt for Borrowed Money, and/or the direct Equity Interests therein and/or (ii) the general credit of the immediate parent entity of such Property-Level Subsidiary or its assets, provided that such parent entity’s assets consist solely of Equity Interests in such Property-Level Subsidiary and any related assets, provided further that the instruments governing such Debt for Borrowed Money may include customary carve-outs to such limited recourse (any such customary carve-outs or agreements limited to such customary carve-outs, being a “Customary Carve-Out Agreement”) such as, for example, but not limited to, personal recourse to the borrower under such Debt for Borrowed Money and personal recourse to the Parent Guarantor or any Subsidiary of the Parent Guarantor for fraud, misrepresentation, misapplication or misappropriation of cash, waste, environmental claims, damage to properties, non-payment of taxes or other liens despite the existence of sufficient cash flow, interference with the enforcement of loan documents upon maturity or acceleration, voluntary or involuntary bankruptcy filings, violation of loan document prohibitions against transfer of properties or ownership interests therein and liabilities and other circumstances customarily excluded by lenders from exculpation provisions and/or included in separate indemnification and/or guaranty agreements in non-recourse financings of real estate.
“Non-Renewal Notice Date” has the meaning specified in Section 2.01(b).
“Note” means a promissory note of any Borrower payable to any Lender, in substantially the form of Exhibit A hereto, evidencing the aggregate indebtedness of such Borrower to such Lender resulting from the Advances made by such Lender.
“Notice” has the meaning specified in Section 9.02(c).
“Notice of Borrowing” has the meaning specified in Section 2.02(a).
“Notice of Borrowing Deadline” means:
(a)with respect to the U.S. Dollar Revolving Credit Tranche, (i) 2:00 P.M. (New York City time) on the third Business Day prior to the date of the proposed Borrowing in the case of a Borrowing consisting of Floating Rate Advances, (ii) 11:00 A.M. (New York City time) on the date of the proposed Borrowing in the case of a Borrowing consisting of Advances bearing interest at Daily Simple SOFR and
(iii) 1:00 P.M. (New York City time) on the date of the proposed Borrowing in the case of a Borrowing consisting of Base Rate Advances;
(b)with respect to the Multicurrency Revolving Credit Tranche, (i) 2:00 P.M. (London time) on the third Business Day prior to the date of the proposed Borrowing in the case of a Borrowing consisting of Floating Rate Advances and (ii) 2:00 P.M. (London time) on the third Daily RFR Business Day prior to the date of the proposed Borrowing in the case of a Borrowing consisting of Daily RFR Advances;
(c)with respect to the Singapore Dollar Revolving Credit Tranche, 10:00 A.M. (Hong Kong time) on the third Business Day or Daily RFR Business Day, as applicable, prior to the date of the proposed Borrowing;
(d)with respect to the Australian Dollar Revolving Credit Tranche, (i) 10:00 A.M. (Hong Kong time) on the third Business Day or Daily RFR Business Day, as applicable, prior to the date of the proposed Borrowing in the case of any Borrowing consisting of Floating Rate Advances or Daily RFR Advances and (ii) 10:00 A.M. (Hong Kong time) on the date of the proposed Borrowing in the case of a Borrowing consisting of Base Rate Advances;
(e)with respect to the IDR Revolving Credit Tranche, 12:00 P.M. (Hong Kong time) on the third Business Day prior to the date of the proposed Borrowing;
(f)with respect to the KRW-A Revolving Credit Tranche and the KRW-B Revolving Credit Tranche, 10:00 A.M. (Hong Kong time) on the third Business Day prior to the date of the proposed Borrowing; and
(g)the deadline set forth in the Supplemental Addendum with respect to Borrowings in any Supplemental Currency.
“Notice of Issuance” has the meaning specified in Section 2.03(a).
“Notice of Swing Line Borrowing” has the meaning specified in Section 2.02(b).
“NPL” means the National Priorities List under CERCLA.
“Obligation” means, with respect to any Person, any payment, performance or other obligation of such Person of any kind, including, without limitation, any liability of such Person on any claim, whether or not the right of any creditor to payment in respect of such claim is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, disputed, undisputed, legal, equitable, secured or unsecured, and whether or not such claim is discharged, stayed or otherwise affected by any proceeding referred to in Section 6.01(f). Without limiting the generality of the foregoing, the Obligations of any Loan Party under the Loan Documents include (a) the obligation to pay principal, interest, Letter of Credit commissions, charges, expenses, fees, attorneys’ fees and disbursements, indemnities and other amounts payable by such Loan Party under any Loan Document and (b) the obligation of such Loan Party to reimburse any amount in respect of any of the foregoing that any Lender Party, in its sole discretion, may elect to pay or advance on behalf of such Loan Party, provided that in no event shall the Obligations of the Loan Parties under the Loan Documents include any Excluded Swap Obligations.
“OFAC” has the meaning specified in Section 4.01(w).
“Operating Partnership” has the meaning specified in the recital of parties to this Agreement.
“Other Connection Taxes” means, with respect to any Lender Party or Administrative Agent, Taxes imposed as a result of a present or former connection between such recipient and the jurisdiction imposing such Tax (other than connections arising from such recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Advance or Loan Document).
“Other Taxes” has the meaning specified in Section 2.12(d).
“Parent Company” means, with respect to a Lender, the bank holding company (as defined in Federal Reserve Board Regulation Y), if any, of such Lender, and/or any Person owning, beneficially or of record, directly or indirectly, a majority of the shares of such Lender.
“Parent Guarantor” has the meaning specified in the recital of parties to this Agreement.
“Participant Register” has the meaning specified in Section 9.07(h).
“Participating Member State” means each state so described in any of the legislative measures of the European Council for the introduction of, or changeover to, an operation of a single or unified European currency.
“Patriot Act” has the meaning specified in Section 9.13.
“Payment Demand” has the meaning specified in Section 7.09(g).
“Payment Recipient” has the meaning specified in Section 8.08(a).
“PBGC” means the Pension Benefit Guaranty Corporation (or any successor).
“Periodic Term CORRA Determination Day” has the meaning set forth in the definition of Term CORRA.
“Periodic Term SOFR Determination Day” has the meaning set forth in the definition of Term SOFR.
“Permitted Amendments” has the meaning specified in Section 9.01(c).
“Permitted Bond Hedge Transaction” means any call or capped call option (or substantively equivalent derivative transaction) on the Parent Guarantor’s common stock purchased by the Parent Guarantor or any Borrower or any of their respective Subsidiaries in connection with the issuance of any Convertible Indebtedness; provided that the purchase price for such Permitted Bond Hedge Transaction, less the proceeds received by the Parent Guarantor, any Borrower or their respective Subsidiaries from the sale of any related Permitted Warrant Transaction, does not exceed the net proceeds received by the Parent Guarantor, any Borrower or their respective Subsidiaries from the sale of such Convertible Indebtedness issued in connection with the related Permitted Bond Hedge Transaction.
“Permitted Liens” means such of the following as to which no enforcement, collection, execution, levy or foreclosure proceeding shall have been commenced: (a) Liens for taxes, assessments and governmental charges or levies not yet delinquent or which are the subject of a Good Faith Contest; (b) Liens imposed by law, such as materialmen’s, mechanics’, carriers’, workmen’s and repairmen’s Liens and other similar Liens arising in the ordinary course of business securing obligations that (i) are not overdue for a period of more than 30 days and (ii) individually or together with all other Permitted Liens outstanding on any date of determination do not materially adversely affect the use of the property to which they relate unless, in the case of (i) or (ii) above, such liens are the subject of a Good Faith Contest; (c) pledges or deposits to secure obligations under workers’ compensation or unemployment laws or similar legislation or to secure public or statutory obligations; (d) covenants, conditions and restrictions, easements, zoning restrictions, rights of way and other encumbrances on title to real property that do not render title to the property encumbered thereby unmarketable or materially adversely affect the use or value of such property for its present purposes; (e) Tenancy Leases and other interests of lessees and lessors under leases of real or personal property made in the ordinary course of business that do not materially and adversely affect the use of the Real Property encumbered thereby for its intended purpose or the value thereof; (f) any attachment or judgment Liens not resulting in an Event of Default under Section 6.01(g); (g) customary Liens pursuant to general banking terms and conditions; (h) any netting, cash-pooling, set-off or similar arrangement entered into in the normal course of banking arrangements
for the purpose of netting debit and credit balances; (i) Liens in favor of any Secured Party pursuant to any Loan Document; (j) anything which is a Lien that arises by operation of section 12(3) of the Australian PPS Act which does not in substance secure payment or performance of an obligation; (k) Liens in favor of the Parent Guarantor, any Borrower or a Guarantor securing obligations owing by a Wholly-Owned Subsidiary; (l) purchase money liens so long as no such Lien is spread to cover any property other than Real Property or property that which is purchased and the amount of Debt secured thereby is limited to the purchase price; (m) Liens in connection with escrow or security deposits made in connection with acquisitions permitted hereunder; and (n) Liens over goods and documents of title to goods arising out of Letter of Credit transactions entered into in the ordinary course of business.
“Permitted Warrant Transaction” means any call option, warrant or right to purchase (or substantively equivalent derivative transaction) on the Parent Guarantor’s common stock sold by the Parent Guarantor, any Borrower or their respective Subsidiaries substantially concurrently with any purchase by the Parent Guarantor, any Borrower or their respective Subsidiaries of a related Permitted Bond Hedge Transaction.
“Person” means an individual, partnership, corporation (including a business trust), limited liability company, joint stock company, trust, unincorporated association, joint venture or other entity, or a government or any political subdivision or agency thereof.
“Plan” means a Single Employer Plan or a Multiple Employer Plan.
“Platform” has the meaning specified in Section 9.02(b).
“Polish Guarantor” has the meaning specified in Section 7.09(p)(i).
“Post Petition Interest” has the meaning specified in Section 7.07(c).
“Potential Defaulting Lender” means, at any time, (a) any Lender with respect to which an event of the kind referred to in the definition of “Lender Insolvency Event” has occurred and is continuing in respect of such Lender, its Parent Company or any Subsidiary or financial institution affiliate thereof, (b) any Lender that has notified, or whose Parent Company or a Subsidiary or financial institution affiliate thereof has notified, the Administrative Agent, any Issuing Bank, any Swing Line Bank or any Borrower in writing, or has stated publicly, that it does not intend to comply with its funding obligations under any other loan agreement or credit agreement or other financing agreement, or (c) any Lender that has, or whose Parent Company has, a long-term non-investment grade rating from Moody’s or S&P or another nationally recognized rating agency. Any determination by the Administrative Agent that a Lender is a Potential Defaulting Lender under any of clauses (a) through (c) above will be conclusive and binding absent manifest error, and such Lender will be deemed a Potential Defaulting Lender (subject to Section 2.21(b)) upon notification of such determination by the Administrative Agent to the Borrowers, the Lenders, each Issuing Bank and each Swing Line Bank.
“Preferred Interests” means, with respect to any Person, Equity Interests issued by such Person that are entitled to a preference or priority over any other Equity Interests issued by such Person upon any distribution of such Person’s property and assets, whether by dividend or upon liquidation.
“Pricing Certificate” means a certificate in substantially the form of Exhibit I hereto, duly certified by the Chief Financial Officer or other Responsible Officer of the Parent Guarantor and attaching (a) true and correct copies of the KPI Metric Report for the immediately preceding Annual Period and setting forth the Sustainability Facility Fee Adjustment and the Sustainability Margin Adjustment for the period covered thereby and the Certified Capacity disclosed therein, and computations in reasonable detail in respect thereof and (b) a review report of the KPI Metric Auditor relating to such KPI Metric Report, confirming that the KPI Metric Auditor is not aware of any material modifications that should be made to such computations in order for them to be presented in all material respects in conformity with the applicable reporting criteria.
“Pricing Certificate Inaccuracy” has the meaning specified in Section 2.23.
“Primary Currency” means in respect of (a) the U.S. Dollar Revolving Credit Tranche, Dollars, (b) the Multicurrency Revolving Credit Tranche, Dollars, (c) the Singapore Dollar Revolving Credit Tranche, Singapore Dollars, (d) the Australian Dollar Revolving Credit Tranche, Australian Dollars, (e) the IDR Revolving Credit Tranche, Indonesian Rupiah, (f) the KRW-A Revolving Credit Tranche and the KRW-B Revolving Credit Tranche, Korean Won, and (g) each Supplemental Tranche, the Supplemental Currency related thereto.
“Privacy Circular” has the meaning specified in Section 9.12.
“Pro Rata Share” of any amount means, with respect to any Lender at any time, the product of such amount times a fraction the numerator of which is the amount of such Lender’s Revolving Credit Commitment at such time (or, if the Commitments shall have been terminated pursuant to Section 2.05 or 6.01, such Lender’s Facility Exposure at such time) and the denominator of which is the aggregate amount of the Lenders’ Revolving Credit Commitments at such time (or, if the Commitments shall have been terminated pursuant to Section 2.05 or 6.01, the aggregate Facility Exposure at such time).
“Process Agent” has the meaning specified in Section 9.14(c).
“Processing Fee” means (a) $3,500 in the case of the U.S. Dollar Revolving Credit Tranche (or any Subfacility thereunder), the Australian Dollar Revolving Credit Tranche (or any Subfacility thereunder) and the Singapore Dollar Revolving Credit Tranche (or any Subfacility thereunder), (b) $3,500 in the case of the Multicurrency Revolving Credit Tranche (or any Subfacility thereunder), (c) IDR30,000,000 in the case of the IDR Revolving Credit Tranche (or any Subfacility thereunder), (d) KRW3,000,000 in the case of the KRW-A Revolving Credit Tranche (or any Subfacility thereunder) and the KRW-B Revolving Credit Tranche (or any Subfacility thereunder)and (e) the Equivalent of $3,500 in the case of any Supplemental Tranche.
“Property Fund” means an Unconsolidated Affiliate formed or sponsored by the Parent Guarantor or any Borrower to hold Real Property.
“Property-Level Subsidiary” means any Subsidiary of the Parent Guarantor or any Unconsolidated Affiliate that holds a direct fee or leasehold interest in any single building (or group of related buildings, including, without limitation, buildings pooled for purposes of a Non-Recourse Debt financing) or parcel (or group of related parcels, including, without limitation, parcels pooled for purposes of a Non-Recourse Debt financing) of real property and related assets and not in any other building or parcel of real property.
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“QFC” has the meaning specified in Section 9.21(b).
“QFC Credit Support” has the meaning specified in Section 9.21(a).
“Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Guarantor that has total assets exceeding $10,000,000 at the time such Swap Obligation is incurred or such other Person as constitutes an ECP under the Commodity Exchange Act or any regulations promulgated thereunder.
“Qualified French Intercompany Loan” has the meaning specified in Section 7.09(f)(ii).
“Qualified Institutional Investor” means a Qualified Institutional Investor (tekikaku kikan toshika) as defined in Article 2, Paragraph 3, item 1 of the Financial Instruments and Exchange Law (kinyu shohin torihiki ho) of Japan (Law No. 25 of 1948), Article 10, Paragraph 1 of the regulations relating to the definitions contained in such Article 2.
“Qualifying Ground Lease” means, subject to the last sentence of this definition, a lease of Real Property containing the following terms and conditions: (a) a remaining term (including any unexercised extension options as to which there are no conditions precedent to exercise thereof other than the giving of a notice of exercise) (or in the case of a JTC Property, such conditions precedent as are customarily imposed by the JTC on properties of a similar nature that are leased by the JTC) of (x) 25 years or more (or in the case of a JTC Property, 20 years or more) from the Closing Date or (y) such lesser term as may be acceptable to the Administrative Agent and which is customarily considered “financeable” by institutional lenders making loans secured by leasehold mortgages (or equivalent) in the jurisdiction of the applicable Real Property; (b) the right of the lessee to mortgage and encumber its interest in the leased property without the consent of the lessor (or in the case of a JTC Property, with such prior approval or notification as the JTC customarily requires from time to time under its standard regulations governing the creation of security interests over properties of a similar nature that are leased by the JTC); (c) the obligation of the lessor to give the holder of any mortgage Lien on such leased property written notice of any defaults on the part of the lessee and agreement of such lessor that such lease will not be terminated until such holder has had a reasonable opportunity to cure or complete foreclosures, and fails to do so (or in the case of a JTC Property, such obligations imposed on the JTC as lessor as are customary in its standard terms of lease for properties of a similar nature that are leased by the JTC); (d) reasonable transferability of the lessee’s interest under such lease, including the ability to sublease; and (e) such other rights customarily required by mortgagees in the applicable jurisdiction making a loan secured by the interest of the holder of a leasehold estate demised pursuant to a ground lease (or in the case of a JTC Property, such other rights as are customarily required by mortgagees in relation to properties of a similar nature that are leased by the JTC). Notwithstanding the foregoing, the leases set forth on Schedule V hereto as in effect as of the Closing Date shall be deemed to be Qualifying Ground Leases.
“Quotation Day” means, in relation to any period for which an interest rate is to be determined (a) if the currency is Australian Dollars or Hong Kong Dollars, the first day of that period, (b) if the currency is Canadian Dollars, the first day of that period, (c) if the currency is Yen, two Business Days before the first day of that period, (d) if the currency is Dollars, two Business Days before the first day of that period, (e) if the currency is IDR, two Business Days before the first day of that period (provided, however, that if quotations would customarily be given by leading banks in the Jakarta interbank market on more than one day, the last of such days), (f) if the currency is KRW, one Business Day before the first day of that period, (g) if the currency is Euros, two Business Days before the first day of such Interest Period, and (h) if the currency is a Supplemental Currency, the day set forth in the applicable Supplemental Addendum as the Quotation Day; in each case, unless the market practice then differs in the applicable interbank market, in which case the applicable Quotation Day shall be determined by the Administrative Agent in accordance with then-current market practice in the applicable interbank market.
“Reallocation” has the meaning specified in Section 2.19(a).
“Reallocation Commitment Date” has the meaning specified in Section 2.19(b).
“Reallocation Date” has the meaning specified in Section 2.19(a).
“Reallocation Funding Deadline” means (a) 3:00 P.M. (New York City time) on the Reallocation Date where the U.S. Dollar Revolving Credit Tranche is the Increasing Tranche or the Decreasing Tranche, (b) 10:00 A.M. (London time) on the Reallocation Date where the Multicurrency Revolving Credit Tranche is the Increasing Tranche or the Decreasing Tranche and the applicable Advances are denominated in Sterling, (c) 1:00 P.M. (London time) on the Reallocation Date where the Multicurrency Revolving Credit Tranche is the Increasing Tranche or the Decreasing Tranche and the applicable Advances are denominated in Canadian Dollars, (d) 10:00 A.M. (London time) on the Reallocation Date where the Multicurrency Revolving Credit Tranche is the Increasing Tranche or the Decreasing Tranche and the applicable Advances are denominated in Dollars, (e) 10:00 A.M. (London time) on the Reallocation Date where the Multicurrency Revolving Credit Tranche is the Increasing Tranche or the Decreasing Tranche and the applicable Advances are denominated in Euros, (f) 1:00 P.M.
(London time) on the Business Day immediately prior to the Reallocation Date where the Multicurrency Revolving Credit Tranche is the Increasing Tranche or the Decreasing Tranche and the applicable Advances are denominated in Yen, (g) 10:00 A.M. (London time) on the Reallocation Date where the Multicurrency Revolving Credit Tranche is the Increasing Tranche or the Decreasing Tranche and the applicable Advances are denominated in Swiss Francs, (h) 8:00 A.M. (Hong Kong time) on the Business Day immediately prior to the Reallocation Date where the Australian Dollar Revolving Credit Tranche is the Increasing Tranche or the Decreasing Tranche and the applicable Advances are denominated in Australian Dollars, (i) 12:00 P.M. (Hong Kong time) on the Reallocation Date where the Australian Dollar Revolving Credit Tranche is the Increasing Tranche or the Decreasing Tranche and the applicable Advances are denominated in Dollars, (j) 9:00 A.M. (Hong Kong time) on the Reallocation Date where the Australian Dollar Revolving Credit Tranche is the Increasing Tranche or the Decreasing Tranche and the applicable Advances are denominated in Sterling or Euro, (k) 12:00 P.M. (Hong Kong time) on the Business Day immediately prior to the Reallocation Date where the Singapore Dollar Revolving Credit Tranche is the Increasing Tranche or the Decreasing Tranche and the applicable Advances are denominated in Singapore Dollars, (l) 12:00 P.M. (Hong Kong time) on the Reallocation Date where the Singapore Dollar Revolving Credit Tranche is the Increasing Tranche or the Decreasing Tranche and the applicable Advances are denominated in Hong Kong Dollars, (m) 10:00 A.M. (Hong Kong time) on the Reallocation Date where the IDR Revolving Credit Tranche is the Increasing Tranche or the Decreasing Tranche, (n) 9:00 A.M. (Hong Kong time) on the Reallocation Date where the KRW-A Revolving Credit Tranche or the KRW-B Revolving Credit Tranche is the Increasing Tranche or the Decreasing Tranche and (o) the time or times set forth in the applicable Supplemental Addendum where any Supplemental Tranche is the Increasing Tranche or the Decreasing Tranche; provided, however, that if, in any case, two different deadlines are implicated, the Reallocation Funding Deadline shall be the earlier of the two deadlines.
“Reallocation Minimum” means (a) $5,000,000 in the case of the U.S. Dollar Revolving Credit Tranche, (b) $5,000,000 in the case of the Multicurrency Revolving Credit Tranche, (c) A$5,000,000 in the case of the Australian Dollar Revolving Credit Tranche, (d) S$5,000,000 in the case of the Singapore Dollar Revolving Credit Tranche, (e) IDR50,000,000,000 in the case of the IDR Revolving Credit Tranche, (f) KRW5,000,000,000 in the case of the KRW-A Revolving Credit Tranche and the KRW-B Revolving Credit Tranche, and (f) the Equivalent of $5,000,000 in the case of any Supplemental Tranche.
“Reallocation Notice” has the meaning specified in Section 2.19(a).
“Reallocation Purchasing Lenders” has the meaning specified in Section 2.19(d).
“Reallocation Selling Lenders” has the meaning specified in Section 2.19(d).
“Real Property” means all right, title and interest of any Borrower and each of its Subsidiaries in and to any land and/or any improvements located on any land, together with all equipment, furniture, materials, supplies and personal property in which such Person has an interest now or hereafter located on or used in connection with such land and/or improvements, and all appurtenances, additions, improvements, renewals, substitutions and replacements thereof now or hereafter acquired by such Person, in each case to the extent of such Person’s interest therein.
“Recipient” has the meaning specified in Section 9.12.
“Recourse Debt” means any Debt of the Parent Guarantor or any of its Subsidiaries that is not Non-Recourse Debt.
“Redeemable” means, with respect to any Equity Interest, any Debt or any other right or Obligation, any such Equity Interest, Debt, right or Obligation that (a) the issuer has undertaken to redeem at a fixed or determinable date or dates, whether by operation of a sinking fund or otherwise, or upon the occurrence of a condition not solely within the control of the issuer or (b) is redeemable at the option of the holder.
“Redevelopment Asset” means any Technology Asset (including Leased Assets) (a) which either (i) has been acquired by any Borrower or any of its Subsidiaries with a view toward renovating or rehabilitating 25.0% or more of the total square footage of such Asset, or (ii) any Borrower or a Subsidiary thereof intends to renovate or rehabilitate 25.0% or more of the total square footage of such Asset, and (b) that does not qualify as a “Development Asset” by reason of, among other things, the redevelopment plan for such Asset not including a total demolition of the existing building(s) and improvements. The Operating Partnership shall be entitled to reclassify any Redevelopment Asset as a Technology Asset at any time. For the avoidance of doubt, assets that are leased by the Operating Partnership or a Subsidiary thereof pursuant to a lease (other than a ground lease) shall not be precluded from being Redevelopment Assets.
“Reference Time” with respect to any setting of the then-current Benchmark for any currency means (a) if such Benchmark is a Daily Simple RFR, four (4) Daily RFR Business Days prior to (A) if the date of such setting is a Daily RFR Business Day, such date or (B) if the date of such setting is not a Daily RFR Business Day, the Daily RFR Business Day immediately preceding such date, (b) if such Benchmark is the Eurocurrency Rate, 11:00 A.M. (Brussels time) on the day that is two Business Days preceding the date of such setting and (c) otherwise, the time determined by the Administrative Agent, including in accordance with the Benchmark Replacement Conforming Changes.
“Register” has the meaning specified in Section 9.07(d).
“Regulation U” means Regulation U of the Board of Governors of the Federal Reserve System, as in effect from time to time.
“REIT” means a Person that is qualified to be treated for tax purposes as a real estate investment trust under Sections 856-860 of the Internal Revenue Code.
“Related Funds” means, with respect to a fund (the “first fund”), any other fund that invests in bank loans and is administered or managed by the same investment advisor as the first fund or by an Affiliate of such investment advisor.
“Relevant Canadian Governmental Body” means the Bank of Canada, or a committee officially endorsed or convened by the Bank of Canada, or any successor thereto.
“Relevant Canadian Governmental Body’s Website” means the Bank of Canada’s website or any successor source for CORRA identified as such by the Relevant Canadian Governmental Body from time to time.
“Relevant Currency” has the meaning specified in Section 9.16(b).
“Relevant Interbank Market” means, in relation to (a) Australian Dollars, the Australian bank bill market, (b) Singapore Dollars, the Singapore interbank market, (c) Hong Kong Dollars, the Hong Kong interbank market, (d) Yen, the Japanese Yen unsecured overnight money market, (e) Canadian Dollars, the Canadian interbank market, (f) Swiss Francs, the Swiss Franc overnight repo market, (g) IDR, the Jakarta interbank market, (h) KRW, the South Korea interbank market, (i) Sterling, the Sterling wholesale market, (j) Euro, the Euro interbank market or (k) any other currency of any other jurisdiction, the applicable interbank market of such jurisdiction.
“Replacement Lender” has the meaning specified in Section 9.01(b).
“Required Lenders” means, at any time, Lenders owed or holding greater than 50% of the sum of (a) the aggregate principal amount (expressed in Dollars and including the Equivalent in Dollars at such time of any amounts denominated in a Committed Foreign Currency) of the Advances outstanding at such time, (b) the aggregate Available Amount of all Letters of Credit (expressed in Dollars and including the Equivalent in Dollars at such time of any amounts denominated in a Committed Foreign Currency) outstanding at such time and (c) the aggregate Unused Revolving Credit Commitments at such time (expressed in Dollars and including the Equivalent in Dollars at such time of any amounts
denominated in a Committed Foreign Currency); provided, however, that when there are two or more Lenders holding Commitments, Required Lenders must include two or more Lenders. For purposes of this definition, the aggregate principal amount of Swing Line Advances owing to any Swing Line Bank and of Letter of Credit Advances owing to any Issuing Bank and the Available Amount of each Letter of Credit shall be considered to be owed to the Lenders participating in the applicable Tranche to which such Swing Line Advances or Letters of Credit, as applicable, relate, ratably in accordance with their respective Revolving Credit Commitments.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means the chief executive officer, president, chief financial officer, senior vice president, director, controller or the treasurer of any Loan Party or any of its Subsidiaries. Any document delivered hereunder or under any other Loan Document that is signed by a Responsible Officer shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of the applicable Loan Party or Subsidiary thereof, as applicable, and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party or such Subsidiary as applicable.
