Exhibit
10.4
EXECUTION VERSION
FIRST AMENDMENT AND WAIVER
(Euro Term Loan Facility)
THIS FIRST AMENDMENT AND WAIVER dated as of June 3, 2011 (this “Amendment”) amends the
Credit Agreement dated as of November 29, 2010 (the “Credit Agreement”) among AMB Property,
L.P., a Delaware limited partnership (the “Borrower”), various banks and HSBC Bank USA,
National Association, as administrative agent (the “Administrative Agent”). Capitalized
terms used but not defined herein have the respective meanings set forth in the Credit Agreement.
WHEREAS, pursuant to an Agreement and Plan of Merger dated as of January 30, 2011 (as amended,
the “Merger Agreement”) among ProLogis, a Maryland real estate investment trust (“Old
ProLogis”), AMB Property Corporation, a Maryland corporation (“AMB”), the Borrower, and
certain other parties, through a series of mergers and related transactions (the “Merger
Transactions”): (a) AMB will change its name to Prologis, Inc.; (b) the Borrower will change
its name to Prologis, L.P.; and (c) Old ProLogis will become a direct or indirect subsidiary of
Prologis, L.P.;
WHEREAS, the Borrower has requested that the Banks waive certain provisions of the Credit
Agreement in connection with the Merger Transactions, and amend the Credit Agreement in certain
respects to, among other things, account for such Merger Transactions and conform certain
provisions of the Credit Agreement to the Global Senior Credit Agreement to be entered into on or
around June 3, 2011 (the “Global Senior Credit Agreement”) among Prologis, General Partner,
various affiliates thereof, various lenders, various agents and Bank of America, N.A., as global
administrative agent and in various other capacities; and
WHEREAS, the