“Revolving Credit Advance” means an Australian Dollar Revolving Credit Advance, a Singapore Dollar Revolving Credit Advance, a U.S. Dollar Revolving Credit Advance a Multicurrency Revolving Credit Advance, an IDR Revolving Credit Advance, a KRW-A Revolving Credit Advance, a KRW-B Revolving Credit Advance or a Supplemental Tranche Advance.
“Revolving Credit Borrowing Minimum” means, in respect of Revolving Credit Advances, (a) $1,000,000 in the case of the U.S. Dollar Revolving Credit Tranche, (b) $1,000,000 in the case of the Multicurrency Revolving Credit Tranche, (c) A$1,000,000 in the case of the Australian Dollar Revolving Credit Tranche, (d) S$1,000,000 in the case of the Singapore Dollar Revolving Credit Tranche, (e) IDR10,000,000,000 in the case of the IDR Revolving Credit Tranche, (f) KRW1,000,000,000 in the case of the KRW-A Revolving Credit Tranche and the KRW-B Revolving Credit Tranche, and (g) the Equivalent of $1,000,000 in the case of any Supplemental Tranche (or, in each case, the Equivalent thereof in any applicable Committed Foreign Currency).
“Revolving Credit Borrowing Multiple” means, in respect of Revolving Credit Advances, (a) $100,000 in the case of the U.S. Dollar Revolving Credit Tranche, (b) $100,000 in the case of the Multicurrency Revolving Credit Tranche, (c) A$100,000 in the case of the Australian Dollar Revolving Credit Tranche, (d) S$100,000 in the case of the Singapore Dollar Revolving Credit Tranche, (e) IDR1,000,000,000 in the case of the IDR Revolving Credit Tranche, (f) KRW100,000,000 in the case of the KRW-A Revolving Credit Tranche and the KRW-B Revolving Credit Tranche, and (g) the Equivalent of $100,000 in the case of any Supplemental Tranche (or, in each case, the Equivalent thereof in any applicable Committed Foreign Currency).
“Revolving Credit Commitment” means, with respect to any Lender, the sum of such Lender’s (a) Australian Dollar Revolving Credit Commitment, (b) Singapore Dollar Revolving Credit Commitment, (c) Multicurrency Revolving Credit Commitment, (d) U.S. Dollar Revolving Credit Commitment, (e) IDR Revolving Credit Commitment, (f) KRW-A Revolving Credit Commitment, (g) KRW-B Revolving Credit Commitment, and (h) Supplemental Tranche Commitment, and “Revolving Credit Commitments” means the aggregate principal amount of the Revolving Credit Commitments of all of the Lenders, the maximum amount of which shall be $4,200,000,000, as increased from time to time pursuant to Section 2.18 or Section 2.20 or as reduced from time to time pursuant to Section 2.05.
“Revolving Credit Reduction Minimum” means (a) in respect of any Facility (other than a Swing Line Facility), $1,000,000 in the case of the U.S. Dollar Revolving Credit Tranche, $1,000,000 in the
case of the Multicurrency Revolving Credit Tranche, A$1,000,000 in the case of the Australian Dollar Revolving Credit Tranche, S$1,000,000 in the case of the Singapore Dollar Revolving Credit Tranche, IDR10,000,000,000 in the case of the IDR Revolving Credit Tranche, KRW1,000,000,000 in the case of the KRW-A Revolving Credit Tranche and the KRW-B Revolving Credit Tranche, and the Equivalent of $1,000,000 in the case of any Supplemental Tranche (or, in each case, the Equivalent thereof in any applicable Committed Foreign Currency), and (b) in respect of any Swing Line Facility, $250,000 in the case of the U.S. Dollar Swing Line Facility, €250,000 in the case of the Multicurrency Swing Line Facility (or the Equivalent thereof in Sterling or Canadian Dollars), A$250,000 in the case of the Australian Swing Line Facility, S$250,000 in the case of the Singapore Swing Line Facility (or the Equivalent thereof in Hong Kong Dollars), and KRW50,000,000 in the case of the KRW-A Swing Line Facility and the KRW-B Swing Line Facility.
“Revolving Credit Reduction Multiple” means (a) in respect of any Facility (other than a Swing Line Facility), $100,000 in the case of the U.S. Dollar Revolving Credit Tranche, $100,000 in the case of the Multicurrency Revolving Credit Tranche, A$100,000 in the case of the Australian Dollar Revolving Credit Tranche, S$100,000 in the case of the Singapore Dollar Revolving Credit Tranche, IDR1,000,000,000 in the case of the IDR Revolving Credit Tranche, KRW100,000,000 in the case of the KRW-A Revolving Credit Tranche and the KRW-B Revolving Credit Tranche, and the Equivalent of $1,000,000 in the case of any Supplemental Tranche (or, in each case, the Equivalent thereof in any applicable Committed Foreign Currency), and (b) in respect of any Swing Line Facility, $50,000 in the case of the U.S. Dollar Swing Line Facility, €50,000 in the case of the Multicurrency Swing Line Facility (or the Equivalent thereof in Sterling or Canadian Dollars), A$50,000 in the case of the Australian Swing Line Facility, S$50,000 in the case of the Singapore Swing Line Facility (or the Equivalent thereof in Hong Kong Dollars), and KRW50,000,000 in the case of the KRW-A Swing Line Facility and the KRW-B Swing Line Facility.
“RFR” means, for any Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, (a) Sterling, SONIA, (b) SGD, SORA, (c) Swiss Francs, SARON and (d) Dollars, Daily Simple SOFR.
“RFR Administrator” means the SOFR Administrator, the SONIA Administrator, the SORA Administrator or the SARON Administrator, as applicable.
“RFR Administrator’s Website” means the SOFR Administrator’s Website, the SONIA Administrator’s Website or the SORA Administrator’s Website, as applicable.
“S&P” means S&P Global Ratings, a division of S&P Global Inc., and any successor thereto.
“Sanctioned Jurisdiction” means a country or territory that is the target of comprehensive Sanctions, currently, as of the Closing Date, Cuba, Iran, North Korea, Syria, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea region, and the non-government controlled areas of the Zaporizhzhia and Kherson oblasts of Ukraine.
“Sanctions” has the meaning specified in Section 4.01(w).
“SARON” means a rate equal to the Swiss Average Rate Overnight as administered by the SARON Administrator.
“SARON Administrator” means the SIX Swiss Exchange AG (or any successor administrator of the Swiss Average Rate Overnight).
“SARON Administrator’s Website” means SIX Swiss Exchange AG’s website, currently at https://www.six-group.com, or any successor source for the Swiss Average Rate Overnight identified as such by the SARON Administrator from time to time.
“Secured Debt” means, at any date of determination, the amount at such time of all Consolidated Debt of the Parent Guarantor and its Subsidiaries that is secured by a Lien on the assets of the Parent Guarantor or any Subsidiary thereof.
“Secured Debt Leverage Ratio” means, at any date of determination, the ratio, expressed as a percentage, of (a) Secured Debt to (b) Total Asset Value, in each case as at the end of the most recently ended fiscal quarter of the Parent Guarantor for which financial statements are required to be delivered to the Lender Parties pursuant to Section 5.03(b) or (d), as the case may be.
“Secured Parties” means the Administrative Agent, the Co-Sustainability Structuring Agents, the Lender Parties and the Hedge Banks.
“Securities Act” means the Securities Act of 1933, as amended to the date hereof and from time to time hereafter, and any successor statute.
“Securities Exchange Act” means the Securities Exchange Act of 1934, as amended to the date hereof and from time to time hereafter, and any successor statute.
“Short-Term Leased Asset” has the meaning specified in the definition of “Leased Asset”.
“Short-Term Leased Asset Book Value” means, with respect to each Short-Term Leased Asset, the book value for (i) the applicable lease as a right of use asset and (ii) the real estate improvements on the applicable Short-Term Leased Asset; in each case as shown on the balance sheet of the Parent Guarantor as of any date of determination thereof.
“Singapore Borrower” means the Initial Singapore Borrower 1, the Initial Singapore Borrower 2, the Initial Singapore Borrower 3, the Initial Singapore Borrower 4, the Initial Singapore Borrower 5 and each Additional Borrower that is designated as a Borrower with respect to the Singapore Dollar Revolving Credit Tranche, the Singapore Swing Line Facility or the Singapore Letter of Credit Facility.
“Singapore Committed Currencies” means Singapore Dollars and Hong Kong Dollars.
“Singapore Dollar Revolving Credit Advance” has the meaning specified in Section 2.01(a)(iv).
“Singapore Dollar Revolving Credit Commitment” means, (a) with respect to any Lender at any time, the amount set forth opposite such Lender’s name on Schedule I hereto under the caption “Singapore Dollar Revolving Credit Commitment” or (b) if such Lender has entered into one or more Assignment and Acceptances or Lender Accession Agreements, set forth for such Lender in the Register maintained by the Administrative Agent pursuant to Section 9.07(d) as such Lender’s “Singapore Dollar Revolving Credit Commitment”, as such amount may be reduced at or prior to such time pursuant to Section 2.05 or 2.19 or increased pursuant to Section 2.18 or 2.19.
“Singapore Dollar Revolving Credit Pro Rata Share” of any amount means, with respect to any Lender at any time, the product of such amount times a fraction the numerator of which is the amount of such Lender’s Singapore Dollar Revolving Credit Commitment at such time (or, if the Commitments shall have been terminated pursuant to Section 2.05 or 6.01, such Lender’s Facility Exposure with respect to the Singapore Dollar Revolving Credit Tranche at such time) and the denominator of which is the Singapore Dollar Revolving Credit Tranche at such time (or, if the Commitments shall have been terminated pursuant to Section 2.05 or 6.01, the total Facility Exposure with respect to the Singapore Dollar Revolving Credit Tranche at such time).
“Singapore Dollar Revolving Credit Tranche” means, at any time, the aggregate amount of the Lenders’ Singapore Dollar Revolving Credit Commitments at such time.
“Singapore Dollar Revolving Lender” means any Person that is a Lender hereunder in respect of the Singapore Dollar Revolving Credit Tranche in its capacity as a Lender in respect of such Tranche.
“Singapore Dollars” and the “S$” sign each means lawful currency of Singapore.
“Singapore Issuing Bank” means JPMorgan Chase Bank, N.A. (or any Affiliate thereof), and any other Lender approved as a Singapore Issuing Bank by the Administrative Agent and the Operating Partnership and any Eligible Assignee to which a Singapore Letter of Credit Commitment hereunder has been assigned pursuant to Section 9.07 so long as each such Lender or each such Eligible Assignee expressly agrees to perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Singapore Issuing Bank and notifies the Administrative Agent of its Applicable Lending Office and the amount of its Singapore Letter of Credit Commitment (which information shall be recorded by the Administrative Agent in the Register) for so long as such initial Singapore Issuing Bank, Lender or Eligible Assignee, as the case may be, shall have a Singapore Letter of Credit Commitment.
“Singapore Lender Party” means any Singapore Dollar Revolving Lender, the Swing Line Bank under the Singapore Swing Line Facility or a Singapore Issuing Bank.
“Singapore Letter of Credit Commitment” means, with respect to any Singapore Issuing Bank at any time, the amount set forth opposite such Singapore Issuing Bank’s name on Schedule I hereto under the caption “Singapore Letter of Credit Commitment” or, if such Singapore Issuing Bank has entered into one or more Assignment and Acceptances, set forth for such Singapore Issuing Bank in the Register maintained by the Administrative Agent pursuant to Section 9.07(d) as such Singapore Issuing Bank’s “Singapore Letter of Credit Commitment”, as such amount may be reduced at or prior to such time pursuant to Section 2.05 or 2.19 or increased pursuant to Section 2.19.
“Singapore Letter of Credit Facility” means, at any time, an amount equal to the lesser of (a) the aggregate amount of the Singapore Issuing Banks’ Letter of Credit Commitments at such time, and (b) S$100,000,000 (or the Equivalent thereof in any other Singapore Committed Currency), as such amount may be reduced at or prior to such time pursuant to Section 2.05. The Singapore Letter of Credit Facility shall be a Subfacility of the Singapore Dollar Revolving Credit Tranche.
“Singapore Letters of Credit” has the meaning specified in Section 2.01(b)(vi).
“Singapore Swing Line Facility” means, at any time, an amount equal to the lesser of (a) the aggregate amount of the Swing Line Commitments relating to the Singapore Dollar and Hong Kong Dollar denominated Swing Line Facility at such time, and (b) S$50,000,000 (or the Equivalent thereof in Singapore Dollars), as such amount may be reduced at or prior to such time pursuant to Section 2.05. The Singapore Swing Line Facility shall be a Subfacility of the Singapore Dollar Revolving Credit Tranche.
“Singapore Tranche Lending Office” means, with respect to any Lender Party, the office of such Lender Party specified as its “Singapore Tranche Lending Office” opposite its name on Schedule I hereto or in the Assignment and Acceptance or Lender Accession Agreement pursuant to which it became a Lender Party, or such other office of such Lender Party as such Lender Party may from time to time specify to the Borrowers and the Administrative Agent.
“Single Employer Plan” means a single employer plan, as defined in Section 4001(a)(15) of ERISA, in which (a) any Loan Party or any ERISA Affiliate and no Person other than the Loan Parties and the ERISA Affiliates is a contributing sponsor or (b) any Loan Party or any ERISA Affiliate, and no Person other than the Loan Parties and the ERISA Affiliates, is a contributing sponsor if such Loan Party or ERISA Affiliate would reasonably be expected to have liability under Section 4069 of ERISA in the event such plan has been or were to be terminated.
“SLCA” has the meaning specified in the definition of Contingent Obligation.
“SOFR” means a rate per annum equal to the secured overnight financing rate for the applicable Business Day published by the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate) on the SOFR Administrator’s Website.
“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’s Website” means the SOFR Administrator’s website, currently at http://www.newyorkfed.org (or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time).
“Solvent” means, with respect to any Person or group of Persons on a particular date, that on such date (a) the fair value of the property of such Person or group of Persons, on a going-concern basis, is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person or group of Persons, (b) the present fair salable value of the assets of such Person or group of Persons, on a going-concern basis, is not less than the amount that will be required to pay the probable liability of such Person or group of Persons on its debts as they become absolute and matured, (c) such Person or group of Persons does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s or group of Persons' ability to pay such debts and liabilities as they mature and (d) such Person or group of Persons is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s or group of Persons' property would constitute an unreasonably small capital. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time (including, without limitation, after taking into account appropriate discount factors for the present value of future contingent liabilities), represents the amount that can reasonably be expected to become an actual or matured liability.
“SONIA” means a rate equal to the Sterling Overnight Index Average as administered by the SONIA Administrator.
“SONIA Administrator” means the Bank of England (or any successor administrator of the Sterling Overnight Index Average).
“SONIA Administrator’s Website” means the Bank of England’s website, currently at http://www.bankofengland.co.uk, or any successor source for the Sterling Overnight Index Average identified as such by the SONIA Administrator from time to time.
“SORA” means the volume-weighted average rate of borrowing transactions in the unsecured overnight SGD cash market in Singapore, as administered by the SORA Administrator; provided, however, that in no event shall SORA be less than the Floor for any Advance that has not been identified by the Borrowers to the Administrative Agent as being subject to a Hedge Agreement.
“SORA Administrator” means the Monetary Authority of Singapore (or any successor administrator of SORA).
“SORA Administrator’s Website” means https://eservices.mas.gov.sg/statistics/dir/DomesticInterestRates.aspx, or any successor source for the Swiss Average Rate Overnight identified as such by the SORA Administrator from time to time.
“Specified Jurisdictions” means the United States, Canada, United Kingdom of Great Britain and Northern Ireland, Singapore, Australia, Japan, France, the Federal Republic of Germany, Netherlands, Belgium, Switzerland, Ireland, Luxembourg, Hong Kong, Hungary, the Czech Republic, the Republic of Poland, the Kingdom of Sweden, the Republic of Finland, the Kingdom of Norway, Brazil, South Korea, South Africa, Denmark, Spain and such other jurisdictions as are agreed to by the Required Lenders.
“Standby Letter of Credit” means any Letter of Credit issued under any Letter of Credit Facility, other than a Trade Letter of Credit or a Bank Guarantee.
“Standing Payment Instruction” means, in relation to each Lender Party, the payment instruction provided to the Administrative Agent or in any relevant Assignment and Acceptance or Lender Accession Agreement, as amended from time to time by written instructions of a duly authorized officer of the relevant Lender Party (delivered in a letter bearing the original signature of such duly authorized officer) to the Administrative Agent.
“Sterling” and “£” each means lawful currency of the United Kingdom of Great Britain and Northern Ireland.
“Subfacility” means any Swing Line Facility or any Letter of Credit Facility, as the context may require.
“Subordinated Obligations” has the meaning specified in Section 7.07(a).
“Subsidiary” of any Person means any corporation, partnership, joint venture, limited liability company, trust or estate (a) of which (or in which) more than 50% of (i) the issued and outstanding capital stock having ordinary voting power to elect a majority of the Board of Directors of such corporation (irrespective of whether at the time capital stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency), (ii) the interest in the capital or profits of such partnership, joint venture or limited liability company or (iii) the beneficial interest in such trust or estate, in each case, is at the time directly or indirectly owned or controlled by such Person, by such Person and one or more of its other Subsidiaries or by one or more of such Person’s other Subsidiaries, or (b) the accounts of which would appear on the Consolidated financial statements of such Person in accordance with GAAP.
“Substitute Daily RFR Rate” means, with respect to any Daily RFR Business Day and Advances denominated in Sterling or Swiss Francs, (a) the percentage rate per annum which is the aggregate of (i) the applicable Central Bank Rate for that Daily RFR Business Day and (ii) the applicable Central Bank Rate Adjustment; or (b) if the applicable Central Bank Rate for such Daily RFR Business Day is not available, the percentage rate per annum which is the aggregate of (i) the most recent Central Bank Rate for a day which is no more than five (5) Daily RFR Business Days before that Daily RFR Business Day and (ii) the applicable Central Bank Rate Adjustment; rounded, in each case, to four decimal places.
“Supplemental Addendum” has the meaning set forth in Section 2.20.
“Supplemental Borrower” means the applicable Borrower or Borrowers that is or are designated as the Borrower or Borrowers with respect to a particular Supplemental Tranche in accordance with Section 2.20.
“Supplemental Currency” has the meaning set forth in Section 2.20.
“Supplemental Currency Screen Rate” means, with respect to a Supplemental Currency, the page or service displaying the applicable Floating Rate relating to such Supplemental Currency (if any) as set forth in the applicable Supplemental Addendum.
“Supplemental Tranche” has the meaning set forth in Section 2.20.
“Supplemental Tranche Advance” has the meaning specified in Section 2.01(a)(vii).
“Supplemental Tranche Commitment” means, (a) with respect to any Lender at any time, the amount set forth opposite such Lender’s name on Schedule I hereto under the caption “Supplemental Tranche Commitments” or (b) if such Lender has entered into one or more Assignment and Acceptances or Lender Accession Agreements, set forth for such Lender in the Register maintained by the Administrative Agent pursuant to Section 9.07(d) as such Lender’s “Supplemental Tranche Commitments”, as such amount may be reduced at or prior to such time pursuant to Section 2.05 or 2.19 or increased pursuant to Section 2.18 or 2.19.
“Supplemental Tranche Effective Date” has the meaning set forth in Section 2.20.
“Supplemental Tranche Pro Rata Share” of any amount means, with respect to any Lender at any time, the product of such amount times a fraction the numerator of which is the amount of such Lender’s Supplemental Tranche Commitment at such time (or, if the Commitments shall have been terminated pursuant to Section 2.05 or 6.01, such Lender’s Facility Exposure with respect to the applicable Supplemental Tranche at such time) and the denominator of which is the applicable Supplemental Tranche at such time (or, if the Commitments shall have been terminated pursuant to Section 2.05 or 6.01, the total Facility Exposure with respect to such Supplemental Tranche at such time).
“Supplemental Tranche Request” has the meaning set forth in Section 2.20.
“Supported QFC” has the meaning specified in Section 9.21.
“Surviving Debt” means Debt for Borrowed Money of each Loan Party and its Subsidiaries outstanding immediately after the Effective Date.
“Sustainability Facility Fee Adjustment” means a percentage per annum determined by reference to the Certified Capacity as set forth in Schedule 2.23 hereto.
“Sustainability Margin Adjustment” means a percentage per annum determined by reference to the Certified Capacity as set forth in Schedule 2.23 hereto.
“Sustainability Pricing Adjustment Date” has the meaning specified in Section 2.23.
“Swap Obligation” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.
“Swing Line Advance” means an advance made by (a) any Swing Line Bank pursuant to Section 2.01(c) or (b) any Lender pursuant to Section 2.02(b).
“Swing Line Availability Time” means (a) 2:00 P.M. (New York City time) on the date of such Swing Line Borrowing in the case of Swing Line Borrowings under the U.S. Dollar Swing Line Facility, (b) 3:00 P.M. (London time) on the date of such Swing Line Borrowing in the case of Swing Line Borrowings in Euros or Sterling under the Multicurrency Swing Line Facility, (c) 12:00 P.M. (Hong Kong time) on the date of such Swing Line Borrowing in the case of Swing Line Borrowings under the Singapore Swing Line Facility, (d) 5:00 P.M. (Hong Kong time) on the date of such Swing Line Borrowing in the case of Swing Line Borrowings under the Australian Swing Line Facility, (e) 9:00 A.M. (Hong Kong time) on the date of such Swing Line Borrowing in the case of Swing Line Borrowings under the KRW-A Swing Line Facility and the KRW-B Swing Line Facility and (f) 5:00 P.M. (London time) on the date of such Swing Line Borrowing in the case of Swing Line Borrowings in Canadian Dollars under the Multicurrency Swing Line Facility.
“Swing Line Bank” means, individually or collectively, as the context may require, (a) Bank of America, N.A. (or any Affiliate thereof) in its capacity as the Lender of Swing Line Advances under the U.S. Dollar Swing Line Facility, (b) Citibank, N.A., London Branch (or any Affiliate thereof), in its capacity as the Lender of Swing Line Advances under the Multicurrency Swing Line Facility, (c) JPMorgan Chase Bank, N.A., Singapore Branch (or any Affiliate thereof), in its capacity as the Lender of Swing Line Advances under the Singapore Swing Line Facility, (d) JPMorgan Chase Bank, N.A., Sydney Branch (or any Affiliate thereof), in its capacity as the Lender of Swing Line Advances under the Australian Swing Line Facility, (e) JPMorgan Chase Bank, N.A., Seoul Branch (or any Affiliate thereof), in its capacity as the Lender of Swing Line Advances under the KRW-A Swing Line Facility and (f) JPMorgan Chase Bank, N.A., Seoul Branch (or any Affiliate thereof), in its capacity as the Lender of Swing Line Advances under the KRW-B Swing Line Facility; and in each case their respective successors and permitted assigns in such capacity.
“Swing Line Borrowing” means a borrowing consisting of a Swing Line Advance made by any Swing Line Bank pursuant to Section 2.01(c) or the Lenders pursuant to Section 2.02(b).
“Swing Line Borrowing Minimum” means, in respect of Swing Line Advances, $250,000 in the case of the U.S. Dollar Swing Line Facility, $250,000 or the Equivalent of $250,000 in Sterling, Euro or Canadian Dollars, as applicable, in the case of the Multicurrency Swing Line Facility, A$250,000 in the case of the Australian Swing Line Facility, S$250,000 (or the Equivalent of S$250,000 in Hong Kong Dollars), in the case of the Singapore Swing Line Facility, and KRW250,000,000 in the case of the KRW-A Swing Line Facility and the KRW-B Swing Line Facility.
“Swing Line Borrowing Multiple” means, in respect of Swing Line Advances, $100,000 in the case of the U.S. Dollar Swing Line Facility, $100,000 or the Equivalent in Sterling, Euro or Canadian Dollars of $100,000 in the case of the Multicurrency Swing Line Facility, A$100,000 in the case of the Australian Swing Line Facility S$100,000 (or the Equivalent in Hong Kong Dollars) in the case of the Singapore Swing Line Facility and KRW100,000,000 in the case of the KRW-A Swing Line Facility and the KRW-B Swing Line Facility.
“Swing Line Commitment” means, with respect to each Swing Line Facility, the amount set forth opposite the applicable Swing Line Bank’s name on Schedule I hereto under the caption “Swing Line Commitment”, as such amount may be reduced at or prior to such time pursuant to Section 2.05.
“Swing Line Deadline” means (a) 1:00 P.M. (New York City time) in the case of Swing Line Advances in Dollars, (b) 10:00 A.M. (Hong Kong time) in the case of Swing Line Advances in Singapore Dollars or Hong Kong Dollars, (c) 9:30 A.M. (London time) in the case of Swing Line Advances in Euros or Sterling, (d) 10:00 A.M. (Sydney time) in the case of Swing Line Advances in Australian Dollars, (e) 9:00 A.M. (Hong Kong time) in the case of Swing Line Advances in Korean Won and (f) 3:00 P.M. (London time) in the case of Swing Line Advances in Canadian Dollars.
“Swing Line Facility” means the Australian Swing Line Facility, the Singapore Swing Line Facility, the Multicurrency Swing Line Facility, the U.S. Dollar Swing Line Facility, the KRW-A Swing Line Facility or the KRW-B Swing Line Facility.
“Swing Line Purchasing Notice Deadline” means (a) 2:00 P.M. (New York City time) on the proposed funding date by Lenders in the case of Swing Line Advances in Dollars, (b) 11:30 A.M. (Hong Kong time) three Business Days prior to the proposed funding date by Lenders in the case of Swing Line Advances in Singapore Dollars or Hong Kong Dollars, (c) 11:30 A.M. (London time) three Business Days prior to the proposed funding date by Lenders in the case of Swing Line Advances in Euros, Sterling or Canadian Dollars, (d) 11:30 A.M. (Sydney time) three Business Days prior to the proposed funding date by Lenders in the case of Swing Line Advances in Australian Dollars and (e) 11:30 A.M. (Seoul time) two Business Days prior to the proposed funding date by Lenders in the case of Swing Line Advances in Korean Won.
“Swiss Francs” and “CHF” each means lawful currency of the Swiss Federation.
“Swiss Guarantor” means any Guarantor incorporated or organized under the laws of Switzerland.
“Taxes” has the meaning specified in Section 2.12(a).
“Technology Asset” means any owned Real Property or leased Real Property (other than any Unconsolidated Affiliate Asset) that operates or is intended to operate primarily as a telecommunications infrastructure building, an information technology infrastructure building, a technology manufacturing building or a technology office/corporate headquarter building.
“Tenancy Leases” means operating leases, subleases, licenses, occupancy agreements and rights-of-use entered into by the Borrowers or any of their respective Subsidiaries in its capacity as a
lessor or a similar capacity in the ordinary course of business that do not materially and adversely affect the use of the Real Property encumbered thereby for its intended purpose.
“Term CORRA” means, for any calculation with respect to a Term CORRA Advance, the forward‐looking term rate based on CORRA for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term CORRA Determination Day”) that is two (2) Business Days prior to the first day of such Interest Period, as such rate is published by the applicable authorized benchmark administrator; provided, however, that if as of 1:00 p.m. (Toronto time) on any Periodic Term CORRA Determination Day Term CORRA for the applicable tenor has not been published by the Relevant Canadian Governmental Body and a Benchmark Replacement Date with respect to Term CORRA has not occurred, then Term CORRA will be Term CORRA for such tenor as published by the Relevant Canadian Governmental Body on the first preceding Business Day for which Term CORRA for such tenor was published by the Relevant Canadian Governmental Body so long as such first preceding Business Day is not more than three (3) Business Days prior to such Periodic Term CORRA Determination Day.
“Term CORRA Advance” means an Advance that bears interest at a rate based on Term CORRA that is not a Swing Line Advance.
“Term SOFR” means, for any calculation with respect to an Advance, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator on the Term SOFR Administrator’s Website; provided, however, that if as of 5:00 P.M. (New York time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day.
“Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable discretion).
“Term SOFR Administrator’s Website” means the Term SOFR Administrator’s website, currently at https://www.cmegroup.com/market-data/cme-group-benchmark-administration/term-sofr.html (or any successor source for Term SOFR identified as such by the Term SOFR Administrator from time to time).
“Term SOFR Advance” means an Advance that bears interest at a rate based on Term SOFR (other than pursuant to clause (c) of the definition of “Base Rate”).
“Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.
“Termination Date” means the earlier of (a) January 24, 2029, subject to any extension thereof pursuant to Section 2.16, and (b) the date of termination in whole of the Revolving Credit Commitments, the Letter of Credit Commitments and the Swing Line Commitments pursuant to Section 2.05 or 6.01.
“TIBOR” has the meaning specified in the definition of “TIBOR Rate”.
“TIBOR Rate” means, for any Interest Period, the rate per annum equal to the Tokyo Interbank Offered Rate (“TIBOR”) as administered by the Ippan Shadan Hojin JBA TIBOR Administration (or any other Person that takes over the administration of such rate) for a period equal in length to such Interest
Period, as displayed on the applicable Bloomberg page (or on any successor or substitute page or service providing such quotations) as determined by the Administrative Agent from time to time at approximately 11:00 a.m. (Tokyo time) on the applicable Quotation Day; provided that if such rate is not available at such time for any reason, then the “TIBOR Rate” with respect to such Eurocurrency Rate Borrowing for such Interest Period shall be the Interpolated Screen Rate. Notwithstanding anything to the contrary in this Agreement, in no event shall the TIBOR Rate be less than the Floor for any Advance that has not been identified by the Borrowers to the Administrative Agent as being subject to a Hedge Agreement.
“TMK” means a Tokutei Mokuteki Kaisha incorporated in Japan.
“TMK Law” means the Law Relating to Securitization of Assets of Japan (Law No. 105 of 1998, as amended).
“Total Asset Value” means, on any date of determination, the sum of the following without duplication: (a) the sum of the Asset Values for all Assets at such date, plus (b) an amount (but not less than zero) equal to all unrestricted cash and Cash Equivalents on hand of the Parent Guarantor and its Subsidiaries minus the amount of such cash and Cash Equivalents deducted pursuant to the definition of “Consolidated Debt”, plus (c) earnest money deposits associated with potential acquisitions as of such date, plus (d) the book value in accordance with GAAP (but determined without giving effect to any depreciation) of all other investments held by the Parent Guarantor and its Subsidiaries at such date (exclusive of goodwill and other intangible assets); provided, however, that the portion of the Total Asset Value attributable to (i) undeveloped land, Development Assets, Redevelopment Assets and Unconsolidated Affiliate Assets shall not exceed in the aggregate 40% of Total Asset Value, with any excess excluded from such calculation, and (ii) Unencumbered Assets located in (1) jurisdictions outside of the Specified Jurisdictions and (2) Brazil, South Africa and South Korea shall not exceed, in the aggregate, 20% (with the portion of Total Asset Value attributable to Unencumbered Assets located in Brazil, South Africa and South Korea subject to an aggregate sublimit of 15% within such 20% limit), in each case with any excess excluded from such calculation.
“Total Reallocation Amount” has the meaning specified in Section 2.19(a).
“Total Unencumbered Asset Value” means, on any date of determination, an amount equal to the sum of the Asset Values of all Unencumbered Assets plus unrestricted cash and Cash Equivalents minus the amount of such cash and Cash Equivalents deducted pursuant to the definition of “Consolidated Debt”; provided, however, that the portion of the Total Unencumbered Asset Value attributable to (a) undeveloped land, Redevelopment Assets, Development Assets, Assets owned or leased by Controlled Joint Ventures and Leased Assets shall not exceed 40% (with the portion of Total Unencumbered Asset Value attributable to Leased Assets subject to a sublimit of 20% within such 40% limit and the portion of Total Unencumbered Asset Value attributable to Short-Term Leased Assets subject to a sub-sublimit of 5% within such 20% sublimit), and (b) Unencumbered Assets located in (i) jurisdictions outside of the Specified Jurisdictions and (ii) Brazil, South Africa and South Korea shall not exceed, in the aggregate, 20% (with the portion of Total Unencumbered Asset Value attributable to Unencumbered Assets located in Brazil, South Africa and South Korea subject to an aggregate sublimit of 15% within such 20% limit), in each case with any excess excluded from such calculation.
“Trade Letter of Credit” means any Letter of Credit that is issued under any Letter of Credit Facility for the benefit of a supplier of inventory or equipment to any Borrower or any of its Subsidiaries to effect payment for such inventory or equipment.
“Tranche” means each of the U.S. Dollar Revolving Credit Tranche, the Multicurrency Revolving Credit Tranche, the IDR Revolving Credit Tranche, the KRW-A Revolving Credit Tranche, the KRW-B Revolving Credit Tranche, the Australian Dollar Revolving Credit Tranche, the Singapore Dollar Revolving Credit Tranche and each Supplemental Tranche.
“Tranche Assigned Rights and Obligations” has the meaning specified in Section 2.22(a).
“Tranche Purchasing Lender” has the meaning specified in Section 2.22(a).
“Tranche Required Lenders” means, at any time, with respect to a Tranche, Lenders under such Tranche owed or holding greater than 50% of the sum of (a) the aggregate principal amount (expressed in the applicable Primary Currency and including the Equivalent in such Primary Currency at such time of any amounts denominated in any other currency) of the Advances outstanding at such time under such Tranche, (b) the aggregate Available Amount (expressed in the applicable Primary Currency and including the Equivalent in such Primary Currency at such time of any amounts denominated in any other currency) of all Letters of Credit under such Tranche outstanding at such time and (c) the aggregate Unused Revolving Credit Commitments relating to such Tranche at such time; provided, however, that at all times when there are two or more Lenders in such Tranche, “Tranche Required Lenders” must include two or more Lenders of such Tranche. For purposes of this definition, the aggregate principal amount of Swing Line Advances owing to any Swing Line Bank and of Letter of Credit Advances owing to any Issuing Bank and the Available Amount of each Letter of Credit shall be considered to be owed to the Lenders participating in the applicable Tranche to which such Swing Line Advances or Letters of Credit, as applicable, relate, ratably in accordance with their Applicable Pro Rata Shares.
“Tranche Selling Lender” has the meaning specified in Section 2.22(a).
“Transfer” means sell, lease, transfer or otherwise dispose of, or grant any option or other right to purchase, lease or otherwise acquire.
“Transfer Date” means, in relation to an assignment by a Lender pursuant to Section 9.07(a), the later of: (a) the proposed Transfer Date specified in the Assignment and Acceptance and (b) the date which is the fifth Business Day after the date of delivery of the relevant Assignment and Acceptance to the Administrative Agent, or such earlier Business Day endorsed by the Administrative Agent on such Assignment and Acceptance.
“Treasury Regulations” means the regulations promulgated by the U.S. Treasury Department under the Internal Revenue Code.
“True-Up Amount” has the meaning specified in Section 2.23.
“Type” refers to the distinction between Advances bearing interest by reference to a particular Benchmark, the Base Rate or the Canadian Prime Rate and Advances bearing interest at another such rate.
“UCC” means the Uniform Commercial Code as in effect, from time to time, in the State of New York, provided that, if perfection or the effect of perfection or non-perfection or the priority of any security interest under any Loan Document is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York or any other applicable law, “UCC” means the Uniform Commercial Code or such other applicable law as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.
“UCP” has the meaning specified in Section 2.03(g).
“UK” means the United Kingdom.
“UK Bail-In Legislation” means the United Kingdom Part I of the UK Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the UK relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“UK Borrower” means any Additional Borrower incorporated under the laws of the UK and designated as a Borrower.
“UK Borrower DTTP Filing” means an HM Revenue & Customs’ Form DTTP2 duly completed and filed by the relevant UK Borrower, which contains the scheme reference number and jurisdiction of tax residence provided by the relevant UK Treaty Lender pursuant to Section 2.12(g)(iv), and is filed with HM Revenue & Customs: (a) within 30 days of the relevant UK Treaty Lender providing its scheme reference number and jurisdiction of tax residence pursuant to Section 2.12(g)(iv); or (b) if a UK Borrower becomes a party hereunder after the date of this Agreement and the relevant UK Treaty Lender has already provided such information, within 30 days of the date on which that UK Borrower becomes a party under this Agreement.
“UK CTA” means the UK Corporation Tax Act 2009.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any Person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK ITA” means the UK Income Tax Act 2007.
“UK Qualifying Lender” means a Lender Party which is beneficially entitled to interest payable to that Lender Party in respect of an Advance to a UK Borrower under a Loan Document and is (a) a Lender Party: (i) which is a bank (as defined for the purposes of section 879 of the UK ITA) making an advance to a UK Borrower under a Loan Document; or (ii) in respect of an advance made under a Loan Document to a UK Borrower by a Person that was a bank (as defined for the purpose of section 879 of the UK ITA) at the time the advance was made, and which, with respect to (i) and (ii) above, is within the charge to UK corporation tax as regards any payment of interest made in respect of that advance or (in the case of (i) above) which is a bank (as so designated) that would be within the charge to UK corporation tax as regards any payment of interest made in respect of that advance apart from section 18A of the UK CTA; or (b) a Lender Party which is: (i) a company resident in the UK for UK tax purposes; (ii) a partnership each member of which is: (x) a company so resident in the UK; or (y) a company not so resident in the UK which carries on a trade in the UK through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the UK CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the UK CTA; or (iii) a company not so resident in the UK which carries on a trade in the UK through a permanent establishment which brings into account interest payable in respect of that advance in computing its chargeable profits (within the meaning given by section 19 of the UK CTA); or (c) a UK Treaty Lender, or a Lender Party which is a building society (as defined for the purposes of Section 880 of the UK ITA) making an advance under a Loan Document.
“UK Qualifying Non-Bank Lender” means a Lender Party in respect of a UK Borrower which gives a UK Tax Confirmation in the Assignment and Acceptance which it executes on becoming a party to this Agreement.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“UK Tax Confirmation” means a confirmation by a Lender Party in respect of a UK Borrower that the Person beneficially entitled to interest payable to that Lender Party in respect of an Advance to a UK Borrower under a Loan Document is either: (a) a company resident in the UK for UK tax purposes; (b) a partnership each member of which is: (i) a company so resident in the UK; or (ii) a company not so resident in the UK which carries on a trade in the UK through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the UK CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of
the UK CTA; or (c) a company not so resident in the UK which carries on a trade in the UK through a permanent establishment and which brings into account interest payable in respect of that advance in computing its chargeable profits (within the meaning given by section 19 of the UK CTA).
“UK Tax Deduction” means a deduction or withholding for or on account of Tax imposed by the UK from a payment by a UK Borrower under a Loan Document.
“UK Treaty Lender” means a Lender Party in respect of a UK Borrower which: (a) is treated as a resident of a jurisdiction having a double taxation agreement with the UK which makes provision for full exemption from tax imposed by the UK on interest; (b) does not carry on a business in the UK through a permanent establishment with which that Lender Party’s participation in respect of a loan to a UK Borrower is effectively connected; and (c) fulfills any conditions which must be fulfilled under that double taxation agreement to obtain full exemption from UK tax on interest payable to that Lender Party in respect of an Advance under a Loan Document (except for any such conditions that relate to the status of or any act or omission of that UK Borrower or that relate to any special relationship between a Lender Party and that UK Borrower), including the completion of any necessary procedural formalities.
“Unconsolidated Affiliate” means any Person (a) in which the Parent Guarantor or any of its Subsidiaries holds any direct or indirect Equity Interest, (b) that is not a Subsidiary of the Parent Guarantor or any of its Subsidiaries and (c) the accounts of which would not appear on the Consolidated financial statements of the Parent Guarantor.
“Unconsolidated Affiliate Assets” means, with respect to any Unconsolidated Affiliate at any time, the assets owned or leased by such Unconsolidated Affiliate at such time.
“Undisclosed Administration” means, in relation to a Lender or its direct or indirect Parent Company that is a solvent Person, the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian, or other similar official by a supervisory authority or regulator under or based on the law in the country where such Lender or such Parent Company is subject to home jurisdiction, if applicable law requires that such appointment not be disclosed.
“Unencumbered Adjusted Net Operating Income” means, for any period, without duplication, (i) the aggregate Adjusted Net Operating Income for all Unencumbered Assets plus (ii) Allowed Unconsolidated Affiliate Earnings that are not subject to any Lien; provided, however, that the portion of the Unencumbered Adjusted Net Operating Income attributable to Allowed Unconsolidated Affiliate Earnings shall not exceed 15%.
“Unencumbered Asset Conditions” means, with respect to any Asset, that such Asset is (a) a Technology Asset, Development Asset or Redevelopment Asset, (b)(i) wholly owned in fee simple absolute (or the equivalent thereof in the jurisdiction in which the applicable Asset is located), (ii) subject to a Qualifying Ground Lease or (iii) a Leased Asset, (c) not subject to any Lien (other than Permitted Liens) or any Negative Pledge, and (d) owned or leased directly by the Operating Partnership, a Wholly-Owned Subsidiary or a Controlled Joint Venture, the direct and indirect Equity interests in which are not subject to any Lien (other than Permitted Liens) or any Negative Pledge.
“Unencumbered Assets” means only those Assets that satisfy the Unencumbered Asset Conditions, including those Assets listed on the schedule of Unencumbered Assets delivered to the Administrative Agent as of the Closing Date (as updated from time to time pursuant to Section 5.03(e)).
“Unencumbered Assets Certificate” means a certificate in substantially the form of Exhibit E hereto, duly certified by the Chief Financial Officer or other Responsible Officer of the Parent Guarantor.
“Unencumbered Assets Debt Service Coverage Ratio” means, at any date of determination, the ratio of (a) the aggregate Unencumbered Adjusted Net Operating Income to (b) interest (including capitalized interest) paid or payable in cash on all Debt for Borrowed Money that is Unsecured Debt of the Parent Guarantor and its Subsidiaries for the four-fiscal quarter period of the Parent Guarantor most
recently ended for which financial statements are required to be delivered to the Administrative Agent pursuant to Section 5.03(b) or (d), as the case may be, determined on a Consolidated basis for such period.
“Unsecured Debt” means, at any date of determination, the amount at such time of all Consolidated Debt of the Parent Guarantor and its Subsidiaries, including, without limitation, the Facility Exposure, but exclusive of (a) Consolidated Secured Debt and (b) guarantee obligations in respect of Consolidated Secured Debt.
“Unused Australian Revolving Credit Commitment” means, with respect to any Lender with an Australian Dollar Revolving Credit Commitment at any time, (a) such Lender’s Australian Dollar Revolving Credit Commitment at such time minus (b) the sum, without duplication, of (i) the aggregate principal amount of all Australian Dollar Revolving Credit Advances, Swing Line Advances under the Australian Swing Line Facility and Letter of Credit Advances under the Australian Letter of Credit Facility made by such Lender (in its capacity as a Lender) and outstanding at such time plus (ii) such Lender’s Australian Dollar Revolving Credit Pro Rata Share of (A) the aggregate Available Amount of all Letters of Credit under the Australian Letter of Credit Facility outstanding at such time, (B) the aggregate principal amount of all Letter of Credit Advances under the Australian Letter of Credit Facility made by the applicable Issuing Bank pursuant to Section 2.03(c) and outstanding at such time and (C) the aggregate principal amount of all Swing Line Advances under the Australian Swing Line Facility made by the applicable Swing Line Bank pursuant to Section 2.01(c) and outstanding at such time.
“Unused IDR Revolving Credit Commitment” means, with respect to any Lender with an IDR Revolving Credit Commitment at any time, (a) such Lender’s IDR Revolving Credit Commitment at such time minus (b) the sum, without duplication, of (i) the aggregate principal amount of all IDR Revolving Credit Advances and Letter of Credit Advances under the IDR Letter of Credit Facility made by such Lender (in its capacity as a Lender) and outstanding at such time plus (ii) such Lender’s IDR Revolving Credit Pro Rata Share of (A) the aggregate Available Amount of all Letters of Credit under the IDR Letter of Credit Facility outstanding at such time and (B) the aggregate principal amount of all Letter of Credit Advances under the IDR Letter of Credit Facility made by the applicable Issuing Bank pursuant to Section 2.03(c) and outstanding at such time.
“Unused KRW-A Revolving Credit Commitment” means, with respect to any Lender with a KRW-A Revolving Credit Commitment at any time, (a) such Lender’s KRW-A Revolving Credit Commitment at such time minus (b) the sum, without duplication, of (i) the aggregate principal amount of all KRW-A Revolving Credit Advances, Swing Line Advances under the KRW-A Swing Line Facility and Letter of Credit Advances under the KRW-A Letter of Credit Facility made by such Lender (in its capacity as a Lender) and outstanding at such time plus (ii) such Lender’s KRW-A Revolving Credit Pro Rata Share of (A) the aggregate Available Amount of all Letters of Credit under the KRW-A Letter of Credit Facility outstanding at such time, (B) the aggregate principal amount of all Letter of Credit Advances under the KRW-A Letter of Credit Facility made by the applicable Issuing Bank pursuant to Section 2.03(c) and outstanding at such time and (C) the aggregate principal amount of all Swing Line Advances under the KRW-A Swing Line Facility made by the applicable Swing Line Bank pursuant to Section 2.01(c) and outstanding at such time.
“Unused KRW-B Revolving Credit Commitment” means, with respect to any Lender with a KRW-B Revolving Credit Commitment at any time, (a) such Lender’s KRW-B Revolving Credit Commitment at such time minus (b) the sum, without duplication, of (i) the aggregate principal amount of all KRW-B Revolving Credit Advances, Swing Line Advances under the KRW-B Swing Line Facility and Letter of Credit Advances under the KRW-B Letter of Credit Facility made by such Lender (in its capacity as a Lender) and outstanding at such time plus (ii) such Lender’s KRW-B Revolving Credit Pro Rata Share of (A) the aggregate Available Amount of all Letters of Credit under the KRW-B Letter of Credit Facility outstanding at such time, (B) the aggregate principal amount of all Letter of Credit Advances under the KRW-B Letter of Credit Facility made by the applicable Issuing Bank pursuant to Section 2.03(c) and outstanding at such time and (C) the aggregate principal amount of all Swing Line
Advances under the KRW-B Swing Line Facility made by the applicable Swing Line Bank pursuant to Section 2.01(c) and outstanding at such time.
“Unused Multicurrency Revolving Credit Commitment” means, with respect to any Lender with a Multicurrency Revolving Credit Commitment at any time, (a) such Lender’s Multicurrency Revolving Credit Commitment at such time minus (b) the sum, without duplication, of (i) the aggregate principal amount (denominated in Dollars (including, if applicable, the Equivalent in Dollars of any amounts that are not Dollar denominated)) of all Multicurrency Revolving Credit Advances, Swing Line Advances under the Multicurrency Swing Line Facility and Letter of Credit Advances under the Multicurrency Letter of Credit Facility made by such Lender (in its capacity as a Lender) and outstanding at such time plus (ii) such Lender’s Multicurrency Revolving Credit Pro Rata Share of (A) the aggregate Available Amount (denominated in Dollars (including, if applicable, the Equivalent in Dollars of any amounts that are not Dollar denominated)) of all Letters of Credit under the Multicurrency Letter of Credit Facility outstanding at such time, (B) the aggregate principal amount (denominated in Dollars (including, if applicable, the Equivalent in Dollars of any amounts that are not Dollar denominated)) of all Letter of Credit Advances under the Multicurrency Letter of Credit Facility made by the applicable Issuing Bank pursuant to Section 2.03(c) and outstanding at such time and (C) the aggregate principal amount (denominated in Dollars (including, if applicable, the Equivalent in Dollars of any amounts that are not Dollar denominated)) of all Swing Line Advances under the Multicurrency Swing Line Facility made by the applicable Swing Line Bank pursuant to Section 2.01(c) and outstanding at such time.
“Unused Revolving Credit Commitment” means, with respect to any Lender at any time, the sum of such Lender’s (a) Unused U.S. Dollar Revolving Credit Commitment at such time, (b) Unused Multicurrency Revolving Credit Commitment at such time, (c) Unused IDR Revolving Credit Commitment at such time, (d) Unused KRW-A Revolving Credit Commitment at such time, (e) Unused KRW-B Revolving Credit Commitment at such time, (f) Unused Australian Revolving Credit Commitment at such time, (g) Unused Singapore Revolving Credit Commitment at such time and (h) Unused Supplemental Tranche Commitments, if any, at such time.
“Unused Singapore Revolving Credit Commitment” means, with respect to any Lender with a Singapore Dollar Revolving Credit Commitment at any time, (a) such Lender’s Singapore Dollar Revolving Credit Commitment at such time minus (b) the sum, without duplication, of (i) the aggregate principal amount of all Singapore Dollar Revolving Credit Advances, Swing Line Advances under the Singapore Swing Line Facility and Letter of Credit Advances under the Singapore Letter of Credit Facility made by such Lender (in its capacity as a Lender) and outstanding at such time plus (ii) such Lender’s Singapore Dollar Revolving Credit Pro Rata Share of (A) the aggregate Available Amount of all Letters of Credit under the Singapore Letter of Credit Facility outstanding at such time, (B) the aggregate principal amount of all Letter of Credit Advances under the Singapore Letter of Credit Facility made by the applicable Issuing Bank pursuant to Section 2.03(c) and outstanding at such time and (C) the aggregate principal amount of all Swing Line Advances under the Singapore Swing Line Facility made by the applicable Swing Line Bank pursuant to Section 2.01(c) and outstanding at such time.
“Unused Supplemental Tranche Commitment” means, with respect to any Lender with one or more Supplemental Tranche Commitments at any time, (a) such Lender’s Supplemental Tranche Commitment at such time with respect to the applicable Supplemental Tranche minus (b) the aggregate principal amount of all Supplemental Tranche Advances under such Supplemental Tranche made by such Lender (in its capacity as a Lender) and outstanding at such time.
“Unused U.S. Dollar Revolving Credit Commitment” means, with respect to any Lender with a U.S. Dollar Revolving Credit Commitment at any time, (a) such Lender’s U.S. Dollar Revolving Credit Commitment at such time minus (b) the sum, without duplication, of (i) the aggregate principal amount of all U.S. Dollar Revolving Credit Advances, Swing Line Advances under the U.S. Dollar Swing Line Facility and Letter of Credit Advances under the U.S. Dollar Letter of Credit Facility made by such Lender (in its capacity as a Lender) and outstanding at such time plus (ii) such Lender’s U.S. Dollar
Revolving Credit Pro Rata Share of (A) the aggregate Available Amount of all Letters of Credit under the U.S. Dollar Letter of Credit Facility outstanding at such time, (B) the aggregate principal amount of all Letter of Credit Advances under the U.S. Dollar Letter of Credit Facility made by the applicable Issuing Bank pursuant to Section 2.03(c) and outstanding at such time and (C) the aggregate principal amount of all Swing Line Advances under the U.S. Dollar Swing Line Facility made by the applicable Swing Line Bank pursuant to Section 2.01(c) and outstanding at such time.
“Up-stream Guaranty” has the meaning specified in Section 7.09(g).
“U.S. Borrower” means the Operating Partnership, Digital US Finco and each Additional Borrower that is designated as a Borrower with respect to the U.S. Dollar Revolving Credit Tranche or any Subfacility of the U.S. Dollar Revolving Credit Tranche.
“U.S. Dollar Issuing Bank” means Bank of America, N.A. (or any Affiliate thereof), and any other Lender approved as a U.S. Dollar Issuing Bank by the Administrative Agent and the Borrower and any Eligible Assignee to which a U.S. Dollar Letter of Credit Commitment hereunder has been assigned pursuant to Section 9.07 so long as each such Lender or each such Eligible Assignee expressly agrees to perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a U.S. Dollar Issuing Bank and notifies the Administrative Agent of its Applicable Lending Office and the amount of its U.S. Dollar Letter of Credit Commitment (which information shall be recorded by the Administrative Agent in the Register) for so long as Citibank, N.A., such Lender or such Eligible Assignee, as the case may be, shall have a U.S. Dollar Letter of Credit Commitment.
“U.S. Dollar Lender Party” means any U.S. Dollar Revolving Lender, the Swing Line Bank under the U.S. Dollar Swing Line Facility or a U.S. Dollar Issuing Bank.
“U.S. Dollar Letter of Credit Commitment” means, with respect to any U.S. Dollar Issuing Bank at any time, the amount set forth opposite such U.S. Dollar Issuing Bank’s name on Schedule I hereto under the caption “U.S. Dollar Letter of Credit Commitment” or, if such U.S. Dollar Issuing Bank has entered into one or more Assignment and Acceptances, set forth for such U.S. Dollar Issuing Bank in the Register maintained by the Administrative Agent pursuant to Section 9.07(d) as such U.S. Dollar Issuing Bank’s “U.S. Dollar Letter of Credit Commitment”, as such amount may be reduced at or prior to such time pursuant to Section 2.05 or 2.19 or increased pursuant to Section 2.19.
“U.S. Dollar Letter of Credit Facility” means, at any time, an amount equal to the lesser of (a) the aggregate amount of the U.S. Dollar Issuing Banks’ Letter of Credit Commitments at such time, and (b) $100,000,000, as such amount may be reduced at or prior to such time pursuant to Section 2.05. The U.S. Dollar Letter of Credit Facility shall be a Subfacility of the U.S. Dollar Revolving Credit Tranche.
“U.S. Dollar Letters of Credit” has the meaning specified in Section 2.01(b).
“U.S. Dollar Revolving Credit Advance” has the meaning specified in Section 2.01(a)(i).
“U.S. Dollar Revolving Credit Commitment” means, (a) with respect to any Lender at any time, the amount set forth opposite such Lender’s name on Schedule I hereto under the caption “U.S. Dollar Revolving Credit Commitment” or (b) if such Lender has entered into one or more Assignment and Acceptances or Lender Accession Agreements, set forth for such Lender in the Register maintained by the Administrative Agent pursuant to Section 9.07(d) as such Lender’s “U.S. Dollar Revolving Credit Commitment”, as such amount may be reduced at or prior to such time pursuant to Section 2.05 or 2.19 or increased pursuant to Section 2.18 or 2.19.
“U.S. Dollar Revolving Credit Pro Rata Share” of any amount means, with respect to any Lender at any time, the product of such amount times a fraction the numerator of which is the amount of such Lender’s U.S. Dollar Revolving Credit Commitment at such time (or, if the Commitments shall have been terminated pursuant to Section 2.05 or 6.01, such Lender’s Facility Exposure with respect to the
U.S. Dollar Revolving Credit Tranche at such time) and the denominator of which is the U.S. Dollar Revolving Credit Tranche at such time (or, if the Commitments shall have been terminated pursuant to Section 2.05 or 6.01, the total Facility Exposure with respect to the U.S. Dollar Revolving Credit Tranche at such time).
“U.S. Dollar Revolving Credit Tranche” means, at any time, the aggregate amount of the Lenders’ U.S. Dollar Revolving Credit Commitments at such time.
“U.S. Dollar Revolving Lender” means any Person that is a Lender hereunder in respect of the U.S. Dollar Revolving Credit Tranche in its capacity as a Lender in respect of such Tranche.
“U.S. Dollar Swing Line Facility” means, at any time, an amount equal to the lesser of (a) the aggregate amount of the Swing Line Commitments relating to the Dollar denominated Swing Line Facility at such time, and (b) $75,000,000, as such amount may be reduced at or prior to such time pursuant to Section 2.05. The U.S. Dollar Swing Line Facility shall be a Subfacility of the U.S. Dollar Revolving Credit Tranche.
“U.S. Dollar Tranche Lending Office” means, with respect to any Lender Party, the office of such Lender Party specified as its “U.S. Dollar Tranche Lending Office” opposite its name on Schedule I hereto or in the Assignment and Acceptance or Lender Accession Agreement pursuant to which it became a Lender Party, or such other office of such Lender Party as such Lender Party may from time to time specify to the Borrowers and the Administrative Agent.
“U.S. Government Securities Business Day” means any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“U.S. Special Resolution Regimes” has the meaning specified in Section 9.21.
“Voting Interests” means shares of capital stock issued by a corporation, or equivalent Equity Interests in any other Person, the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even if the right so to vote has been suspended by the happening of such a contingency.
“Wholly-Owned Foreign Subsidiary” means a Foreign Subsidiary that is a Wholly-Owned Subsidiary.
“Wholly-Owned Subsidiary” means a Subsidiary of the Operating Partnership where one-hundred percent (100%) of all of the Equity Interests (other than directors’ qualifying shares) and voting interests of such Subsidiary are owned directly or indirectly by the Operating Partnership.
“Withdrawal Liability” has the meaning specified in Part I of Subtitle E of Title IV of ERISA.
“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) in relation to the UK Bail-In Legislation, any powers under that UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that UK Bail-In Legislation that are related to or ancillary to any of those powers.
“Yen” and “¥” each means the lawful currency of Japan.
simultaneously by the Lenders with U.S. Dollar Revolving Credit Commitments ratably according to their U.S. Dollar Revolving Credit Commitments. Within the limits of each Lender’s Unused U.S. Dollar Revolving Credit Commitment in effect from time to time and prior to the Termination Date, the U.S. Borrowers may borrow under this Section 2.01(a)(i), prepay pursuant to Section 2.06(a) and reborrow under this Section 2.01(a)(i). All U.S. Dollar Revolving Credit Advances shall be Floating Rate Advances, Base Rate Advances or Daily RFR Advances, as applicable.
Credit Tranche, the Notice of Borrowing shall specify the maturity of such Borrowing and the purpose of such Borrowing and in the case of a Borrowing under the KRW-B Revolving Credit Tranche with respect to Korean Capital Expenditures, the Notice of Borrowing shall be delivered together with any applicable Korean Capital Expenditures Documentation. Each Lender with a Commitment in respect of the applicable Tranche shall, before the applicable Funding Deadline make available for the account of its Applicable Lending Office to the Administrative Agent at the applicable Administrative Agent’s Account, in same day funds, such Lender’s ratable portion of such Borrowing in accordance with the respective Commitments of such Lender and the other Lenders in respect of the applicable Tranche. After the Administrative Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will make such funds available to the applicable Borrower by crediting the Borrower’s Account; provided, however, that for each Borrowing, if requested by the applicable Borrower in its Notice of Borrowing, the Administrative Agent shall first make a portion of such funds equal to the aggregate principal amount of any Swing Line Advances made by the applicable Swing Line Bank and by any other Lender and outstanding on the date of such Borrowing, plus interest accrued and unpaid thereon to and as of such date, available to the applicable Swing Line Bank and such other Lenders for repayment of such Swing Line Advances.
For the avoidance of doubt, any Advance that is prepaid on the same day that it was made shall accrue interest for such day.
Notwithstanding anything to the contrary herein or in any other Loan Document (and any Guaranteed Hedge Agreement shall be deemed not to be a “Loan Document” for purposes of this Section 2.07(f)):
As used in this Section titled “Benchmark Replacement Setting”:
“Available Tenor” means, as of any date of determination and with respect to any then-current Benchmark for any currency, as applicable, (x) if any then-current Benchmark is a term rate, any tenor for such Benchmark that is or may be used for determining the length of an Interest Period or (y) otherwise, any payment period for interest calculated with reference to such Benchmark, as applicable, pursuant to this Agreement as of such date.
“Benchmark Replacement” means, for any Available Tenor,
the sum of (i) the alternate benchmark rate and (ii) an adjustment (which may be a positive or negative value or zero), in each case, that has been selected by the Administrative Agent and the Borrowers as the replacement for such Available Tenor of such Benchmark giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by the Relevant Governmental Body, for syndicated credit facilities at such time denominated in the applicable currency in the U.S. syndicated loan market; provided, however, that, if the Benchmark Replacement as determined pursuant to clause (a) or (b) above would be less than the applicable Floor, the Benchmark Replacement will be deemed to be the applicable Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, the formula for calculating any successor rates identified pursuant to the definition of “Benchmark Replacement”, the formula, methodology or convention for applying the successor Floor to the successor Benchmark Replacement and other technical, administrative or operational matters) that the Administrative Agent decides (in consultation with the Borrowers) may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Benchmark Transition Event” means, with respect to any then-current Benchmark, the occurrence of one or more of the following events: a public statement or publication of information by or on behalf of the administrator of any then-current Benchmark, the regulatory supervisor for the administrator of such Benchmark, the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of New York, the central bank for the currency applicable to such Benchmark, an insolvency official with jurisdiction over the administrator for such Benchmark, a resolution authority with jurisdiction over the administrator for such Benchmark or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark, announcing or stating that (a) such administrator has ceased or will cease on a specified date to provide all Available Tenors of such Benchmark, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark or (b) all Available Tenors of such Benchmark are or will no longer be representative and that representativeness will not be restored.
“Relevant Governmental Body” means (a) with respect to a Benchmark Replacement in respect of Dollars, the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto and (b) with respect to a Benchmark Replacement in respect of any Committed Foreign Currency, (1) the central bank for the currency in which such amounts are denominated hereunder or any central bank or other supervisor which is responsible for supervising either (A) such Benchmark Replacement or (B) the administrator of such Benchmark Replacement or (2) any working group or committee officially endorsed or convened by (A) the central bank for the currency in which such amounts are denominated, (B) any central bank or other supervisor that is responsible for supervising either (i) such Benchmark Replacement or (ii) the administrator of such Benchmark Replacement, (C) a group of those central banks or other supervisors or (D) the Financial Stability Board or any part thereof.
. (h) Facility Fees. With respect to each Tranche, subject to the Sustainability Facility Fee Adjustment, the Borrowers shall pay to the Administrative Agent for the account of the Lenders in the applicable Tranche a facility fee (each, a “Facility Fee”) in the Primary Currency of the applicable Tranche equal to the Applicable Margin for Facility Fees times the actual daily amount of the Commitments for such Tranche regardless of usage (or, if the Commitments for such Tranche have terminated, on the Facility Exposure for such Tranche). Each Facility Fee shall accrue at all times from the date hereof in the case of each Initial Lender, from the Supplemental Tranche Effective Date with respect to the initial Lenders holding a Supplemental Tranche Commitment with respect to any Supplemental Tranche and from the Transfer Date applicable to the Assignment and Acceptance or the effective date specified in the Lender Accession Agreement, as the case may be, pursuant to which it became a Lender under the applicable Tranche in the case of each other Lender until the Termination Date. Each Facility Fee shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the Closing Date, and on the Termination Date (and, if applicable, thereafter on demand). Each Facility Fee shall be calculated quarterly in arrears, and if there is any change in the Applicable Margin during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Margin separately for each period during such quarter that such Applicable Margin was in effect.
due and payable to the assignor Lender without further interest accruing on them on the last day of the current Interest Period (or, if the Interest Period is longer than six calendar months, on the next of the dates which falls at six monthly intervals after the first day of that Interest Period) and (B) the rights assigned or transferred by the assignor Lender will not include the right to the Accrued Amounts so that, for the avoidance of doubt: (1) when the Accrued Amounts become payable, those Accrued Amounts will be payable for the account of the assignor Lender and (2) the amount payable to the assignee Lender on that date will be the amount which would, but for the application of this Section 2.11(a), have been payable to it on that date, but after deduction of the Accrued Amounts.
measured by its net income (and franchise or other similar Taxes imposed in lieu thereof) (A) by the state or foreign jurisdiction under the laws of which such Lender Party or the Administrative Agent, as the case may be, is organized or any political subdivision thereof or, other than solely as a result of making Advances hereunder, the jurisdiction (or jurisdictions) in which it is otherwise conducting business or in which it is treated as resident for Tax purposes or (B) that are Other Connection Taxes and, in the case of each Lender Party, Taxes that are imposed on or measured by its net income (and franchise or other similar Taxes imposed in lieu thereof) by the state or foreign jurisdiction of such Lender Party’s Applicable Lending Office or any political subdivision thereof, (ii) any withholding Tax imposed by the United States or any other jurisdiction on (x) amounts payable to the Administrative Agent in its capacity as Administrative Agent, for its own account, pursuant to a law in effect on the date the Administrative Agent becomes the Administrative Agent or (y) amounts payable to or for the account of any Lender Party, with respect to any Tranche, pursuant to a law in effect on the date such Lender Party initially acquires an interest in an Advance in such Tranche (other than pursuant to a transfer of rights and obligations under Section 2.10(g)) or such Lender Party designates a new Applicable Lending Office, except in each case to the extent that, pursuant to this Section 2.12(a) or Section 2.12(e), additional amounts with respect to such Tax were payable to the Administrative Agent’s assignor immediately before the Administrative Agent became the Administrative Agent or to such Lender Party’s assignor immediately before such Lender Party, with respect to any Tranche, initially acquired an interest in an Advance in such Tranche or to such Lender Party immediately before it changed its Applicable Lending Office, (iii) any Tax attributable to any Lender Party’s or the Administrative Agent’s failure or inability (other than any inability as a result of a change in law) to comply with Section 2.12(g), (iv) any Taxes required to be withheld as a result of a direction or notice under section 260-5 of the Australian Tax Act or section 255 of the Australian Tax Act, (v) any Tax imposed pursuant to Sections 1471 through 1474 of the Internal Revenue Code as of the date hereof (or any amended or successor version that is substantively comparable), including any current or future implementing Treasury Regulations and administrative pronouncements thereunder and any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code, and any intergovernmental agreement, treaty or convention among Applicable Governmental Authorities entered into in connection with the implementation of such sections of the Internal Revenue Code and any fiscal or regulatory legislation, rules, or official administrative practices adopted pursuant to such intergovernmental agreement (collectively, “FATCA”), (vi) any Bank Levy, (vii) any Dutch Tax that arises as a result of any Lender Party having a substantial interest (aanmerkelijk belang) as defined in the Dutch Income Tax Act 2001 (Wet inkomstenbelasting 2001) in a Dutch Borrower, and (viii) any Tax imposed under the Dutch Withholding Tax Act 2021 (Wet bronbelasting 2021) (all such excluded Taxes in respect of payments hereunder or under the Notes being referred to as “Excluded Taxes”, and all Taxes other than Other Taxes and Excluded Taxes in respect of payments hereunder or under the Notes being referred to as “Indemnified Taxes”). If any Borrower or the Administrative Agent shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder or under any Note to any Lender Party or the Administrative Agent, as the case may be, (i) subject to Sections 2.12(b) and 2.12(c) below, to the extent such Taxes are Indemnified Taxes, an additional amount shall be payable by such Borrower as may be necessary so that after such Borrower and the Administrative Agent have made all required deductions (including deductions applicable to additional sums payable under this Section 2.12) such Lender Party or the Administrative Agent, as the case may be, receives an amount equal to the sum it would have received had no such deductions been made, (ii) such Borrower or the Administrative Agent, as the case may be, shall make all such deductions and (iii) such Borrower or the Administrative Agent, as the case may be, shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law.
provided that the exclusion for changes after the date a Lender became a Lender under this Agreement pursuant to Section 2.12(c)(i) shall not apply in respect of any French Tax Deduction on a payment made to a Lender if such French Tax Deduction is imposed solely because this payment is made to an account opened in the name of or for the benefit of that Lender in a financial institution situated in a Non-Cooperative Jurisdiction.
such Lender Party in a principal amount equal to the Revolving Credit Commitment of such Lender Party. All references to Notes in the Loan Documents shall mean Notes, if any, to the extent issued hereunder. In the event and to the extent that the provisions of any Note shall conflict with this Agreement, the provisions of this Agreement shall govern.
On each Increase Date, upon fulfillment of the conditions set forth in the immediately preceding sentence of this Section 2.18(d), the Administrative Agent shall provide reasonable prior notice to the Lenders (including, without limitation, each Acceding Lender) and the Borrowers, by email of the occurrence of the Commitment Increase to be effected on such Increase Date and shall record in the Register the relevant information with respect to each Increasing Lender and each Acceding Lender on such date.
Adverse Effect, in which case such representations and warranties shall be true and correct in all respects) as though made on and as of the Reallocation Date (except to the extent that such representations and warranties relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects or all respects, as applicable, on and as of such earlier date)) and (y) no Default or Event of Default has occurred and is continuing or would result from such Reallocation, (iv) immediately after giving effect to such Reallocation, in no event shall the aggregate principal amount (expressed in the Primary Currency of the applicable Tranche and including the Equivalent in such Primary Currency at such time of any amounts denominated in a Committed Foreign Currency other than such Primary Currency) of the Advances under any Tranche outstanding at such time plus the Available Amount (expressed in the Primary Currency of the applicable Tranche and including the Equivalent in such Primary Currency at such time of any amounts denominated in a Committed Foreign Currency other than such Primary Currency) of all outstanding Letters of Credit with respect to such Tranche at such time exceed the Revolving Credit Commitments with respect to such Tranche at such time. The Reallocation Notice shall (x) specify (1) the proposed aggregate amount of such Reallocation (the “Total Reallocation Amount”), (2) the aggregate amount of any proposed Subfacility Reallocation, (3) the Tranche or Tranches and Subfacility or Subfacilities (if any) being increased (each, an “Increasing Tranche” or an “Increasing Subfacility”, as the case may be), (4) the Tranche or Tranches and Subfacility or Subfacilities (if any) being decreased (each, a “Decreasing Tranche” or a “Decreasing Subfacility”, as the case may be), and (5) the proposed Reallocation Date and (y) contain a certification signed by a Responsible Officer of the Operating Partnership stating that all of the requirements set forth in this Section 2.19(a) have been satisfied or, as of the Reallocation Date, will be satisfied.
Request shall be made in the form of an addendum substantially in the form of Exhibit G (a “Supplemental Addendum”) and sent to the Administrative Agent and shall set forth (i) the proposed currency of such Supplemental Tranche, (ii) the proposed existing Borrower or Borrowers and/or the proposed Additional Borrower or Additional Borrowers that will be the proposed Supplemental Borrower with respect to the Supplemental Tranche, (iii) the proposed interest types and rates for such Supplemental Tranche, (iv) the other matters set forth on the form of Supplemental Addendum, and (v) any other specific terms of such Supplemental Tranche that the Borrowers deem necessary, provided that the maturity date of any Advance under any Supplemental Tranche shall not be later than the Termination Date. As a condition precedent to the addition of a Supplemental Tranche to this Agreement: (i) each Lender providing a Supplemental Tranche Commitment with respect to the applicable Supplemental Tranche must be able to make Advances in the Supplemental Currency in accordance with applicable laws and regulations; (ii) each Lender providing a Supplemental Tranche Commitment with respect to such Supplemental Tranche and the Administrative Agent must execute the requested Supplemental Addendum; (iii) each of the proposed Supplemental Borrowers under such Supplemental Tranche shall be an existing Borrower or an Additional Borrower with regard to such Supplemental Tranche and each such Supplemental Borrower and each other Loan Party shall execute the Supplemental Addendum, and (iv) any other documents or certificates that shall be reasonably requested by the Administrative Agent in connection with the addition of the Supplemental Tranche shall have been delivered to the Administrative Agent in form and substance reasonably satisfactory to the Administrative Agent. Subject to the provisions of Sections 2.18 and 2.19 and this Section 2.20, each Supplemental Tranche shall be committed to by Lenders pursuant to (x) an increase in Commitments pursuant to Section 2.18 or (y) Reallocations of Unused Revolving Credit Commitments to the applicable Supplemental Tranche pursuant to Section 2.19. No Lender shall be obligated to make a Supplemental Tranche Commitment and a Lender may agree to do so in its sole discretion. For avoidance of doubt, each Lender’s sole right to approve or consent to any Supplemental Tranche Commitment shall be its right to determine whether to participate, or not to participate, in any Supplemental Tranche Commitment in its sole discretion as provided in this Section 2.20. If a Supplemental Tranche Request is accepted in accordance with this Section 2.20, the Administrative Agent and the applicable Borrower shall determine the effective date of such Supplemental Tranche (the “Supplemental Tranche Effective Date”), the final allocation of such Supplemental Tranche and any other terms of such Supplemental Tranche. The Administrative Agent shall promptly distribute a revised Schedule I to each Lender reflecting such new Supplemental Tranche and notify each Lender of the Supplemental Tranche Effective Date. Promptly after a Supplemental Tranche Request, if the Administrative Agent cannot act as the funding agent therefor, the Operating Partnership shall, subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld or delayed) appoint the proposed funding agent for the requested Supplemental Tranche. Each such funding agent shall (A) execute the applicable Supplemental Addendum and (B) administer the applicable Supplemental Tranche and, in connection therewith, shall have authority consistent with the authority of the Administrative Agent hereunder in respect of the Administrative Agent’s administration of the Facility; provided, however, that no such funding agent shall be authorized to take any enforcement action unless and except to the extent expressly authorized in writing by the Administrative Agent. Each such funding agent shall entitled to the benefits of Section 9.04 to the same extent as the Administrative Agent.
To the extent any calculations described in Sections 5.04(a) or 5.04(b) are required to be made on any date of determination other than the last day of a fiscal quarter of the Parent Guarantor, such calculations shall be made on a pro forma basis to account for any acquisitions, dispositions or reclassifications of Assets, and the incurrence or repayment of any Debt for Borrowed Money relating to such Assets, that have occurred since the last day of the fiscal quarter of the Parent Guarantor most recently ended. All such calculations shall be reasonably acceptable to the Administrative Agent.
then, and in any such event, the Administrative Agent (i) shall at the request, or may with the consent, of the Required Lenders, by written notice to the Borrowers, declare the Commitments of each Lender Party and the obligation of each Lender Party to make Advances (other than Letter of Credit Advances by an Issuing Bank or a Lender pursuant to Section 2.03(c) and Swing Line Advances by a Lender pursuant to Section 2.02(b)) and of each Issuing Bank to issue Letters of Credit to be terminated, whereupon the same shall forthwith terminate, (ii) shall at the request, or may with the consent, of the Required Lenders, (A) by written notice to the Borrowers, declare the Notes, the Advances, all interest thereon and all other amounts payable under this Agreement and the other Loan Documents (other than Guaranteed Hedge Agreements, for which the terms of such agreements shall govern and control) to be forthwith due and payable, whereupon the Notes, all such interest and all such amounts shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrowers and (B) by notice to each party required under the terms of any agreement in support of which a Letter of Credit is issued, request that all Obligations under such agreement be declared to be due and payable and (iii) shall at the request, or may with the consent of the Required Lenders, proceed to enforce its rights and remedies under the Loan Documents for the ratable benefit of the Lenders by appropriate proceedings; provided, however, that in the event of an actual or deemed entry of an order for relief with respect to any Loan Party under any Bankruptcy Law, (y) the Commitments of each Lender Party and the obligation of each Lender Party to make Advances (other than Letter of Credit Advances by an Issuing Bank or a Lender pursuant to Section 2.03(c) and Swing Line Advances by a Lender pursuant to Section 2.02(b)) and of each Issuing Bank to issue Letters of Credit shall automatically be terminated and (z) the Notes, all such interest and all such amounts shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by the Loan Parties.
Amount of all Letters of Credit, the Borrowers shall, forthwith upon demand by the Administrative Agent, pay to the Administrative Agent, as additional funds to be deposited and held in the L/C Cash Collateral Account, an amount equal to the excess of (a) such aggregate Available Amount over (b) the total amount of funds, if any, then held in the L/C Cash Collateral Account that the Administrative Agent, as the case may be, determines to be free and clear of any such right and claim. Upon the drawing of any Letter of Credit for which funds are on deposit in the L/C Cash Collateral Account, such funds shall be applied to reimburse the relevant Issuing Bank or Lenders, as applicable, to the extent permitted by applicable law.
This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by any Secured Party upon the insolvency, bankruptcy or reorganization of any Borrower or any other Loan Party or otherwise, all as though such payment had not been made.
in cash, all Letters of Credit shall have expired or been terminated, all Guaranteed Hedge Agreements shall have expired or been terminated and the Commitments shall have expired or been terminated. If any amount shall be paid to any Guarantor in violation of the immediately preceding sentence at any time prior to the latest of (a) the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Guaranty, (b) the Termination Date and (c) the latest date of expiration or termination of all Letters of Credit and all Guaranteed Hedge Agreements, such amount shall be received and held in trust for the benefit of the Secured Parties, shall be segregated from other property and funds of such Guarantor and shall forthwith be paid or delivered to the Administrative Agent in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations and all other amounts payable under this Guaranty, whether matured or unmatured, in accordance with the terms of the Loan Documents. If (i) any Guarantor shall make payment to any Secured Party of all or any part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other amounts payable under this Guaranty shall have been paid in full in cash, (iii) the Termination Date shall have occurred and (iv) all Letters of Credit and all Guaranteed Hedge Agreements shall have expired or been terminated, the Administrative Agent and the other Secured Parties will, at such Guarantor’s request and expense, execute and deliver to such Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to such Guarantor of an interest in the Guaranteed Obligations resulting from such payment made by such Guarantor pursuant to this Guaranty.
on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to the Administrative Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto. As to any matters not expressly provided for by the Loan Documents (including, without limitation, enforcement or collection of the Notes, the Advances and the Obligations), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Required Lenders, and such instructions shall be binding upon all Lender Parties; provided, however, that the Administrative Agent shall not be required to take any action that exposes it to personal liability or that is contrary to this Agreement or applicable law or regulations. The Administrative Agent agrees to give to each Lender Party prompt notice of each notice given to it by any Borrower pursuant to the terms of this Agreement. Notwithstanding anything to the contrary in any Loan Document, no Person identified as a syndication agent, co-sustainability structuring agent, joint lead arranger or joint bookrunner, in such Person’s capacity as such, shall have any obligations or duties to any Loan Party, the Administrative Agent or any other Secured Party under any of such Loan Documents.
Agent shall not be responsible for the acts or omissions of its delegates or agents or for supervising them; provided, however, that nothing in this sentence shall absolve the Administrative Agent for any liability found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from the Administrative Agent’s gross negligence or willful misconduct. The Borrowers shall not commence any proceeding against any of the Administrative Agent’s directors, officers or employees with respect to the Administrative Agent’s acts or omissions relating to the Facility or the Loan Documents.
costs and expenses by the Borrowers. In the case of any investigation, litigation or proceeding giving rise to any Indemnified Costs, this Section 8.05 applies whether any such investigation, litigation or proceeding is brought by any Lender Party or any other Person. To the extent that the Administrative Agent shall perform any of its duties or obligations hereunder through an Affiliate or sub-agent, then all references to the “Administrative Agent” in this Section 8.05 shall be deemed to include any such Affiliate or sub-agent, as applicable.
For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 8.08(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 8.08(a) or on whether or not an Erroneous Payment has been made.
Section 2.19 or Section 2.21(a)), or any fees or other amounts payable hereunder to any Lender (other than as provided in Section 2.07(d) or (f)), in each case without the consent of such Lender (except as provided in Section 2.23), (viii) postpone any date fixed for any payment of principal of, or interest on, the Advances or any fees or other amounts payable hereunder to any Lender in each case without the consent of such Lender (other than as provided in Section 2.07(d) or (f)), (ix) extend the Termination Date without the consent of each affected Lender (and for the avoidance of doubt only Lenders with Advances or Commitments with respect to a Tranche shall be deemed to be affected by an extension of the Termination Date with respect to such Tranche), other than as provided by Section 2.16 or 9.01(c), (x) amend the definition of Committed Foreign Currencies, Multicurrency Committed Foreign Currencies, Australian Committed Currencies or Singapore Committed Currencies without the consent of any affected Lender, (xi) modify the definition of the term “Tranche Required Lenders” as it relates to a Tranche, or modify in any other manner the number or percentage of Lenders required to make any determinations in respect of such Tranche or waive any rights hereunder in respect of such Tranche or modify any provision hereof in respect of such Tranche, in each case, solely with respect to such Lenders under such Tranche, without the written consent of each Lender in respect of such Tranche; provided that with the consent of the Required Lenders, the provisions of this Section 9.01 and the definition of the term “Tranche Required Lenders” may be amended to include references to any Incremental Term Loan Facility (or any Lender under such Incremental Term Loan Facility) created pursuant to Section 2.18 on substantially the same basis as the corresponding references then existing in such definition, (xii) amend clause (iv) or clause (v) of Section 5.01(p) without the consent of each affected Lender; or (xiii) contractually subordinate in right of payment the Obligations of any Loan Party under the Loan Documents to any other Recourse Debt without the consent of each Lender; provided further that (A) no amendment, waiver or consent shall, unless in writing and signed by the applicable Swing Line Bank or the applicable Issuing Bank, as the case may be, in addition to the Lenders required above to take such action, affect the rights or obligations of such Swing Line Bank or of such Issuing Bank, as the case may be, under this Agreement; (B) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above to take such action, affect the rights or duties of the Administrative Agent under this Agreement or the other Loan Documents; and (C) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above to take such action, amend, waive or consent to any departure from, the provisions of Section 2.07(f) or the defined terms herein pertaining to the establishment, replacement or computation of any interest rate or interest rate margin applicable to any Obligations hereunder (except, in each case, in accordance with Sections 2.07(d), 2.07(f) and 9.01(f)). In addition, if either (i) the Administrative Agent and the Borrowers shall have jointly identified an obvious error or any error or omission of a technical nature in any of the Loan Documents or (ii) the Operating Partnership shall request one or more amendments of a technical nature to this Agreement in connection with the addition of a new Supplemental Tranche or a new Committed Foreign Currency that the Administrative Agent agrees is appropriate, then the Administrative Agent and the Borrowers shall be permitted to amend such this Agreement and/or the applicable Loan Document without any further action or consent of any other party if the same is not objected to in writing by the Required Lenders (or, if such amendment relates solely to a specific Tranche, the Tranche Required Lenders in respect of such Tranche) to the Administrative Agent within ten (10) Business Days following receipt of notice thereof.
or, as any of the abovementioned parties, at such other address as shall be designated by such party in a written notice to the other parties and, as to each other party, at such other address as shall be designated by such party in a written notice to the Borrowers and the Administrative Agent. All such notices and communications shall, when mailed, be effective on the third (3rd) Business Day after being deposited in the mails, when telegraphed, to be effective on the date delivered to the telegraph company, and, when emailed, be effective on the date of being confirmed by email, respectively, except that notices and communications to the Administrative Agent pursuant to Article II, III or VIII shall not be effective until received by the Administrative Agent. Delivery by email of an executed counterpart of any amendment or waiver of any provision of this Agreement, any Note, any other Loan Document or of any Exhibit hereto or thereto to be executed and delivered hereunder shall be effective as delivery of an original executed counterpart thereof, provided that any such email shall, in all cases, include an attachment (in PDF format or similar format) containing a copy of such document including the legible signature of the person who executed the same.
its Subsidiaries arising out of any Default or any events or circumstances that may give rise to a Default and with respect to presenting claims in or otherwise participating in or monitoring any bankruptcy, insolvency or other similar proceeding involving creditors’ rights generally and any proceeding ancillary thereto and (C) the reasonable fees and expenses of counsel for the Administrative Agent with respect to the preparation, execution, delivery and review of any documents and instruments at any time delivered pursuant to Section 5.01(j)) and (ii) all reasonable out-of-pocket costs and expenses of the Administrative Agent and each Lender Party in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of the Loan Documents, whether in any action, suit or litigation, or any bankruptcy, insolvency or other similar proceeding affecting creditors’ rights generally (including, without limitation, the reasonable fees and expenses of counsel for the Administrative Agent and each Lender Party with respect thereto), provided that the Loan Parties shall not be required to pay the costs and expenses of more than one counsel for the Administrative Agent and the Lender Parties, absent a conflict of interest (or in the case of a conflict of interest, one additional counsel for all similarly conflicted Lender Parties), and any necessary or desirable local or foreign counsel (limited to tax, litigation and corporate counsel in each applicable jurisdiction or, in the case of a conflict of interest, one additional tax, litigation and corporate counsel in such jurisdiction for all similarly conflicted Lender Parties).
however, that the failure to give such notice shall not affect the validity of such set-off and application. The rights of the Administrative Agent and each Lender Party and their respective Affiliates under this Section 9.05 are in addition to other rights and remedies (including, without limitation, other rights of set-off) that the Administrative Agent, such Lender Party and their respective Affiliates may have. Notwithstanding the foregoing, if any Defaulting Lender exercises any such right of setoff, (x) all amounts so set off will be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.21(a) and, pending such payment, will be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the Issuing Banks, the Swing Line Banks and the Lenders and (y) the Defaulting Lender will provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
discretion, elect to waive the Processing Fee in the case of any assignment. Notwithstanding the foregoing, no such assignment will be made by any Lender to any Defaulting Lender or Potential Defaulting Lender or any of their respective Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this sentence and no assignment, transfer, sub-participation or subcontracting in relation to a drawing under this Agreement by a French Borrower may be effected to a Lender incorporated, domiciled, established or acting through a lending office situated in a Non-Cooperative Jurisdiction. In the same way, no Lender having made an Advance under this Agreement to a French Borrower shall change its lending office for a lending office situated in a Non-Cooperative Jurisdiction. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment will be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrowers and the Administrative Agent, the applicable pro rata share of Advances previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, each Issuing Bank, each Swing Line Bank and each other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full pro rata share of all Advances and participants in Letters of Credit and Swing Line Advances in accordance with its Pro Rata Share. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder becomes effective under applicable law without compliance with the provisions of this Section 9.07(a), then the assignee of such interest will be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Lender Party including such applicable laws of the State of New York and the United States of America from time to time in effect. In furtherance thereof, the Lender Parties and the Borrowers stipulate and agree that none of the terms and provisions contained in this Agreement or the other Loan Documents shall ever be construed to create a contract to pay, as consideration for the use forbearance or detention of money, interest at a rate in excess of the Maximum Rate and that for purposes hereof “interest” shall include the aggregate of all charges which constitute interest under such laws that are contracted for, taken, charged, received, reserved or paid under this Agreement; and in the event that, notwithstanding the foregoing, under any circumstances the aggregate amounts contracted for, taken, charged, received, reserved or paid on the Advances, include amounts which, by applicable law, are deemed interest which would exceed the Maximum Rate, then such excess shall be deemed to be a mistake and, each Lender Party receiving the same shall credit the same on the principal of the Obligations of the applicable Borrowers under the Loan Documents (or if such Obligations shall have been paid in full, refund said excess to such Borrowers). In the event that the Obligations of the Borrowers under the Loan Documents are accelerated by reason of any Event of Default under this Agreement or otherwise, or in the event of any required or permitted prepayment, then such consideration that constitutes interest may never include more than the Maximum Rate and excess interest, if any, provided for in this Agreement or otherwise shall be canceled automatically as of the date of such acceleration or prepayment and, if theretofore paid, shall be credited on the principal of the Obligations of the applicable Borrowers under the Loan Documents (or, if such Obligations shall have been paid in full, refunded to such Borrowers). In determining whether or not the interest paid or payable under any specific contingencies exceeds the Maximum Rate, the Borrowers and the Lender Parties shall to the maximum extent permitted under applicable law amortize, prorate, allocate and spread in equal parts during the period of the full stated term of the Facility all amounts considered to be interest under applicable law at any time contracted for, taken, charged, received, reserved or paid in connection with the Obligations of the Loan Parties under the Loan Documents. The provisions of this Section shall control over all other provisions of this Agreement or the other Loan Documents which may be in apparent conflict herewith.
Confidential Information and shall have agreed in writing to keep such Confidential Information confidential, (f) to any Person that holds a security interest in all or any portion of any Lender’s rights under this Agreement, provided that the Persons to whom such disclosure is made pursuant to this clause (f) will be informed of the confidential nature of such Confidential Information and shall (except with respect to any Applicable Governmental Authority) have agreed in writing to keep such Confidential Information confidential, (g) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (h) to the extent required for the purposes of establishing a “due diligence” defense or a defense against a claim that the Administrative Agent or such Lender Party, as applicable, has breached its confidentiality obligations, (i) subject to an agreement containing provisions substantially the same as those of this Section 9.12, to any actual or prospective party to any swap, derivative or other transaction under which payments are to be made by reference to any Borrower and its obligations, this Agreement or payments hereunder, (j) to other Lender Parties and (k) with the prior written consent of the Borrowers; and in each case the Borrowers hereby consent to the disclosure by the Administrative Agent and any Lender Party of Confidential Information that is made in strict accordance with clauses (a) to (k), and the disclosure of other information relating to the Borrowers and the transactions hereunder that does not constitute Confidential Information. Notwithstanding any other provision in this Agreement or any other document, the parties hereby agree that (x) each party (and each employee, representative, or other agent of such party) may each disclose to any and all Persons, without limitation of any kind, the United States tax treatment and United States tax structure of the transaction and all materials of any kind (including opinions or other tax analyses) that are provided to each party relating to such United States tax treatment and United States tax structure and (y) the Administrative Agent may disclose the identity of any Defaulting Lender to the other Lenders and the Borrowers if requested by any Lender or any Borrower. In acting as the Administrative Agent, Citibank shall be regarded as acting through its agency division which shall be treated as a separate division from any of its other divisions or departments and, notwithstanding any of the Administrative Agent’s disclosure obligations hereunder, any information received by any other division or department of Citibank may be treated as confidential and shall not be regarded as having been given to Citibank’s agency division. Each Recipient may disclose any Confidential Information pursuant to and subject to clauses (b) and (c) above. For the avoidance of doubt, nothing herein prohibits any individual from communicating or disclosing Confidential Information regarding suspected violations of laws, rules, or regulations to any Applicable Governmental Authority without any notification to any person.
For the purposes of the Personal Data Protection Act (2012) of Singapore, each of the Loan Parties acknowledges that it has read and understood the Customer Circular relating to the Personal Data Protection Act (for Corporate and Institutional Customers) (the “Privacy Circular”), which is available at www.citibank.com.sg/icg/pdpacircular or upon request, and which explains the purposes for which a Lender Party may collect, use, disclose and process (collectively, “process”) personal data of natural persons. Each of the Loan Parties warrants that to the extent required by applicable law or regulation, it has provided notice to and obtained consent from relevant natural persons to allow the Lender Parties to process its personal data as described in the Privacy Circular as may be updated from time to time, prior to disclosure of such personal data to such Lender Party. Each of the Loan Parties further warrants that any such consent has been granted by these natural persons.
Each Lender and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Loan Parties that (a) pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”) and other Anti-Corruption Laws and anti-terrorism laws and regulations, it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of such Loan Party and other information that will allow such Lender or the Administrative Agent, as applicable, to identify such Loan Party in accordance with the Patriot Act and such other Anti-Corruption Laws and anti-terrorism laws and regulations and (b) pursuant to the Beneficial Ownership Regulation, it is required, to the extent that any Borrower qualifies as a “legal entity customer” under
the Beneficial Ownership Regulation, to obtain a Beneficial Ownership Certification in connection with the execution and delivery of this Agreement. The Parent Guarantor and the Borrowers shall, and shall cause each of their Subsidiaries to, provide, to the extent commercially reasonable, such information and take such actions as are reasonably requested by the Administrative Agent or any Lender to assist the Administrative Agent or Lender in maintaining compliance with the Patriot Act and other Anti-Corruption Laws and anti-terrorism laws and regulations including Sanctions.
Corporation Service Company (CSC)
19 West 44th Street, Suite 200
New York, New York 10036
other currency at Citibank N.A.’s principal office in London at 11:00 A.M. (London time) on the Business Day preceding that on which final judgment is given.
the Lender Parties acting in various capacities under the Loan Documents or for other customers of the Administrative Agent, any Arranger or any Lender Party as described in this Section 9.18.
[BALANCE OF PAGE INTENTIONALLY BLANK]
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:
DIG ITAL REALTY TRUST, L.P.,
a Maryland limited pa1tnership
By: Digital Realty Trust, Inc., its sole general partner
By: /s/ Matt Mercier
Name: Matt Mercier
Title: Chief Financial Officer
DIGITAL SINGAPORE JURONG EAST PTE. LTD.,
a Singapore private limited company
By: /s/ Matt Mercier
Name: Matt Mercier
Title: Authorized Person
DIGITAL SINGAPORE l PTE. LTD.,
a Singapore private limited company
By: /s/ Matt Mercier
Name: Matt Mercier
Title: Authorized Person
DIGITAL HK JV HOLDING LIMITED,
a British Virgin Islands business company
By: /s/ Jeannie Lee
Name: Jeannie Lee
Title: Director
[Signatures continue]
DIGITAL SINGAPORE 2 PTE. LTD.,
a Singapore private limited company
By: /s/ Matt Mercier
Name: Matt Mercier
Title: Authorized Person
DIGITAL HK KIN CHUEN LIMITED,
a Hong Kong limited company
By: /s/ Jeannie Lee
Name: Jeannie Lee
Title: Director
DIGITAL STOUT HOLDING, LLC,
a Delaware limited liability company
By: Digital Realty Trust, L.P., its manager
By: Digital Realty Trust, Inc., its member
By: /s/ Matt Mercier
Name: Matt Mercier
Title: Chief Financial Officer
DIGITAL JAPAN, LLC,
a Delaware limited liability company
By: Digital Asia, LLC, its member
By: Digital Realty Trust, L.P., its manager
By: Digital Realty Trust, Inc., its general partner
By: /s/ Matt Mercier
Name: Matt Mercier
Title: Chief Financial Officer
DIGITAL EURO FINCO, L.P.,
a Scotland limited partnership
By: Digital Euro Finco GP, LLC, its general partner
By: Digital Realty Trust, L.P., its member
By: Digital Realty Trust, Inc., its general partner
By: /s/ Matt Mercier
Name: Matt Mercier
Title: Chief Financial Officer
MOOSE VENTURES LP,
a Delaware limited partnership
By: Digital Realty Trust, L.P., its manager
By: Digital Realty Trust, Inc., its general pa1tner
Name: Matt Mercier
Title: Chief Financial Officer
DIGITAL DUTCH FINCO B.V.,
a Dutch private limited liability company
By: /s/ Chad Burkhardt
Name: Chad Burkhardt
Title: Managing Director
[Signatures continue]
[Signature Page to Third A&R Global Senior Credit Agreement)
DIGITAL REALTY DATAFIRM, LLC,
a Delaware Limited Liability Company
By: Digital Asia, LLC, its member
By: Digital Realty Trust, L.P., its member
By: Digital Realty Trust, Inc., its general partner
By: /s/ Matt Mercier
Name: Matt Mercier
Title: Chief Financial Officer
DIGITAL REALTY DATAFIRM 2, LLC,
a Delaware Limited Liability Company
By: Digital Asia, LLC, its member
By: Digital Realty Trust, L.P., its member
By: Digital Realty Trust, Inc., its general partner
By: /s/ Matt Mercier
Name: Matt Mercier
Title: Chief Financial Officer
[Signatures continue]
[Signature Page to Third A&R Global Senior Credit Agreement]
DIGITAL REALTY KOREA LTD.,
a Korean limited liability company
By: /s/ Jeannie Lee
Name: Jeannie Lee
Title: Director
DIGITAL SEOUL 2 LTD.,
a Korean limited liability company
By: /s/ Jeannie Lee
Name: Jeannie Lee
Title: Director
PT DIGITAL JAKARTA ONE,
an Indonesian limited liability company
By: /s/ Serene Nah
Name: Serene Nah
Title: President Director
[Signatures continue]
[Signature Page to Third A&R Global Senior Credit Agreement]
DIGITAL US FINCO, LLC,
a Delaware Limited Liability Company
By: Digital Realty Trust, L.P., its managing member
By: Digital Realty Trust, Inc., its general partner
By: /s/ Matt Mercier
Name: Matt Mercier
Title: Chief Financial Officer
[Signatures continue]
[Signature Page to Third A&R Global Senior Credit Agreement]
GUARANTORS:
DIGITAL REALTY TRUST, INC.,
a Maryland corporation
By: /s/ Matt Mercier
Name: Matt Mercier
Title: Chief Financial Officer
DIGITAL REALTY TRUST, L.P.,
a Maryland limited partnership
By: Digital Realty Trust, Inc.,
its sole general partner
By: /s/ Matt Mercier
Name: Matt Mercier
Title: Chief Financial Officer
DIGITAL EURO FINCO, LLC,
a Delaware limited liability Company
By: Digital Euro Finco, L.P., its sole member
By: Digital Euro Finco GP, LLC, its general partner By: Digital Realty Trust, L.P., its member
By: Digital Realty Trust, Inc., its general partner
By: /s/ Matt Mercier
Name: Matt Mercier
Title: Chief Financial Officer
[Signatures end.]
[Signature Page lo Third A&R Global Senior Credit Agreement]
ADMINISTRATIVE AGENT:
CITIBANK, N.A., as Administrative Agent
By: /s/ Christopher Albano
Name: Christopher Albano
Title: Authorized Signatory
Signature Pageto ThirdA&RGlobalSenior Credit Agreement
CO-SUSTAINABILITY STRUCTURNG AGENT:
CITIBANK, N.A., as Co-Sustainability Structuring Agent
By: /s/ Christopher Albano
Name: Christopher Albano
Title: Authorized Signatory
Signature Pageto ThirdA&RGlobalSenior Credit Agreement
CO-SUSTAINABILITY STRUCTURNG
Signature Pageto ThirdA&RGlobalSenior Credit Agreement
AGENT:
BOFA SECURITIES, INC., as Co
Sustainability Structuring Agent
By: /s/ Michael McHugh
Name: Michael McHugh
Title: Director
Signature Pageto ThirdA&RGlobalSenior Credit Agreement
MULTICURRENCY ISSUING BANK AND SWING LINE BANK:
CITIBANK, N.A., LONDON BRANCH
By: /s/ Christopher Albano
Name: Christopher Albano
Title: Authorized Signatory
Signature Page to ThirdA&R Global Senior Credit Agreement
KRW-A ISSUING BANK:
CITIBANK KOREA INC.
By: /s/ Myung-Soon Yoo
Name: Myung-Soon Yoo
Title: CEO
Signature Pageto ThirdA&R Global Senior Credit Agreement
KRW-B ISSUING BANK:
CITIBANK KOREA INC.
By: /s/ Myung-Soon Yoo
Name: Myung-Soon Yoo
Title: CEO
Signature Pageto ThirdA&R Global Senior Credit Agreement
CITIBANK, N.A., LONDON BRANCH,
as a Lender
By: /s/ Christopher Albano
Name: Christopher Albano
Title: Authorized Signatory
Signature Pageto ThirdA&R Global SeniorCredit Agreement
CITIBANK KOREA INC., as a Lender
By: /s/ Myung-Soon Yoo
Name: Myung-Soon Yoo
Title: CEO
Signature Pageto ThirdA&R Global Senior Credit Agreement
U.S. DOLLAR SWING LINE BANK:
BANK OF AMERICA, N.A.
By: /s/ Dennis Kwan
Name: Dennis Kwan
Title: Senior Vice President
Signature Page to ThirdA&R Global Senior Credit Agreement
U.S. DOLLAR ISSUING BANK:
BANK OF AMERICA, N.A.
By: /s/ Dennis Kwan
Name: Dennis Kwan
Title: Senior Vice President
Signature Pageto ThirdA&R Global Senior Credit Agreement
BANK OF AMERICA, N.A., as a Lender
By: /s/ Dennis Kwan
Name: Dennis Kwan
Title: Senior Vice President
Signature Pageto ThirdA&R Global Senior Credit Agreement
BANK OF AMERICA, N.A.,
AUSTRALIAN BRANCH, as a Lender
By: /s/ Dennis Kwan
Name: Dennis Kwan
Title: Senior Vice President
Signature Pageto ThirdA&R Global Senior Credit Agreement
BANK OF AMERICA, N.A.,
SINGAPORE BRANCH, as a Lender
By: /s/ Benjamin Tan
Name: Benjamin Tan
Title: Managing Director
Signature Page to Third A&R Global Senior Credit Agreement
BANK OF AMERICA, N.A., SEOUL
BRANCH, as a Lender
By: /s/ Dennis Kwan
Name: Dennis Kwan
Title: Senior Vice President
Signature PagetoThird A&R Global Senior Credit Agreement
AUSTRALIAN ISSUING BANK:
JPMORGAN CHASE BANK, N.A.
By: /s/ Carolina Arean
Name: Carolina Arean
Title: Vice President
SignaturePagetoThirdA& RGlobal Senior Credit Agreement
SWING LINE BANK:
JPMORGAN CHASE BANK, N.A.
By: /s/ Carolina Arean
Name: Carolina Arean
Title: Vice President
SignaturePageto ThirdA&RGIobal SeniorCredit Agreement
SINGAPORE ISSUING BANK:
JPMORGAN CHASE BANK, N.A.
By: /s/ Carolina Arean
Name: Carolina Arean
Title: Vice President
Signature Pageto Third A& RGIobal Senior Credit Agreement
SWING LINE BANK:
JPMORGAN CHASE BANK, N.A., SINGAPORE BRANCH
By:
/s/ Lam Pei Yun
Name: Lam Pei Yun Title:Executive Director
Signature Page to Third A&RGIobal Senior Credit Agreement
SWING LINE BANK:
JPMORGAN CHASE BANK, N.A.,
SEOUL BRANCH
By: /s/ Jung Woo Yang
Name: Jung Woo Yang
Title: Executive Director, CIB Credit Risk
Signature Pageto Third A&R Global Senior Credit Agreement
JPMORGAN CHASE BANK, N.A.,
SINGAPORE BRANCH, as a Lender
By: /s/ Lam Pei Yun
Name: Lam Pei Yun
Title: Executive Director
Signature Page to ThirdA&R Global Senior Credit Agreement
JPMORGAN CHASE BANK, N.A.,
SEOUL BRANCH, as a Lender
By: /s/ Jung Woo Yang
Name: Jung Woo Yang
Title: Executive Director, CIB Credit Risk
Signature Pageto Third A& RGlobalSenior Credit Agreement
JPMORGAN CHASE BANK, N.A., as a
Lender
By: /s/ Carolina Arean
Name: Carolina Arean
Title: Vice Presiden
SignaturePagetoThirdA& R Global Senior Credit Agreement
BANCO BILBAO VIZCAYA ARGENTARIA, S.A. NEW YORK
BRANCH, as a Lender
By: /s/ Bruce Habig
Name: Bruce Habig
Title: Managing Director
By: /s/ Armen Semizian
Name: Armen Semizian
Title: Managing Director
Signature Page to ThirdA&R Global Senior Credit Agreement
BANK OF CHINA, LOS ANGELES
BRANCH, as a Lender
By: /s/ Peng Li
Name: Peng Li
Title:SVP & Branch Manager
Signature Page to Third A&R Global Senior Credit Agreement
MULTICURRENCY ISSUING BANK:
BNP PARIBAS, S.A.
By:/s/ Maria Mulic
Name: Title:
Maria Mulic Managing Director
By: | /s/ Michael Kowalczuk |
Name: Michael Kowalczuk
Title:
Managing Director
Signature Page to Third A&R Global Senior Credit Agreement
BNP PARIBAS, S.A., as a Lender
By:/s/ Maria Mulic
Name: Title:
Maria Mulic Managing Director
By: | /s/ Michael Kowalczuk |
Name: Michael Kowalczuk
Title: Managing Director
Signature Page to Third A&R Global Senior Credit Agreement
CAPITAL ONE, NATIONAL
ASSOCIATION, as a Lender
By: /s/ Melissa DeVito
Name: Melissa DeVito
Title: Authorized Signatory
Signature Page to ThirdA&R Global Senior Credit Agreement
DBS BANK, LTD., as a Lender
By: /s/ Kate Khoo
Name: Kate Khoo
Title: Vice President
Signature Page to Third A&R Global Senior Credit Agreement
DEUTSCHE BANK AG NEW YORK
BRANCH, as a Lender
By: /s/ Alison Lugo
Name: Alison Lugo
Title: Vice President
By: /s/ Ming K Chu
Name: Ming K Chu
Title: Director
Signature Page to Third A&R Global Senior Credit Agreement
ING BANK N.V., DUBLIN BRANCH, as
a Lender
By:/s/ Robert O'Donoghue
Name: Title:
Robert O'Donoghue Managing Director
By:/s/ Sean Hassett
Name: Title:
Sean Hassett Director
Signature Page to Third A&R Global Senior Credit Agreement
MIZUHO BANK, LTD., as a Lender
By: /s/ Donna DeMagistris Name: Donna DeMagistris
Title:Managing Director
Signature Page to Third A&R Global Senior Credit Agreement
MORGAN STANLEY BANK, N.A., as a
Lender
By: | /s/ Michael King |
Name: Michael King
Title: Authorized Signatory
Signature Pageto Third A&R Global SeniorCredit Agreement
MUFG BANK, LTD., as a Lender
By: | /s/ Ricardo Funes |
Name: Ricardo Funes
Title: Director
Signature Pageto ThirdA&R Global Senior Credit Agreement
OVERSEA-CHINESE BANKINGCORPORATION
LIMITEDNEWYORK
AGENCY, as a Lender
By: | /s/ Charles Ong |
Name: Charles Ong
Title: Managing Director & General Manager
Signature Pageto ThirdA&R Global Senior Credit Agreement
PNC BANK, NATIONAL
ASSOCIATION, as a Lender
By: /s/ Brandon K. Fiddler
Name: Brandon K. Fiddler
Title: Senior Vice President
Signature Pageto ThirdA&R Global Senior Credit Agreement
RAYMOND JAMES BANK, as a Lender
By: /s/ Alex Sierra
Name: Alex Sierra
Title: SVP
Signature Page to ThirdA&R Global Senior Credit Agreement
ROYAL BANK OF CANADA, as a
Lender
By: /s/ Edward McKenna
Name: Edward McKenna
Title: Authorized Signatory
Signature Pageto ThirdA&R GlobalSenior Credit Agreement
BANCO SANTANDER, S.A., NEW YORK BRANCH, as a
Lender
By: /s/ Andres Barbosa Name: Andres Barbosa
Title:Managing Director
By: /s/ Rita Walz-Cuccioli Name: Rita Walz-Cuccioli
Title:Executive Director
Signature Page to Third A&R Global Senior Credit Agreement
SUMITOMO MITSUI BANKING
CORPORATION, as a Lender
By:/s/ Khrystyna Manko
Name: Khrystyna Manko Title: Director
Signature Page to Third A&R Global Senior Credit Agreement
THE BANK OF NOVA SCOTIA, as a
Lender
By:/s/ Luke Copley
Name: Luke Copley
Title: Director
Signature Page to Th irdA&R Global Senior Credit Agreement
By:/s/ Mark J Neifing
Name: Mark J Neifing
Title: Vice President
THE TORONTO-DOMINION BANK,
NEW YORK BRANCH, as a Lender
By:/s/ Jon Colquhoun
Name: Jon Colquhoun
Title: Managing Director
Signature Page to Third A&R Global Senior Credit Agreement
TRUIST BANK, as a Lender
By: /s/ Ryan Almond
Name: Ryan Almond
Title: Director
Signature Page to Third A&R Global Senior Credit Agreement
UBS AG, STAMFORD BRANCH, as
a Lender
By: /s/ Muhammad Afzal
Name: Muhammad Afzal
Title: Director
By: /s/ Danielle Calo
Name: Danielle Calo
Title: Associate Director
Signature Page to ThirdA&R Global SeniorCreditAgreement
U.S. BANK NATIONAL
ASSOCIATION, a National Banking Association, as a Lender
By: /s/ Matthew K. Mains
Name: Matthew K. Mains
Title: Senior Vice President
Signature Page to ThirdA&R Global SeniorCreditAgreement
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as a Lender
By: /s/ Rebecca Ghermezi Name: Rebecca Ghermezi
Title: Vice President
Signature Page to Third A&R Global Senior Credit Agreement
SCHEDULE I
COMMITMENTS AND APPLICABLE LENDING OFFICES
I. | AUSTRALIAN DOLLAR REVOLVING CREDIT COMMITMENTS |
Name of Lender1 | Australian Dollar Revolving Credit Commitment | Swing Line Commitment | Australian Letter of Credit Commitment | AUD Lending Office |
[*] | [*] | [*] | [*] | [*] |
[*] | [*] | [*] | [*] | [*] |
[*] | [*] | [*] | [*] | [*] |
[*] | [*] | [*] | [*] | [*] |
[*] | [*] | [*] | [*] | [*] |
Total | [*] | [*] | [*] | |
1 | Lender may pursuant to Section 2.02(j) make any Advance available by causing any foreign or domestic branch or Affiliate to make such Advance. |
[*] Confidential information has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
Schedule I-1
II. | MULTICURRENCY REVOLVING CREDIT COMMITMENTS |
Name of Lender | Multicurrency Revolving Credit Commitment | Swing Line Commitment | Multicurrency Letter of Credit Commitment | Multicurrency Lending Office |
[*] | [*] | [*] | [*] | [*] |
[*] | [*] | [*] | [*] | [*] |
[*] | [*] | [*] | [*] | [*] |
[*] | [*] | [*] | [*] | [*] |
[*] | [*] | [*] | [*] | [*] |
[*] | [*] | [*] | [*] | [*] |
[*] | [*] | [*] | [*] | [*] |
[*] | [*] | [*] | [*] | [*] |
[*] | [*] | [*] | [*] | [*] |
[*] | [*] | [*] | [*] | [*] |
[*] | [*] | [*] | [*] | [*] |
[*] | [*] | [*] | [*] | [*] |
[*] | [*] | [*] | [*] | [*] |
[*] | [*] | [*] | [*] | [*] |
Schedule I-2
III. | SINGAPORE DOLLAR REVOLVING CREDIT COMMITMENTS |
Name of Lender | Singapore Dollar Revolving Credit Commitment | Swing Line Commitment | Singapore Letter of Credit Commitment | SGD Lending Office |
[*] | [*] | [*] | [*] | [*] |
[*] | [*] | [*] | [*] | [*] |
[*] | [*] | [*] | [*] | [*] |
Total | [*] | [*] | [*] | [*] Confidential information has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed. |
Schedule I-3
[*] Confidential information has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
IV. | U.S. DOLLAR REVOLVING CREDIT COMMITMENTS |
Name of Lender | U.S. Dollar Revolving Credit Commitment | Swing Line Commitment | U.S. Dollar Letter of Credit Commitment | Domestic Lending Office | Eurocurrency Lending Office |
[*] | [*] | [*] | [*] | [*] | [*] |
[*] | [*] | [*] | [*] | [*] | [*] |
[*] | [*] | [*] | [*] | [*] | [*] |
[*] | [*] | [*] | [*] | [*] | [*] |
[*] | [*] | [*] | [*] | [*] | [*] |
[*] | [*] | [*] | [*] | [*] | [*] |
[*] | [*] | [*] | [*] | [*] | [*] |
[*] | [*] | [*] | [*] | [*] | [*] |
Total | [*] | [*] | [*] | | |
Schedule I-4
[*] Confidential information has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
V. | KRW-A REVOLVING CREDIT COMMITMENTS |
Name of Lender | KRW-A Revolving Credit Commitment | KRW-A Swing Line Commitment | KRW-A Letter of Credit Commitment | Korean Lending Office |
[*] | [*] | [*] | [*] | [*] |
[*] | [*] | [*] | [*] | [*] |
[*] | [*] | [*] | [*] | [*] |
Total | [*] | [*] | [*] | |
VI. | KRW-B REVOLVING CREDIT COMMITMENTS |
Name of Lender | KRW-B Revolving Credit Commitment | KRW-B Swing Line Commitment | KRW-B Letter of Credit Commitment | Korean Lending Office |
[*] | [*] | [*] | [*] | [*] |
[*] | [*] | [*] | [*] | [*] |
[*] | [*] | [*] | [*] | [*] |
Total | [*] | [*] | [*] | |
VII. | INDONESIAN RUPIAH REVOLVING CREDIT COMMITMENTS |
Name of Lender | Indonesian Rupiah Revolving Credit Commitment | Indonesian Lending Office |
[*] | [*] | [*] |
Total | [*] | [*] |
Schedule I-5
[*] Confidential information has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
Schedule II Approved Reallocation Lenders
Each Lender, along with any of its Affiliates that are Lenders, indicated in the table below shall be an Approved Reallocation Lender with respect to the correlative Tranches indicated with check marks. Notwithstanding anything set forth in this Schedule II or the Credit Agreement, each Approved Reallocation Lender shall retain the right to approve any Reallocation of its Commitments to the extent that both (i) such Reallocation is to a Tranche in which neither the applicable Approved Reallocation Lender nor any of its Affiliates is then a Lender and (ii) such Tranche includes one or more Additional Borrower(s) that joined such Tranche as Borrower(s) after the Closing Date.
Lender | Australian Dollar Revolving Credit Tranche | Multicurrency Revolving Credit Tranche | Singapore Dollar Revolving Credit Tranche | U.S. Dollar Revolving Credit Tranche | Korean Won Revolving Credit Tranche | Indonesian Rupiah Revolving Credit Tranche |
[*] | [*] | [*] | [*] | [*] | [*] | [*] |
[*] | [*] | [*] | [*] | [*] | [*] | [*] |
[*] | [*] | [*] | [*] | [*] | [*] | [*] |
[*] | [*] | [*] | [*] | [*] | [*] | [*] |
[*] | [*] | [*] | [*] | [*] | [*] | [*] |
1 Only from and after the effective date of the Benchmark Replacement Conforming Changes made in connection with the Benchmark Transition Event for the JIBOR Rate that is anticipated to occur in 2025.
[*] Confidential information has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
Schedule II
Schedule III [Reserved]
Schedule IV
EXISTING LETTERS OF CREDIT
LOC Number | Currency | Amount | Tranche |
[*] | AUD | [*] | Australian Dollar Revolving Credit Tranche |
[*] | AUD | [*] | Australian Dollar Revolving Credit Tranche |
[*] | KRW | [*] | KRW-A Tranche |
[*] | SGD | [*] | Singapore Dollar Revolving Credit Tranche |
[*] | SGD | [*] | Singapore Dollar Revolving Credit Tranche |
[*] | SGD | [*] | Singapore Dollar Revolving Credit Tranche |
[*] | HKD | [*] | Singapore Dollar Revolving Credit Tranche |
[*] | USD | [*] | US Dollar Revolving Credit Tranche |
[*] | USD | [*] | US Dollar Revolving Credit Tranche |
[*] | USD | [*] | US Dollar Revolving Credit Tranche |
[*] | USD | [*] | US Dollar Revolving Credit Tranche |
[*] | USD | [*] | US Dollar Revolving Credit Tranche |
[*] | USD | [*] | US Dollar Revolving Credit Tranche |
[*] | EUR | [*] | Multicurrency |
[*] | EUR | [*] | Multicurrency |
[*] | EUR | [*] | Multicurrency |
[*] | EUR | [*] | Multicurrency |
[*] | EUR | [*] | Multicurrency |
[*] | EUR | [*] | Multicurrency |
[*] | EUR | [*] | Multicurrency |
[*] | EUR | [*] | Multicurrency |
[*] | EUR | [*] | Multicurrency |
[*] | EUR | [*] | Multicurrency |
[*] | EUR | [*] | Multicurrency |
[*] | EUR | [*] | Multicurrency |
[*] | CAD | [*] | Multicurrency |
[*] | EUR | [*] | Multicurrency |
[*] | EUR | [*] | Multicurrency |
[*] | USD | [*] | Multicurrency |
[*] | USD | [*] | Multicurrency |
[*] | USD | [*] | Multicurrency |
[*] Confidential information has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
Schedule V
Deemed Qualifying Ground Leases
1.[*]
2.[*]
3.[*]
4.[*]
5.[*]
6. | [*] |
7. | [*] |
[*] Confidential information has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
Schedule VI
[Reserved]
Schedule VII
Short-Term Leased Assets
Location | City | Lease End Date |
[*] | [*] | [*] |
[*] | [*] | [*] |
[*] | [*] | [*] |
[*] | [*] | [*] |
[*] | [*] | [*] |
[*] | [*] | [*] |
[*] | [*] | [*] |
[*] | [*] | [*] |
[*] | [*] | [*] |
[*] | [*] | [*] |
[*] | [*] | [*] |
[*] | [*] | [*] |
[*] | [*] | [*] |
[*] Confidential information has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed | | |
Schedule 4.01(n)
Surviving Debt
Properties/DebtObligor
Maturity Date
Outstanding Principal Amount (in $)1
2001 Sixth Avenue – Mortgage2001 Sixth LLCJuly 11, 2027135,000,000
ICN10 FacilityDigital Seoul No. 1 PIA Professional Investors Private
Real Estate Investment LLC and Digital Realty Trust,
L.P.
Icolo LoansIcolo, company number 129163, a private company
Ascenty Brazil(2)Ascenty Data Centers E Telecomunicações S.A. and Ascenty Holding Brasil S.A.
Ascenty Brazil (2)Ascenty Data Centers E Telecomunicações S.A. and Ascenty Holding Brasil S.A.
Ascenty Mexico(2)Ascenty México, S. de R.L. de C.V.
December 31, 203012,278,000
Various12,863,000
February 17, 2028438,600,000
June 20, 203051,000,000
April 9, 202630,600,000
Ascenty Chile(2)Ascenty Chile SpANovember 28, 202868,850,000
Teraco LoansTeraco Data Environments Proprietary Limited
Teraco Great Westerford LoanTeraco Data Environments
Proprietary Limited
December 6, 2028441,946,000
March 7, 202823,790,000
Teraco Manditorily Redeemable Preferreds
Teraco Data Environments Proprietary Limited
January 16, 202665,960,000
2.75% Senior Notes due 2024 (3)Digital Realty Trust, L.P. and
Digital Stout Holding, LLC 4.25% Senior Notes due 2025Digital Realty Trust, L.P. and
Digital Stout Holding, LLC
0.625% Senior Notes due 2025Digital Realty Trust, L.P. and
Digital Dutch Finco B.V.
July 19, 2024279,250,000
January 17, 2025505,800,000
July 15, 2025696,345,000
2.50% Senior Notes due 2026Digital Realty Trust, L.P and
Digital Euro Finco, LLC 0.20% Senior Notes due 2026Digital Realty Trust, L.P and
Digital Intrepid Holding B.V. 1.70% Senior Notes due 2027Digital Realty Trust, L.P. and
Digital Intrepid Holding B.V.
January 16, 20261,151,648,000
December 15, 2026306,009,000
March 30, 2027166,914,000
3.70% Senior Notes due 2027Digital Realty Trust, L.P.August 15, 20271,000,000,000
5.55% Senior Notes due 2028Digital Realty Trust, L.P.January 15, 2028900,000,000
Properties/Debt | | Obligor | | Maturity Date | | Outstanding Principal Amount (in $)1 |
1.125% Senior Notes due 2028 | | Digital Realty Trust, L.P and | | April 9, 2028 | | 535,650,000 |
| | Digital Euro Finco, LLC | | | | |
4.45% Senior Notes due 2028 | | Digital Realty Trust, L.P. | | July 15, 2028 | | 650,000,000 |
0.55% Senior Notes due 2029 | | Digital Realty Trust, L.P and | | April 16, 2029 | | 300,445,000 |
| | Digital Intrepid Holding B.V. | | | | |
3.60% Senior Notes due 2029 | | Digital Realty Trust, L.P. | | July 1, 2029 | | 900,000,000 |
3.30% Senior Notes due 2029 | | Digital Realty Trust, L.P. and | | July 19, 2029 | | 442,575,000 |
| | Digital Stout Holding, LLC | | | | |
1.50% Senior Notes due 2030 | | Digital Realty Trust, L.P. and | | March 15, 2030 | | 803,475,000 |
| | Digital Dutch Finco B.V. | | | | |
3.75% Senior Notes due 2030 | | Digital Realty Trust, L.P. and | | October 17, 2030 | | 695,475,000 |
| | Digital Stout Holding, LLC | | | | |
1.25% Senior Notes due 2031 | | Digital Realty Trust, L.P. and | | February 1, 2031 | | 535,639,000 |
| | Digital Dutch Finco B.V. | | | | |
0.625% Senior Notes due 2031 | | Digital Realty Trust, L.P and | | July 15, 2031 | | 1,071,300,000 |
| | Digital Intrepid Holding B.V. | | | | |
1.00% Senior Notes due 2032 | | Digital Realty Trust, L.P. and | | January 15, 2032 | | 803,475,000 |
| | Digital Dutch Finco B.V. | | | | |
1.375% Senior Notes due 2032 | | Digital Realty Trust, L.P. and | | July 18, 2032 | | 803,475,000 |
3.875% Senior Notes due 2033 (4) | | Digital Intrepid Holding B.V. Digital Realty Trust, L.P. and | | September 13, 2033 | | 936,700,000 |
| | Digital Dutch Finco B.V. | | | | |
Unsecured Revolving Credit | | Digital Realty Trust, L.P. | | January 24, 2026 | | 1,762,281,000 |
Facility | | Digital Singapore Jurong East | | | | |
| | PTE. Ltd. | | | | |
| | Digital Singapore 1 Pte. Ltd. | | | | |
| | Digital Singapore 2 Pte. Ltd. | | | | |
| | Digital HK Kin Chuen Limited | | | | |
| | Digital EURO Finco, L.P. | | | | |
| | Digital Stout Holding, LLC | | | | |
| | Digital Japan, LLC | | | | |
| | Digital HK JV Holding Limited | | | | |
| | Moose Ventures LP | | | | |
| | Digital Dutch Finco B.V. | | | | |
| | Intrepid Holdings B.V. | | | | |
| | Digital Australia Finco Pty Ltd | | | | |
| | Digital Realty Korea Ltd. | | | | |
| | Digital Seoul 2 Ltd. | | | | |
| | PT Digital Jakarta One | | | | |
Yen Facility | | Digital Japan, LLC | | January 24, 2026 | | 95,913,000 |
Euro Term Loan(5) | | Digital Dutch Finco B.V. | | August 11, 2025 | | 401,738,000 |
Euro Term Loan | | Digital Dutch Finco B.V. | | August 11, 2027 | | 401,738,000 |
USD Term Loan | | Digital Realty Trust, L.P. | | March 31, 2026 | | 500,000,000 |
1) | Balances as of June 30, 2024, unless otherwise indicated. |
2) | The outstanding principal amount represents JV Pro Rata Share of Debt for Borrowed Money. |
3) | Retired on July 19, 2024. |
4) | Issued on September 13, 2024. |
5) | Retired on September 13, 2024. |
EXHIBIT A to the THIRD AMENDED AND RESTATED GLOBAL SENIOR CREDIT AGREEMENT
FORM OF PROMISSORY NOTE
PROMISSORY NOTE
[U.S. Dollar Revolving Credit Tranche: $ ] [Multicurrency Revolving Credit Tranche: $ ] [Australian Dollar Revolving Credit Tranche: A$ ] [Singapore Dollar Revolving Credit Tranche: S$ ] [KRW-A Revolving Credit Tranche: KRW ] [KRW-B Revolving Credit Tranche: KRW ] [IDR Revolving Credit Tranche: Rp ]
[[Insert name of applicable Supplemental Tranche]: ] (collectively, the “Principal Amount”, and, with respect to
each Tranche, the “Tranche Principal Amount”)Dated: ,
FOR VALUE RECEIVED, the undersigned, [insert name of applicable Borrower] (the “Borrower”), HEREBY PROMISES TO PAY (the “Lender”) or its registered assigns, in accordance with the Credit Agreement (as defined below), the aggregate principal amount of the Revolving Credit Advances, the Letter of Credit Advances and the Swing Line Advances (each as defined below) owing to the Lender by the Borrower pursuant to the Third Amended and Restated Global Senior Credit Agreement, dated as of September 24, 2024 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”; terms defined therein, unless otherwise defined herein, being used herein as therein defined), among the Borrower, the Lender, the other lender parties party thereto from time to time, the Guarantors party thereto from time to time, the other Borrowers party thereto from time to time and Citibank, N.A., as Administrative Agent for the Lender and such other lender parties, on the Termination Date.
The Borrower promises to pay to the Lender interest on the unpaid principal amount of each Revolving Credit Advance, Letter of Credit Advance and Swing Line Advance owing to the Lender by such Borrower from the date of such Revolving Credit Advance, Letter of Credit Advance or Swing Line Advance, as the case may be, until such principal amount is paid in full, at such interest rates, and payable at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in the currency of the applicable Advance to the Applicable Administrative Agent’s Account. Each Revolving Credit Advance, Letter of Credit Advance and Swing Line Advance owing to the Lender by the Borrower and the maturity thereof, and all payments made on account of principal thereof, shall be recorded by the Lender and, prior to any transfer hereof, endorsed on the grid attached hereto, which is part of this promissory note (this “Promissory Note”); provided, however, that the failure of the Lender to make any such recordation or endorsement shall not affect the Obligations of the Borrower under this Promissory Note.
This Promissory Note is one of the Notes referred to in, and is entitled to the benefits of, the Credit Agreement. The Credit Agreement, among other things, (a) provides for the making of advances (variously, the “Revolving Credit Advances”, “Letter of Credit Advances” or the “Swing Line Advances”) by the Lender to or for the benefit of the Borrower from time to time in an aggregate amount not to exceed at any time outstanding the Principal Amount or, with respect to any Tranche, the applicable Tranche Principal Amount, the indebtedness of the Borrower resulting from each such Revolving Credit Advance,
Exh. A - 1
Digital Realty Trust, L.P. – Form of Promissory Note
Letter of Credit Advance and Swing Line Advance being evidenced by this Promissory Note, and
(b) contains provisions for acceleration of the maturity hereof upon the happening of certain stated events and also for prepayments on account of principal hereof prior to the Termination Date upon the terms and conditions therein specified.
This Promissory Note shall not be construed or qualified as a promissory note (billet à ordre) within the meaning of the Luxembourg law dated December 15, 1962 on the implementation in the national legislation of the uniform law for bills of exchange and promissory notes.
This Promissory Note shall be governed by, and construed in accordance with, the laws of the State of New York.
[NAME OF BORROWER]
By: Name:
Title:
Exh. A - 2
Digital Realty Trust, L.P. – Form of Promissory Note
ADVANCES AND PAYMENTS OF PRINCIPAL
1. | U.S. Dollar Revolving Credit Tranche1 |
Date | Amount of Advance | Amount of Principal Paid or Prepaid | Unpaid Principal Balance | Notation Made By |
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2. | Multicurrency Revolving Credit Tranche |
Date | Amount of Advance | Amount of Principal Paid or Prepaid | Unpaid Principal Balance | Notation Made By |
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1Each of the following tables is to be inserted to extent applicable
Exh. A - 3
Digital Realty Trust, L.P. – Form of Promissory Note
3. | Australian Dollar Revolving Credit Tranche |
Date | Amount of Advance | Amount of Principal Paid or Prepaid | Unpaid Principal Balance | Notation Made By |
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4. | Singapore Dollar Revolving Credit Tranche |
Date | Amount of Advance | Amount of Principal Paid or Prepaid | Unpaid Principal Balance | Notation Made By |
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5. | KRW-A Revolving Credit Tranche |
Exh. A - 4
Digital Realty Trust, L.P. – Form of Promissory Note
Date | Amount of Advance | Amount of Principal Paid or Prepaid | Unpaid Principal Balance | Notation Made By |
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6. | KRW-B Revolving Credit Tranche |
Date | Amount of Advance | Amount of Principal Paid or Prepaid | Unpaid Principal Balance | Notation Made By |
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7. | IDR Revolving Credit Tranche |
Date | Amount of Advance | Amount of Principal Paid or Prepaid | Unpaid Principal Balance | Notation Made By |
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Exh. A - 5
Digital Realty Trust, L.P. – Form of Promissory Note
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[8]. [insert name of applicable Supplemental Tranche]2
Date | Amount of Advance | Amount of Principal Paid or Prepaid | Unpaid Principal Balance | Notation Made By |
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2To be inserted for each Supplemental Tranche
Exh. A - 6
Digital Realty Trust, L.P. – Form of Promissory Note
EXHIBIT B-1 TO THE THIRD AMENDED AND RESTATED GLOBAL SENIOR CREDIT AGREEMENT
FORM OF NOTICE OF BORROWING (GENERAL) NOTICE OF BORROWING
,
Citibank, N.A.,
as Administrative Agent under the Credit Agreement referred to below
1615 Brett Road, Ops III New Castle, Delaware 19720 United States of America
Attention: Agency Operations Ladies and Gentlemen:
The undersigned, [insert name of applicable Borrower], refers to the Third Amended and Restated Global Senior Credit Agreement, dated as of September 24, 2024 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”; the terms defined therein being used herein as therein defined), among the undersigned, as a Borrower, the Guarantors party thereto from time to time, the other Borrowers party thereto from time to time, the Lender Parties party thereto and Citibank, N.A., as Administrative Agent for the Lender Parties, and hereby gives you notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that the undersigned hereby requests a Borrowing under the Credit Agreement, and in that connection sets forth below the information relating to such Borrowing (the “Proposed Borrowing”) as required by Section [2.02(a)][2.02(b)] of the Credit Agreement:
(i)The Business Day of the Proposed Borrowing is , .
(ii) | The [Tranche][Swing Line Facility] under which the Proposed Borrowing is requested is the [U.S. Dollar Revolving Credit Tranche][Multicurrency Revolving Credit Tranche] [Australian Revolving Credit Tranche][Singapore Revolving Credit Tranche][IDR Revolving Credit Tranche][insert name of applicable Supplemental Tranche][Multicurrency Swing Line Facility] [Australian Swing Line Facility][Singapore Swing Line Facility]. |
(iii) | The Type of Advances comprising the Proposed Borrowing is [Base Rate Advances] [Floating Rate Advances][CPR Advances][Eurocurrency Rate Advances][Daily RFR Advances]. |
(iv)The aggregate amount of the Proposed Borrowing is [ ].
Exh. B-1 - 1
Digital Realty Trust, L.P. – Form of Notice of Borrowing
(v)[The initial Interest Period for each Floating Rate Advance made as part of the Proposed Borrowing is month[s].]3 [The tenor for each Daily RFR Advance made as part of the Proposed Borrowing is months[s].]4
(vi) | [The currency for the Proposed Borrowing is [U.S. Dollars][Sterling][Euros][Canadian Dollars][Australian Dollars][Singapore Dollars][Hong Kong Dollars][Yen][Indonesian Rupiah][insert applicable Supplemental Currency].] |
(vii) | The account information for the Borrower’s Account to which the Proposed Borrowing should be credited is: |
(viii)The portion of funds from the Proposed Borrowing to be applied to the repayment of Swing Line Advances (including the currency thereof), if any, is .
The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the date of the Proposed Borrowing:
(A) | The representations and warranties contained in each Loan Document are true and correct in all material respects on and as of the date of the Proposed Borrowing (unless qualified as to materiality or Material Adverse Effect, in which case such representations and warranties shall be true and correct in all respects), before and after giving effect to (x) the Proposed Borrowing and (y) the application of the proceeds therefrom, 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, in which case as of such specific date). |
(B) | No Default or Event of Default has occurred and is continuing, or would immediately result from (x) such Proposed Borrowing or (y) the application of the proceeds therefrom. |
(C) | before and immediately after giving effect to the Proposed Borrowing on the borrowing date, the Parent Guarantor shall be in compliance with the covenants contained in Section 5.04 of the Credit Agreement. |
Delivery of an executed counterpart of this Notice of Borrowing by telecopier or e-mail (which e- mail shall include an attachment in PDF format or similar format containing the legible signature of the undersigned) shall be effective as delivery of an original executed counterpart of this Notice of Borrowing.
[NAME OF BORROWER]
Exh. B-1 - 2
Digital Realty Trust, L.P. – Form of Notice of Borrowing
By: Name:
Title:
Exh. B-1 - 3
Digital Realty Trust, L.P. – Form of Notice of Borrowing
EXHIBIT B-2 TO THE THIRD AMENDED AND RESTATED GLOBAL SENIOR CREDIT AGREEMENT
FORM OF NOTICE OF BORROWING (KRW-A REVOLVING CREDIT TRANCHE) NOTICE OF BORROWING
,
Citibank, N.A.,
as Administrative Agent under the Credit Agreement referred to below
1615 Brett Road, Ops III New Castle, Delaware 19720 United States of America
Attention: Agency Operations Ladies and Gentlemen:
The undersigned, [insert name of applicable Borrower], refers to the Third Amended and Restated Global Senior Credit Agreement, dated as of September 24, 2024 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”; the terms defined therein being used herein as therein defined), among the undersigned, as a Borrower, the Guarantors party thereto from time to time, the other Borrowers party thereto from time to time, the Lender Parties party thereto and Citibank, N.A., as Administrative Agent for the Lender Parties, and hereby gives you notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that the undersigned hereby requests a Borrowing under the Credit Agreement, and in that connection sets forth below the information relating to such Borrowing (the “Proposed Borrowing”) as required by Section [2.02(a)][2.02(b)] of the Credit Agreement:
(i)The Business Day of the Proposed Borrowing is , .
(ii) | The [Tranche][Swing Line Facility] under which the Proposed Borrowing is requested is the [KRW-A Revolving Credit Tranche][KRW-A Swing Line Facility]. |
(iii) | The Type of Advances comprising the Proposed Borrowing is Floating Rate Advances. |
(iv)The aggregate amount of the Proposed Borrowing is [ ].
(v)The initial Interest Period for each Floating Rate Advance made as part of the Proposed Borrowing is month[s].5
(vi) | [The currency for the Proposed Borrowing is Korean Won.] |
(vii) | [The tenor of such Proposed Borrowing is January 24, 2029.] 6 |
(viii) | The account information for the Borrower’s Account to which such Proposed Borrowing should be credited is: |
5If not specified, such period shall be one month.
6 Only required if the Proposed Borrowing is a Daily RFR Advance
Exh. B-2 - 1
Digital Realty Trust, L.P. – Form of Notice of Borrowing
(ix)The portion of funds from the Proposed Borrowing to be applied to the repayment of Swing Line Advances (including the currency thereof), if any, is .
(x)TheuseofproceedsoftheProposedBorrowingwillbe
_.
The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the date of the Proposed Borrowing:
(D) | The representations and warranties contained in each Loan Document are true and correct in all material respects on and as of the date of the Proposed Borrowing (unless qualified as to materiality or Material Adverse Effect, in which case such representations and warranties shall be true and correct in all respects), before and after giving effect to (x) the Proposed Borrowing and (y) the application of the proceeds therefrom, 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, in which case as of such specific date). |
(E) | No Default or Event of Default has occurred and is continuing, or would immediately result from (x) such Proposed Borrowing or (y) the application of the proceeds therefrom. |
(F) | before and immediately after giving effect to the Proposed Borrowing on the borrowing date, the Parent Guarantor shall be in compliance with the covenants contained in Section 5.04 of the Credit Agreement. |
Delivery of an executed counterpart of this Notice of Borrowing by telecopier or e-mail (which e- mail shall include an attachment in PDF format or similar format containing the legible signature of the undersigned) shall be effective as delivery of an original executed counterpart of this Notice of Borrowing.
[NAME OF BORROWER]
By: Name:
Title:
Exh. B-2 - 2
Digital Realty Trust, L.P. – Form of Notice of Borrowing
EXHIBIT B-3 TO THE THIRD AMENDED AND RESTATED GLOBAL SENIOR CREDIT AGREEMENT
FORM OF NOTICE OF BORROWING (KRW-B REVOLVING CREDIT TRANCHE) NOTICE OF BORROWING
,
Citibank, N.A.,
as Administrative Agent under the Credit Agreement referred to below
1615 Brett Road, Ops III New Castle, Delaware 19720 United States of America
Attention: Agency Operations Ladies and Gentlemen:
The undersigned, [insert name of applicable Borrower], refers to the Third Amended and Restated Global Senior Credit Agreement, dated as of September 24, 2024 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”; the terms defined therein being used herein as therein defined), among the undersigned, as a Borrower, the Guarantors party thereto from time to time, the other Borrowers party thereto from time to time, the Lender Parties party thereto and Citibank, N.A., as Administrative Agent for the Lender Parties, and hereby gives you notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that the undersigned hereby requests a Borrowing under the Credit Agreement, and in that connection sets forth below the information relating to such Borrowing (the “Proposed Borrowing”) as required by Section [2.02(a)][2.02(b)] of the Credit Agreement:
(i)The Business Day of the Proposed Borrowing is , .
(ii) | The [Tranche][Swing Line Facility] under which the Proposed Borrowing is requested is the [KRW-B Revolving Credit Tranche][KRW-B Swing Line Facility]. |
(iii) | The Type of Advances comprising the Proposed Borrowing is Floating Rate Advances. |
(iv)The aggregate amount of the Proposed Borrowing is [ ].
(v)The initial Interest Period for each Floating Rate Advance made as part of the Proposed Borrowing is month[s].7
(vi) | The currency for such Borrowing is Korean Won. |
(vii) | The account information for the Borrower’s Account to which such Borrowing should be credited is: |
Bank:[ ]
ABA No:[ ] SWIFT No:[ ]
Exh. B-3 - 1
Digital Realty Trust, L.P. – Form of Notice of Borrowing
IBAN No.:[ ]
Acct. Name:[ ]
Acct. No.:[ ] Reference:[ ]
(viii)The portion of funds from such Borrowing to be applied to the repayment of Swing Line Advances (including the currency thereof), if any, is .
(ix)TheuseofproceedsofsuchBorrowingwillbe
_.
(x) | The applicable Korean Capital Expenditure Documents are attached. |
The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the date of the Proposed Borrowing:
(G) | The representations and warranties contained in each Loan Document are true and correct in all material respects on and as of the date of the Proposed Borrowing (unless qualified as to materiality or Material Adverse Effect, in which case such representations and warranties shall be true and correct in all respects), before and after giving effect to (x) the Proposed Borrowing and (y) the application of the proceeds therefrom, 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, in which case as of such specific date). |
(H) | No Default or Event of Default has occurred and is continuing, or would immediately result from (x) such Proposed Borrowing or (y) the application of the proceeds therefrom. |
(I) | before and immediately after giving effect to the Proposed Borrowing on the borrowing date, the Parent Guarantor shall be in compliance with the covenants contained in Section 5.04 of the Credit Agreement. |
Delivery of an executed counterpart of this Notice of Borrowing by telecopier or e-mail (which e- mail shall include an attachment in PDF format or similar format containing the legible signature of the undersigned) shall be effective as delivery of an original executed counterpart of this Notice of Borrowing.
[NAME OF BORROWER]
By: Name:
Title:
Exh. B-3 - 2
Digital Realty Trust, L.P. – Form of Notice of Borrowing
Annex I
Korean Capital Expenditure Documents
Exh. B-3 - 1
Digital Realty Trust, L.P. – Form of Notice of Borrowing
EXHIBIT C to the THIRD AMENDED AND RESTATED GLOBAL SENIOR CREDIT AGREEMENT
FORM OF GUARANTY SUPPLEMENT
GUARANTY SUPPLEMENT
,
Citibank, N.A.,
as Administrative Agent under the Credit Agreement referred to below
1615 Brett Road, Ops III New Castle, Delaware 19720 United States of America
Attention: Agency Operations
Third Amended and Restated Global Senior Credit Agreement, dated as of September 24, 2024 (as in effect on the date hereof and as it may hereafter be amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Digital Realty Trust, L.P., as a Borrower, Digital Realty Trust, Inc., as Parent Guarantor, the other Guarantors party thereto from time to time, the other Borrowers party thereto from time to time, the Lender Parties party thereto from time to time, and Citibank, N.A., as Administrative Agent for the Lender Parties.
Ladies and Gentlemen:
Reference is made to the above-captioned Credit Agreement and to the Guaranty set forth in Article VII thereof (such Guaranty, as in effect on the date hereof and as it may hereafter be amended, supplemented or otherwise modified from time to time, together with this Guaranty Supplement, being the “Guaranty”). The capitalized terms defined in the Credit Agreement and not otherwise defined herein are used herein as therein defined.
Section 1. Guaranty; Limitation of Liability. (a) The undersigned hereby absolutely, unconditionally and irrevocably guarantees the punctual payment when due, whether at scheduled maturity or on any date of a required prepayment or by acceleration, demand or otherwise, of all Obligations of the Borrowers and each other Loan Party now or hereafter existing under or in respect of the Loan Documents (including, without limitation, any extensions, modifications, substitutions, amendments or renewals of any or all of the foregoing Obligations), whether direct or indirect, absolute or contingent, and whether for principal, interest, premiums, fees, indemnities, contract causes of action, costs, expenses or otherwise (such Obligations being the “Guaranteed Obligations”), and agrees to pay any and all reasonable out-of- pocket costs or expenses (including, without limitation, fees and expenses of counsel) incurred by the Administrative Agent or any other Secured Party in enforcing any rights under this Guaranty Supplement, the Guaranty, the Credit Agreement or any other Loan Document in accordance with Section 9.04 of the Credit Agreement. Without limiting the generality of the foregoing, the undersigned’s liability shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by any other Loan Party to any Secured Party under or in respect of the Loan Documents but for the fact that they are
Exh. C - 1
Digital Realty Trust, L.P. – Form of Guaranty Supplement
unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving such other Loan Party.
(b)The undersigned, and by its acceptance of this Guaranty Supplement, the Administrative Agent and each other Secured Party, hereby confirms that it is the intention of all such Persons that this Guaranty Supplement, the Guaranty and the Obligations of the undersigned hereunder and thereunder not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to the extent applicable to this Guaranty Supplement, the Guaranty and the Obligations of the undersigned hereunder and thereunder. To effectuate the foregoing intention, the Administrative Agent, the other Secured Parties (by their acceptance of the benefits of this Guaranty Supplement) and the undersigned hereby irrevocably agree that the Obligations of the undersigned under this Guaranty Supplement and the Guaranty at any time shall be limited to the maximum amount as will result in the Obligations of the undersigned under this Guaranty Supplement and the Guaranty not constituting a fraudulent transfer or conveyance.
(c)The undersigned hereby unconditionally and irrevocably agrees that in the event any payment shall be required to be made to any Secured Party under this Guaranty Supplement, the Guaranty or any other guaranty, the undersigned will contribute, to the maximum extent permitted by law, such amounts to each other Guarantor and each other guarantor so as to maximize the aggregate amount paid to the Secured Parties under or in respect of the Loan Documents.
(d)[Insert guaranty limitation language in accordance with Section 7.09 of the Credit Agreement, if applicable]
Section 2. Obligations Under the Guaranty. The undersigned hereby agrees, as of the date first above written, to be bound as a Guarantor by all of the terms and conditions of the Credit Agreement and the Guaranty to the same extent as each of the other Guarantors thereunder. The undersigned further agrees, as of the date first above written, that each reference in the Credit Agreement to an “Additional Guarantor”, a “Loan Party” or a “Guarantor” shall also mean and be a reference to the undersigned, and each reference in any other Loan Document to a “Guarantor” or a “Loan Party” shall also mean and be a reference to the undersigned.
Section 3. Representations and Warranties. The undersigned represents and warrants as of the date hereof as follows:
(a)The undersigned and each general partner or managing member, if any, of the undersigned (i) is a corporation, limited liability company or partnership duly incorporated, organized or formed, validly existing and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) under the laws of the jurisdiction of its incorporation, organization or formation, (ii) is duly qualified and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) as a foreign corporation, limited liability company or partnership in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate, limited liability company or partnership power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted.
Exh. C - 2
Digital Realty Trust, L.P. – Form of Guaranty Supplement
(b)The execution and delivery by the undersigned and of each general partner or managing member (if any) of the undersigned of this Guaranty Supplement and each other Loan Document to which it is or is to be a party, and the performance of its obligations thereunder, and the consummation of the transactions contemplated hereby and by the other Loan Documents, are within the corporate, limited liability company or partnership powers of the undersigned, general partner or managing member, have been duly authorized by all necessary corporate, limited liability company or partnership action, and do not
(i) contravene the charter or bylaws, memorandum and articles of association, operating agreement, partnership agreement or other governing document of such undersigned, general partner or managing member, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, or (iii) result in or require the creation or imposition of any Lien upon or with respect to any of the properties of the undersigned or any of its Subsidiaries.
(d)No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery, recordation, filing or performance by the undersigned or any general partner or managing member of the undersigned in respect of this Guaranty Supplement or any other Loan Document to which it is or is to be a party or for the consummation of the transactions contemplated hereby or by the other Loan Documents and the exercise by the Administrative Agent or any Lender Party of its rights under the Loan Documents, except for authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect.
(e)This Guaranty Supplement has been duly executed and delivered by each undersigned and general partner or managing member (if any) of each undersigned party thereto. This Guaranty Supplement is the legal, valid and binding obligation of the undersigned party, enforceable against the undersigned in accordance with its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, examinership or similar laws affecting creditors’ rights generally and by general principles of equity.
(f)Each undersigned has, independently and without reliance upon the Administrative Agent or any other Lender Party and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Guaranty Supplement, and each undersigned has established adequate means of obtaining from each other Loan Party on a continuing basis information pertaining to, and is now and on a continuing basis will be completely familiar with, the business and financial condition of such other Loan Party.
Section 4. Delivery by Facsimile; Electronic Signature Pages. Delivery of an executed counterpart of a signature page to this Guaranty Supplement by facsimile or e-mail (which e-mail shall include an attachment in PDF format or similar format containing the legible signature of the undersigned) shall be effective as delivery of an original executed counterpart of this Guaranty Supplement. The words “execution,” “signed,” “signature,” and words of like import in this Guaranty Supplement shall be deemed to include electronic signatures or electronic records, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act. Notwithstanding anything contained herein to the contrary, the Administrative Agent is under no obligation to accept an electronic signature in any form or in any format unless expressly agreed to by the Administrative Agent pursuant to procedures approved by it.
Exh. C - 3
Digital Realty Trust, L.P. – Form of Guaranty Supplement
Section 5.Governing Law; Jurisdiction; Waiver of Jury Trial, Etc. (a) This Guaranty Supplement shall be governed by, and construed in accordance with, the laws of the State of New York.
(b)The undersigned hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any New York State court or any Federal court of the United States of America sitting in New York County, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Guaranty Supplement, the Guaranty, the Credit Agreement or any of the other Loan Documents to which it is or is to be a party, or for recognition or enforcement of any judgment, and the undersigned hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in any such New York State court or, to the extent permitted by law, in such Federal court. The undersigned agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Guaranty Supplement or the Guaranty or the Credit Agreement or any other Loan Document shall affect any right that any party may otherwise have to bring any action or proceeding relating to this Guaranty Supplement, the Credit Agreement, the Guaranty thereunder or any of the other Loan Documents to which it is or is to be a party in the courts of any other jurisdiction.
(c)The undersigned irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Guaranty Supplement, the Credit Agreement, the Guaranty or any of the other Loan Documents to which it is or is to be a party in any New York State or federal court. The undersigned hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such suit, action or proceeding in any such court.
(d)THE UNDERSIGNED HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS, THE FACILITY, THE ADVANCES OR THE ACTIONS OF ANY SECURED PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
Very truly yours,
[NAME OF ADDITIONAL GUARANTOR]
By: Name:
Title:
Exh. C - 4
Digital Realty Trust, L.P. – Form of Guaranty Supplement
EXHIBIT D to the THIRD AMENDED AND RESTATED GLOBAL SENIOR CREDIT AGREEMENT
FORM OF ASSIGNMENT AND ACCEPTANCE
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Third Amended and Restated Global Senior Credit Agreement, dated as of September 24, 2024 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”; the terms defined therein, unless otherwise defined herein, being used herein as therein defined), among Digital Realty Trust, L.P., a Maryland limited partnership, as a Borrower, Digital Realty Trust, Inc., as Parent Guarantor, the other Guarantors party thereto from time to time, the other Borrowers party thereto from time to time, the Lender Parties party thereto and Citibank, N.A., as Administrative Agent for the Lender Parties.
Each “Assignor” referred to on Schedule 1 hereto (each, an “Assignor”) and each “Assignee” referred to on Schedule 1 hereto (each, an “Assignee”) agrees severally with respect to all information relating to it and its assignment hereunder and on Schedule 1 hereto as follows:
1.Such Assignor hereby sells and assigns, without recourse except as to the representations and warranties made by it herein, to such Assignee, and such Assignee hereby purchases and assumes from such Assignor, an interest in and to such Assignor’s rights and obligations under the Credit Agreement as of the date hereof equal to the percentage interest specified on Schedule 1 hereto of all outstanding rights and obligations under the Credit Agreement Tranches and Subfacilities specified on Schedule 1 hereto. After giving effect to such sale and assignment, such Assignee’s Commitments and the amount of the Advances owing to such Assignee will be as set forth on Schedule 1 hereto.
2.Such Assignor (a) represents and warrants that its name set forth on Schedule 1 hereto is its legal name, that it is the legal and beneficial owner of the interest or interests being assigned by it hereunder and that such interest or interests are free and clear of any adverse claim; (b) makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (c) makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; and (d) attaches the Note or Notes (if any) held by such Assignor and requests that the Administrative Agent exchange such Note or Notes for a new Note or Notes payable to the order of such Assignee in an amount equal to the Commitments assumed by such Assignee pursuant hereto or new Notes payable to the order of such Assignee in an amount equal to the Commitments assumed by such Assignee pursuant hereto and such Assignor in an amount equal to the Commitments retained by such Assignor under the Credit Agreement, respectively, as specified on Schedule 1 hereto.
3.Such Assignee (a) represents and warrants that it is legally authorized to enter into this Assignment and Acceptance; (b) confirms that it has received a copy of the Credit Agreement, together with copies of the financial statements referred to in Section 4.01(g) and (h) thereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Acceptance; (c) agrees that it will, independently and without reliance upon
Exh. D - 1
Digital Realty Trust, L.P. – Form of Assignment and Acceptance
the Administrative Agent, the Sustainability Structuring Agent, any Assignor or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (d) represents and warrants that its name set forth on Schedule 1 hereto is its legal name; (e) confirms that it is an Eligible Assignee;
(f) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated the Administrative Agent by the terms thereof, together with such powers and discretion as are reasonably incidental thereto;
(g)agrees that it will perform in accordance with their terms all of the obligations that by the terms of the Credit Agreement are required to be performed by it as a Lender Party; (h) attaches any U.S. Internal Revenue Service forms required under Section 2.12 of the Credit Agreement; and (i) confirms that if the principal amount of the assignment set forth in Schedule I hereto (A) is less than the minimum amount set forth in Section 9.07(n) of the Credit Agreement and (B) has been made to a Borrower domiciled in The Netherlands, then it is a professional market party within the meaning of the Dutch Financial Supervision Act.
4.[Such Assignee confirms, for the benefit of the Administrative Agent and without liability to any Loan Party, that it is: (a) [a UK Qualifying Lender (other than a UK Treaty Lender);] (b) [a UK Treaty Lender;] (c) [not a UK Qualifying Lender].]8
5.[Such Assignee confirms, for the benefit of the Administrative Agent and without liability to any Loan Party, that it is: (a) [a French Qualifying Lender (other than a French Treaty Lender);]
(b) [a French Treaty Lender;] (c) [not a French Qualifying Lender].]9
6.Such Assignee confirms that it is not incorporated or acting through a Lending Office situated in a Non-Cooperative Jurisdiction.
7.[Such Assignee confirms that it holds a passport under the HMRC DT Treaty Passport scheme (reference number [●]) and is tax resident in [●], so that interest payable to it by Borrowers is generally subject to full exemption from UK withholding tax and requests that the Parent Guarantor notify: (a) each UK Borrower which is a Loan Party as at the Transfer Date; and (b) each UK Borrower which becomes an Additional Borrower after the Transfer Date, that it wishes that scheme to apply to the Credit Agreement.]10
8.[Such Assignee confirms that the person beneficially entitled to interest payable to such Assignee is either: (a) a company resident in the UK for UK tax purposes; (b) a partnership each member of which is: (i) a company so resident in the UK; or (ii) a company not so resident in the UK which carries on a trade in the UK through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of Section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or (c) a company not so resident in the UK which carries on a trade in the UK through a permanent establishment and which brings
8Each Assignee which is a lender in respect of a UK Borrower is required to confirm which of these three categories it falls within.
9Each Assignee is required to confirm which of these three categories it falls within.
10Include if the Assignee holds a passport under the HMRC DT Treaty Passport scheme and wishes that scheme to apply to the Credit Agreement in relation to a UK Borrower.
Exh. D - 2
Digital Realty Trust, L.P. – Form of Assignment and Acceptance
into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of Section 19 of the CTA) of that company.]11
9.Following the execution of this Assignment and Acceptance, it will be delivered to the Administrative Agent for acceptance and recording by the Administrative Agent. The effective date for this Assignment and Acceptance (the “Effective Date”) shall be the date of acceptance hereof by the Administrative Agent, unless otherwise specified on Schedule 1 hereto.
10.Upon such acceptance and recording by the Administrative Agent, as of the Effective Date, (a) such Assignee shall be a party to the Credit Agreement and, to the extent provided in this Assignment and Acceptance, have the rights and obligations of a Lender Party thereunder and (b) such Assignor shall, to the extent provided in this Assignment and Acceptance, relinquish its rights and be released from its obligations under the Credit Agreement (other than its rights and obligations under the Loan Documents that are specified under the terms of such Loan Documents to survive the payment in full of the Obligations of the Loan Parties under the Loan Documents to the extent any claim thereunder relates to an event arising prior to the Effective Date of this Assignment and Acceptance) and, if this Assignment and Acceptance covers all of the remaining portion of the rights and obligations of such Assignor under the Credit Agreement, such Assignor shall cease to be a party thereto.
11.Upon such acceptance and recording by the Administrative Agent, from and after the Effective Date, the Administrative Agent shall make all payments under the Credit Agreement and the Notes in respect of the interest assigned hereby (including, without limitation, all payments of principal, interest and commitment fees with respect thereto) to such Assignee. Such Assignor and such Assignee shall make all appropriate adjustments in payments under the Credit Agreement and the Notes for periods prior to the Effective Date directly between themselves.
12.This Assignment and Acceptance shall be governed by, and construed in accordance with, the laws of the State of New York.
13.This Assignment and Acceptance 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 one and the same agreement. Delivery of an executed counterpart of Schedule 1 to this Assignment and Acceptance by facsimile or e-mail (which e- mail shall include an attachment in PDF format or similar format containing the legible signature of the person executing this Assignment and Acceptance) shall be effective as delivery of an original executed counterpart of this Assignment and Acceptance.
IN WITNESS WHEREOF, each Assignor and each Assignee have caused Schedule 1 to this Assignment and Acceptance to be executed by their officers thereunto duly authorized as of the date specified thereon.
11 Include if Assignee is a UK Qualifying Non-Bank Lender in relation to a UK Borrower.
Exh. D - 3
Digital Realty Trust, L.P. – Form of Assignment and Acceptance
SCHEDULE 1 to ASSIGNMENT AND ACCEPTANCE
ASSIGNORS: | | | | | |
U.S. Dollar Revolving Credit Tranche | | | | | |
Percentage interest assigned | % | % | % | % | % |
U.S. Dollar Revolving Credit Commitment assigned | $ | $ | $ | $ | $ |
Aggregate outstanding principal amount of U.S. Dollar Revolving Credit Advances assigned | $ | $ | $ | $ | $ |
U.S. Dollar Letter of Credit Facility | | | | | |
U.S. Dollar Letter of Credit Commitment assigned | $ | $ | $ | $ | $ |
U.S. Dollar Letter of Credit Commitment retained | $ | $ | $ | $ | $ |
Multicurrency Revolving Credit Tranche | | | | | |
Percentage interest assigned | % | % | % | % | % |
Multicurrency Revolving Credit Commitment assigned | $ | $ | $ | $ | $ |
Aggregate outstanding principal amount of Multicurrency Revolving Credit Advances assigned | $ | $ | $ | $ | $ |
Multicurrency Letter of Credit Facility | | | | | |
Multicurrency Letter of Credit Commitment assigned | $ | $ | $ | $ | $ |
Multicurrency Letter of Credit Commitment retained | $ | $ | $ | $ | $ |
Australian Dollar Revolving Credit Tranche | | | | | |
Percentage interest assigned | % | % | % | % | % |
Australian Dollar Revolving Credit Commitment assigned | A$ | A$ | A$ | A$ | A$ |
Aggregate outstanding principal amount of Australian Dollar Revolving Credit Advances assigned | A$ | A$ | A$ | A$ | A$ |
Australian Letter of Credit Facility | | | | | |
Australian Letter of Credit Commitment assigned | A$ | A$ | A$ | A$ | A$ |
Australian Letter of Credit Commitment retained | A$ | A$ | A$ | A$ | A$ |
Singapore Dollar Revolving Credit Tranche | | | | | |
Percentage interest assigned | % | % | % | % | % |
Singapore Dollar Revolving Credit Commitment assigned | S$ | S$ | S$ | S$ | S$ |
Aggregate outstanding principal amount of Singapore Dollar Revolving Credit Advances assigned | S$ | S$ | S$ | S$ | S$ |
Singapore Letter of Credit Facility | | | | | |
Singapore Letter of Credit Commitment assigned | S$ | S$ | S$ | S$ | S$ |
Exh. D - 4
Digital Realty Trust, L.P. – Form of Assignment and Acceptance
Singapore Letter of Credit Commitment retained | S$ | S$ | S$ | S$ | S$ |
KRW-A Revolving Credit Tranche | | | | | |
Percentage interest assigned | % | % | % | % | % |
KRW-A Revolving Credit Commitment assigned | KRW | KRW | KRW | KRW | KRW |
Aggregate outstanding principal amount of KRW-A Revolving Credit Advances assigned | KRW | KRW | KRW | KRW | KRW |
KRW-A Letter of Credit Facility | | | | | |
KRW-A Letter of Credit Commitment assigned | KRW | KRW | KRW | KRW | KRW |
KRW-A Letter of Credit Commitment retained | KRW | KRW | KRW | KRW | KRW |
KRW-B Revolving Credit Tranche | | | | | |
Percentage interest assigned | % | % | % | % | % |
KRW-B Revolving Credit Commitment assigned | KRW | KRW | KRW | KRW | KRW |
Aggregate outstanding principal amount of KRW-B Revolving Credit Advances assigned | KRW | KRW | KRW | KRW | KRW |
KRW-B Letter of Credit Facility | | | | | |
KRW-B Letter of Credit Commitment assigned | KRW | KRW | KRW | KRW | KRW |
KRW-B Letter of Credit Commitment retained | KRW | KRW | KRW | KRW | KRW |
IDR Revolving Credit Tranche | | | | | |
Percentage interest assigned | % | % | % | % | % |
IDR Revolving Credit Commitment assigned | IDR | IDR | IDR | IDR | IDR |
Aggregate outstanding principal amount of IDR Revolving Credit Advances assigned | IDR | IDR | IDR | IDR | IDR |
IDR Letter of Credit Facility | | | | | |
IDR Letter of Credit Commitment assigned | IDR | IDR | IDR | IDR | IDR |
IDR Letter of Credit Commitment retained | IDR | IDR | IDR | IDR | IDR |
[Insert Name of Supplemental Tranche] | | | | | |
Percentage interest assigned | % | % | % | % | % |
Supplemental Tranche Commitment relating to such Supplemental Tranche assigned | | | | | |
Aggregate outstanding principal amount of Supplemental Tranche Advances relating to such Supplemental Tranche assigned | | | | | |
Principal Amount of Note Payable to Assignor | | | | | |
ASSIGNEES: | | | | | |
U.S. Dollar Revolving Credit Tranche | | | | | |
Percentage interest assumed | % | % | % | % | % |
U.S. Dollar Revolving Credit Commitment assumed | $ | $ | $ | $ | $ |
Exh. D - 5
Digital Realty Trust, L.P. – Form of Assignment and Acceptance
Aggregate outstanding principal amount of U.S. Dollar Revolving Credit Advances assumed | $ | $ | $ | $ | $ |
U.S. Dollar Letter of Credit Facility | | | | | |
U.S. Dollar Letter of Credit Commitment assumed | $ | $ | $ | $ | $ |
Multicurrency Revolving Credit Tranche | | | | | |
Percentage interest assumed | % | % | % | % | % |
Multicurrency Revolving Credit Commitment assumed | $ | $ | $ | $ | $ |
Aggregate outstanding principal amount of Multicurrency Revolving Credit Advances assumed | $ | $ | $ | $ | $ |
Multicurrency Letter of Credit Facility | | | | | |
Multicurrency Letter of Credit Commitment assumed | $ | $ | $ | $ | $ |
Australian Dollar Revolving Credit Tranche | | | | | |
Percentage interest assumed | % | % | % | % | % |
Australian Dollar Revolving Credit Commitment assumed | A$ | A$ | A$ | A$ | A$ |
Aggregate outstanding principal amount of Australian Dollar Revolving Credit Advances assumed | A$ | A$ | A$ | A$ | A$ |
Australian Letter of Credit Facility | | | | | |
Australian Letter of Credit Commitment assumed | A$ | A$ | A$ | A$ | A$ |
Singapore Dollar Revolving Credit Tranche | | | | | |
Percentage interest assumed | % | % | % | % | % |
Singapore Dollar Revolving Credit Commitment assumed | S$ | S$ | S$ | S$ | S$ |
Aggregate outstanding principal amount of Singapore Dollar Revolving Credit Advances assumed | S$ | S$ | S$ | S$ | S$ |
Singapore Letter of Credit Facility | | | | | |
Singapore Letter of Credit Commitment assumed | S$ | S$ | S$ | S$ | S$ |
KRW-A Revolving Credit Tranche | | | | | |
Percentage interest assumed | % | % | % | % | % |
KRW-A Revolving Credit Commitment assumed | KRW | KRW | KRW | KRW | KRW |
Aggregate outstanding principal amount of KRW-A Revolving Credit Advances assumed | KRW | KRW | KRW | KRW | KRW |
KRW-A Letter of Credit Facility | | | | | |
KRW-A Letter of Credit Commitment assumed | KRW | KRW | KRW | KRW | KRW |
KRW-B Revolving Credit Tranche | | | | | |
Percentage interest assumed | % | % | % | % | % |
Exh. D - 6
Digital Realty Trust, L.P. – Form of Assignment and Acceptance
KRW-B Revolving Credit Commitment assumed | KRW | KRW | KRW | KRW | KRW |
Aggregate outstanding principal amount of KRW-B Revolving Credit Advances assumed | KRW | KRW | KRW | KRW | KRW |
KRW-B Letter of Credit Facility | | | | | |
KRW-B Letter of Credit Commitment assumed | KRW | KRW | KRW | KRW | KRW |
IDR Revolving Credit Tranche | | | | | |
Percentage interest assumed | % | % | % | % | % |
IDR Revolving Credit Commitment assumed | IDR | IDR | IDR | IDR | IDR |
Aggregate outstanding principal amount of IDR Revolving Credit Advances assumed | IDR | IDR | IDR | IDR | IDR |
IDR Letter of Credit Facility | | | | | |
IDR Letter of Credit Commitment assumed | IDR | IDR | IDR | IDR | IDR |
[Insert Name of Supplemental Tranche] | | | | | |
Percentage interest assumed | % | % | % | % | % |
Supplemental Tranche Commitment relating to such Supplemental Tranche assumed | | | | | |
Aggregate outstanding principal amount of Supplemental Tranche Advances relating to such Supplemental Tranche assumed | | | | | |
Principal Amount of Note Payable to Assignee | | | | | |
ASSIGNEE’S STANDING PAYMENT INSTRUCTIONS:
Correspondent Bank Name: Correspondent Bank SWIFT Address: Beneficiary Bank Account Number: Beneficiary Bank Account Name: Beneficiary Bank SWIFT Address: Final Beneficiary Account Number: Final Beneficiary Account Name: Attention:
Exh. D - 7
Digital Realty Trust, L.P. – Form of Assignment and Acceptance
Effective Date (if other than date of acceptance by Administrative Agent):
12,
Assignors
, as Assignor [Type or print legal name of Assignor]
By Title:
Dated: ,
, as Assignor [Type or print legal name of Assignor]
By Title:
Dated: ,
, as Assignor [Type or print legal name of Assignor]
By Title:
Dated: ,
, as Assignor [Type or print legal name of Assignor]
By Title:
Dated: ,
Exh. D - 8
Digital Realty Trust, L.P. – Form of Assignment and Acceptance
This date should be no earlier than five Business Days after the delivery of this Assignment and Acceptance to the Administrative Agent. |
Exh. D - 9
Digital Realty Trust, L.P. – Form of Assignment and Acceptance
Assignees
, as Assignee [Type or print legal name of Assignee]
By Title:
E-mail address for notices: Dated: ,
Applicable Lending Offices:
, as Assignee [Type or print legal name of Assignee]
By Title:
E-mail address for notices: Dated: ,
Applicable Lending Offices:
, as Assignee [Type or print legal name of Assignee]
By Title:
E-mail address for notices: Dated: ,
Applicable Lending Offices:
, as Assignee [Type or print legal name of Assignee]
By Title:
E-mail address for notices: Dated: ,
Applicable Lending Offices:
Exh. D - 10
Digital Realty Trust, L.P. – Form of Assignment and Acceptance
Accepted [and Approved] this day of ,
CITIBANK, N.A.,
as Administrative Agent
By Name:
Title:
[Approved this day of ,
DIGITAL REALTY TRUST, L.P.
By: | Digital Realty Trust, Inc., its Sole General Partner |
By Name:
Title:]
Exh. D - 11
Digital Realty Trust, L.P. – Form of Assignment and Acceptance
EXHIBIT E to the THIRD AMENDED AND RESTATED GLOBAL SENIOR CREDIT AGREEMENT
FORM OF UNENCUMBERED ASSETS CERTIFICATE
UNENCUMBERED ASSETS CERTIFICATE
Digital Realty Trust, L.P.
Unencumbered Assets Certificate [Quarter][Fiscal Year] ended / / (the “Calculation Date”)
Citibank, N.A.,
as Administrative Agent under the Credit Agreement referred to below
1615 Brett Road, Ops III New Castle, Delaware 19720 United States of America
Attention: Agency Operations
Pursuant to Section [3.01(a)(xxiii) / 5.03(e)] of that certain Third Amended and Restated Global Senior Credit Agreement, dated as of September 24, 2024, Digital Realty Trust, L.P., a Maryland limited partnership, as a Borrower, Digital Realty Trust, Inc., a Maryland corporation (the “Parent Guarantor”), the other Borrowers party thereto from time to time, the other Guarantors party thereto from time to time, the Lender Parties party thereto from time to time and Citibank, N.A., as Administrative Agent for the Lender Parties (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”; capitalized terms used herein but not defined herein being used herein as defined in the Credit Agreement), the undersigned, the Chief Financial Officer or a Responsible Officer of the Parent Guarantor, hereby certifies and represents and warrants on behalf of the Borrowers as follows:
1.The information contained in this certificate and the attached information supporting the calculation of the Total Unencumbered Asset Value is true and correct as of the close of business on the Calculation Date and has been prepared in accordance with the provisions of the Credit Agreement.
2.The Total Unencumbered Asset Value is $ as of the Calculation Date as more fully described on Schedule I hereto.
3.[As of the Calculation Date, Unsecured Debt does not exceed the Maximum Unsecured Debt Percentage of Total Unencumbered Asset Value, in accordance with Section 5.04(b)(i) of the Credit Agreement.]1
1 Not required if Parent Guarantor achieves a Debt Rating of at least BBB+ / Baa1 and a Total Asset Value of at least $35,000,000,000.
Exh. E - 1
Digital Realty Trust, L.P. – Form of Unencumbered Assets Certificate
4.As of the Calculation Date, the Parent Guarantor maintained an Unencumbered Assets Debt Service Coverage Ratio of not less than 1.50:1.00, in accordance with Section 5.04(b)(ii) of the Credit Agreement.
5.Attached hereto as Schedule II is an updated schedule of Unencumbered Assets listing all of the Unencumbered Assets as of the Calculation Date, in accordance with Section 5.03(e) of the Credit Agreement.
6.The Unencumbered Assets comply with all Unencumbered Asset Conditions (except to the extent waived in writing by the Required Lenders).
[Remainder of page intentionally left blank]
Exh. E - 2
Digital Realty Trust, L.P. – Form of Unencumbered Assets Certificate
DIGITAL REALTY TRUST, INC.
By Name:
Title:
Exh. E - 3
Digital Realty Trust, L.P. – Form of Unencumbered Assets Certificate
SCHEDULE I
Calculation of Total Unencumbered Asset Value
(a)Sum of Asset Values for all Unencumbered Assets (from charts below) | | $ | |
(b)Unrestricted cash and Cash Equivalents minus the amount of such cash and Cash Equivalents deducted pursuant to the definition of “Consolidated Debt” | $ | | |
(c)The sum of (a) and (b) above | $ | | |
(d)(i)Minus the amount by which (x) the sum of Asset Values of all undeveloped land, Redevelopment Assets, Development Assets and Assets owned or leased by Controlled Joint Ventures and Leased Assets exceeds (y) 40% of the amount in (c) | $[ ] | | |
(ii) Minus the amount by which (x) the sum of Asset Values of all Leased Assets exceeds (y) 20% of the amount in (c) | $[ ] | | |
(iii) Minus the amount by which (x) the sum of Asset Values of all Short-Term Leased Assets exceeds (y) 5% of the amount in (c) | $[ ] | | |
(iv) Minus the amount by which (x) the sum of Asset Values of all Assets located outside of Specified Jurisdictions plus Asset Values of all Assets located in Brazil, South Africa and South Korea exceeds (y) 20% of the amount in (c) | $[ ] | | |
(v) Minus the amount by which (x) the sum of Asset Values of all Assets located in Brazil, South Africa and South Korea exceeds (y) 15% of the amount in (c) | $[ ] | | |
| | | |
Total Unencumbered Asset Value equals the dollar amount in (c) minus the dollar amounts in (d)(i) – (v): | $ | | $ |
Sch. I - 1
Digital Realty Trust, L.P. – Form of Unencumbered Assets Certificate
Calculation of Asset Value (Technology Asset)
Technology Asset: [Insert Name] | |||
(A) Net Operating Income attributable to such Unencumbered Asset for the fiscal quarter of the Parent Guarantor most recently ended for which financial statements are required to be delivered to the Administrative Agent pursuant to the Credit Agreement | $ | | |
(B) (1) 2% of all rental income (other than tenant reimbursements) from the operation of such Unencumbered Asset for the fiscal quarter of the Parent Guarantor most recently ended for which financial statements are required to be delivered to the Administrative Agent pursuant to the Credit Agreement (2) all management fees payable in respect of such Unencumbered Asset for such fiscal quarterly period (1) minus (2) (insert 0 if negative number) equals: | $ $ $ | | |
(C) Intentionally deleted. | $ | | |
(D) Calculate (4x(A-B)): | $ | | |
(E) If the Unencumbered Asset was acquired during the applicable fiscal quarter, upward adjustment in an amount equal to the actual NOI for the applicable fiscal quarter or If the Unencumbered Asset was disposed of during the applicable fiscal quarter, downward adjustment in an amount equal to the actual NOI for the applicable fiscal quarter. | $ ($) | | |
| | | |
Sch. I - 2
Digital Realty Trust, L.P. – Form of Unencumbered Assets Certificate
(F) Insert Amount from (D) Insert amount from (E) Equals | | $ plus/minus $ equals $ | |
(G)Amount of pro forma upward adjustment for Tenancy Leases entered into during the quarter in the ordinary course of business | $ | | |
(H) Asset Value equals (F +G) ÷ either 6.50% (if an Asset other than a Leased Asset) or 8.75% (if a Leased Asset other than a Short-Term Leased Asset) | | $ | |
(I) If Unencumbered Asset was acquired within last 12 months, the acquisition price | $ | | |
(J) Asset Value (Technology Assets other than Short-Term Leased Assets): If Unencumbered Asset was acquired within last 12 months, insert greater of (H) and (I). If Unencumbered Asset was acquired 12 or more months ago, insert (H). or Asset Value (Technology Assets that are Short-Term Leased Assets): Insert the Short-Term Leased Asset Book Value | $ $ | | $ |
Calculation of Asset Value (Redevelopment Asset / Development Asset)
Sch. I - 3
Digital Realty Trust, L.P. – Form of Unencumbered Assets Certificate
Redevelopment Asset: [Insert Name] | |
Asset Value for Redevelopment Asset that is not a Short-Term Leased Asset: equals the book value of such Asset as determined in accordance with GAAP (but determined without giving effect to any depreciation): or Asset Value for Redevelopment Asset that is a Short-Term Leased Asset: equals the Short-Term Leased Asset Book Value: | $ |
Development Asset: [Insert Name] | |
Asset Value for Development Asset that is not a Short-Term Leased Asset equals the book value of such Asset as determined in accordance with GAAP (but determined without giving effect to any depreciation): or Asset Value for Development Asset that is a Short-Term Leased Asset: equals the Short-Term Leased Asset Book Value: | $ |
Calculation of Asset Value (Unconsolidated Affiliate Asset)
Unconsolidated Affiliate Asset that, but for such Asset being owned or leased by an Unconsolidated Affiliate (other than an asset that is leased by the Operating Partnership or a Subsidiary thereof pursuant to a lease (other than a ground lease), a former Development Asset or a former Redevelopment Asset), would qualify as a Technology Asset under the definition thereof: [Insert Name] | |||
(A) Net Operating Income attributable to such Unencumbered Asset for the fiscal quarter of the Parent Guarantor most recently ended for which financial statements are required to be delivered to the Administrative Agent pursuant to the Credit Agreement | $ | | |
Sch. I - 4
Digital Realty Trust, L.P. – Form of Unencumbered Assets Certificate
(B) (1) 2% of all rental income (other than tenant reimbursements) from the operation of such Unencumbered Asset for the fiscal quarter of the Parent Guarantor most recently ended for which financial statements are required to be delivered to the Administrative Agent pursuant to the Credit Agreement (2) all management fees payable in respect of such Unencumbered Asset for such fiscal quarterly period (1) minus (2) (insert 0 if negative number) equals: | $ $ $ | | |
(C) Intentionally deleted. | $ | | |
(D) Calculate (4x(A-B)): | $ | | |
(E) If the Unencumbered Asset was acquired during the applicable fiscal quarter, upward adjustment in an amount equal to the actual NOI for the applicable fiscal quarter or If the Unencumbered Asset was disposed of during the applicable fiscal quarter, downward adjustment in an amount equal to the actual NOI for the applicable fiscal quarter. | $ ($) | | |
| | | |
(F) Insert Amount from (D) Insert amount from (E) Equals | | $ plus/minus $ equals $ | |
Sch. I - 5
Digital Realty Trust, L.P. – Form of Unencumbered Assets Certificate
(G)Amount of pro forma upward adjustment -for new leases, subleases, real estate licenses, occupancy agreements and rights of use entered into during the quarter in the ordinary course of business | $ | | |
(H) Asset Value equals the JV Pro Rata Share of (F +G) ÷ either 6.50% (if an Asset other than a Leased Asset) or 8.75% (if a Leased Asset other than a Short-Term Leased Asset) | | $ | |
(I) If the Unencumbered Asset was acquired within last 12 months, the JV Pro Rata Share of the acquisition price | $ | | |
(J) Asset Value (Unencumbered Affiliate Assets other than Short-Term Leased Assets): If Unencumbered Asset was acquired within last 12 months, insert greater of (H) and (I). If Unencumbered Asset was acquired 12 or more months ago, insert (H). or Asset Value (Unencumbered Affiliate Assets that are Short-Term Leased Assets): Insert the JV Pro Rata Share of the Short-Term Leased Asset Book Value or Asset Value (Unencumbered Affiliate Assets that are not described above): Insert the JV Pro Rata Share of the book value of such Unconsolidated Affiliate Asset determined in accordance with GAAP (but determined without giving effect to any depreciation) of such Unconsolidated Affiliate Asset | $ $ | | $ |
Sch. I - 6
Digital Realty Trust, L.P. – Form of Unencumbered Assets Certificate
Sum of Asset Values for Unencumbered Assets
$
Sum of Asset Values for all Unencumbered Assets
Sch. I - 7
Digital Realty Trust, L.P. – Form of Unencumbered Assets Certificate
SCHEDULE II
Schedule of Unencumbered Assets
Sch. II - 1
Digital Realty Trust, L.P. – Form of Unencumbered Assets Certificate 4887-5314-9156.3
[INSERT SIGNATURE BLOCK FOR EACH LOAN PARTY]
Exh. E
Digital Realty Trust, L.P. – Form of Unencumbered Assets Certificate 4887-5314-9156.3
EXHIBIT F TO THE THIRD AMENDED AND RESTATED GLOBAL SENIOR CREDIT AGREEMENT
RESERVED
Exh. F - 1
Digital Realty Trust, L.P. 4887-5314-9156.3
EXHIBIT G to the THIRD AMENDED AND RESTATED GLOBAL SENIOR CREDIT AGREEMENT
FORM OF SUPPLEMENTAL ADDENDUM
SUPPLEMENTAL ADDENDUM
To: Lenders under the Supplemental Tranche (as defined below) Ladies and Gentlemen:
Reference is made to the Third Amended and Restated Global Senior Credit Agreement, dated as of September 24, 2024 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”; the terms defined therein, unless otherwise defined herein, being used herein as therein defined), among Digital Realty Trust, L.P., a Maryland limited partnership, as Borrower, Digital Realty Trust, Inc., as Parent Guarantor, the other Guarantors party thereto from time to time, the other Borrowers party thereto from time to time, the Lender Parties party thereto from time to time and Citibank, N.A., as Administrative Agent for the Lender Parties.
Pursuant to Section 2.20(a) of the Credit Agreement, the Borrowers hereby request a Supplemental Tranche (the “Supplemental Tranche”) on the terms and conditions set forth below:
1.A Supplemental Tranche with aggregate Supplemental Tranche Commitments in the amount of in the Supplemental Currency indicated below.
2.The Supplemental Currency shall be .
3.The existing Borrower or the Additional Borrower that will be the Supplemental Borrower with respect to the Supplemental Tranche: .
4.The Supplemental Tranche shall bear interest as follows (including, if applicable, the ScreenRateandQuotationDayfortheSupplementalTranche):
.
5.The Applicable Lending Office of each Lender with a Supplemental Tranche Commitment in respect of the Supplemental Tranche and such Supplemental Tranche Commitments are set forth on an updated Schedule I to the Credit Agreement attached hereto.
6.Certain deadlines in the Credit Agreement as they relate to the Supplemental Tranche shall be as follows:
(a)Notice of Borrowing Deadline: | |
(b)Interest Period Notice Deadline: | |
(c)Funding Deadline: | |
(d)Increase Agent Notice Deadline: | |
(e)Increase Funding Deadline: | |
(f)Reallocation Agent Notice Deadline: | |
(g)Reallocation Funding Deadline: | |
Exh. G - 1
Digital Realty Trust, L.P. – Form of Supplemental Addendum 4887-5314-9156.3
(h) | Prepayment Notice Deadline: |
7.OthertermsandprovisionsrelatingtotheSupplementalTranche:
The Borrowers confirm that the conditions to the creation of the Supplemental Tranche set forth in Section 2.20(a) of the Credit Agreement have been satisfied.
This Supplemental Addendum supplements the Credit Agreement. To the extent of any inconsistency between the terms of this Supplemental Addendum and the terms of the Credit Agreement, the terms of this Supplemental Addendum shall prevail and govern to the extent of such inconsistency.
This Supplemental Addendum shall constitute a Loan Document under the Credit Agreement and shall be governed by the law of the State of New York.
Very truly yours,
[NAME OF SUPPLEMENTAL BORROWER]
By: Name:
Title:
Approved and agreed as of the Supplemental Tranche Effective Date (as defined below):
[INSERT SIGNATURE BLOCK FOR EACH OTHER LOAN PARTY]
Approved and agreed this day of ,
(the “Supplemental Tranche Effective Date”)
CITIBANK, N.A.,
as Administrative Agent
By Name:
Title:
[INSERT SIGNATURE BLOCK FOR EACH LENDER MAKING
A SUPPLEMENTAL TRANCHE COMMITMENT WITH RESPECT TO THE APPLICABLE SUPPLEMENTAL TRANCHE AND, IF APPLICABLE, THE FUNDING AGENT]
Exh. G - 1
Digital Realty Trust, L.P. – Form of Supplemental Addendum 4887-5314-9156.3
EXHIBIT H to the THIRD AMENDED AND RESTATED GLOBAL SENIOR CREDIT AGREEMENT
FORM OF BORROWER ACCESSION AGREEMENT
BORROWER ACCESSION AGREEMENT
Citibank, N.A.,
as Administrative Agent under the Credit Agreement referred to below
1615 Brett Road, Ops III New Castle, Delaware 19720 United States of America
Attention: Agency Operations
Third Amended and Restated Global Senior Credit Agreement, dated as of September 24, 2024 (as in effect on the date hereof and as it may hereafter be amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Digital Realty Trust, L.P., as a Borrower, Digital Realty Trust, Inc., as Parent Guarantor, the other Guarantors from time to time, the other Borrowers party thereto from time to time, the Lender Parties party thereto from time to time, and Citibank, N.A., as Administrative Agent for the Lender Parties.
Ladies and Gentlemen:
Reference is made to the above-captioned Credit Agreement.The capitalized terms defined in the Credit Agreement and not otherwise defined herein are used herein as therein defined.
Section 1. Accession. By its execution of this Accession Agreement, the undersigned (“Additional Borrower”) absolutely, unconditionally and irrevocably undertakes to and agrees to observe and be bound by the terms and provisions of the Credit Agreement and other Loan Documents and all of the Obligations set forth therein (including, without limitation, any extensions, modifications, substitutions, amendments or renewals of any or all of the foregoing Obligations) as if it were an original party thereto as an initial Borrower.
Section 2. Obligations under the Loan Documents. The undersigned Additional Borrower hereby agrees, as of the date first above written, to be bound as a Borrower by all of the terms and conditions of the Credit Agreement and the other Loan Documents to the same extent as each of the other Borrowers thereunder. The undersigned Additional Borrower further agrees, as of the date first above written, that each reference in the Credit Agreement and the other Loan Documents to an “Additional Borrower”, a “Loan Party”, or a “Borrower” shall also mean and be a reference to the undersigned Additional Borrower.
Section 3. Consent of Loan Parties. The existing Loan Parties hereby consent to the accession of the undersigned Additional Borrower to the Loan Documents on the terms of Sections 1 and 2 of this Accession Agreement and agree that the Loan Documents shall hereinafter be read and construed as if the undersigned Additional Borrower had been an original party in the capacity of an initial Borrower.
Exh. H - 1
Digital Realty Trust, L.P. – Form of Borrower Accession Agreement
Section 4. Representations and Warranties. As of the date hereof, the undersigned Additional Borrower hereby makes each representation and warranty set forth in Section 4.01 of the Credit Agreement to the same extent as each other Borrower.
Section 5. Delivery by Facsimile. Delivery of an executed counterpart of a signature page to this Accession Agreement by facsimile or e-mail (which e-mail shall include an attachment in PDF format or similar format containing the legible signature of the undersigned) shall be effective as delivery of an original executed counterpart of this Accession Agreement.
Section 6. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc. (a) This Accession Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
(b)The undersigned Additional Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any New York State court or any Federal court of the United States of America sitting in New York County, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Accession Agreement, the Credit Agreement, or any of the other Loan Documents to which it is or is to be a party, or for recognition or enforcement of any judgment, and the undersigned hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in any such New York State court or, to the extent permitted by law, in such Federal court. The undersigned Additional Borrower agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Accession Agreement, the Credit Agreement or any other Loan Document shall affect any right that any party may otherwise have to bring any action or proceeding relating to this Accession Agreement, the Credit Agreement or any of the other Loan Documents to which it is or is to be a party in the courts of any other jurisdiction.
(c)The undersigned Additional Borrower irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Accession Agreement, the Credit Agreement or any of the other Loan Documents to which it is or is to be a party in any New York State or Federal court. The undersigned Additional Borrower hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such suit, action or proceeding in any such court.
(d)THE UNDERSIGNED ADDITIONAL BORROWER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS, THE FACILITY OR THE ACTIONS OF ANY LENDER PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
Exh. H - 2
Digital Realty Trust, L.P. – Form of Borrower Accession Agreement
Very truly yours,
[NAME OF ADDITIONAL BORROWER]
By: Name:
Title:
Approved this day of ,
[INSERT SIGNATURE BLOCK FOR EACH LOAN PARTY]
Exh. H - 3
Digital Realty Trust, L.P. – Form of Borrower Accession Agreement
EXHIBIT I to the SECOND AMENDED AND RESTATED GLOBAL SENIOR CREDIT AGREEMENT
FORM OF PRICING CERTIFICATE
PRICING CERTIFICATE
Reference is made to that certain Third Amended and Restated Global Senior Credit Agreement dated as of September 24, 2024 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Digital Realty Trust, L.P., as a Borrower, the Guarantors party thereto from time to time, other Borrowers party thereto from time to time, the Lender Parties party thereto from time to time and Citibank, N.A., as Administrative Agent for the Lender Parties. Capitalized terms used but not otherwise defined herein shall have the meanings specified in the Credit Agreement.
The undersigned hereby certifies, solely in [his/her] capacity as Responsible Officer of the Parent Guarantor, that:
1.[He/She] is a duly appointed [insert title of Responsible Officer] of the Parent Guarantor and [he/she] is authorized to deliver this Pricing Certificate on behalf of the Parent Guarantor.
2.Attached as Annex A hereto is a true and correct copy of the KPI Metric Report for the Annual Period ending on December 31, [ ].
3.The Sustainability Facility Fee Adjustment in respect of the Annual Period described in clause 2 above is [+][-][ ] basis points per annum, and the Sustainability Margin Adjustment in respect of the Annual Period described in clause 2 above is [+][-][ ] basis points per annum, in each case as computed as set forth on Annex B hereto.
4.Attached as Annex C hereto is a review report of the KPI Metrics Auditor confirming that the KPI Metrics Auditor is not aware of any material modifications that should be made to such computations referred to in clause 3 of this Pricing Certificate in order for them to be presented in all material respects in conformity with the applicable reporting criteria.
The foregoing certifications are made and delivered this [ ] day of [ ], 202[_].
DIGITAL REALTY TRUST, INC.
By: Name:
Title:
]
Annex A
(KPI Metric Report)
]
Annex B
(Sustainability Margin Adjustment and Sustainability Facility Fee Adjustment)
]
Annex C
(Review Report of The KPI Metrics Auditor)
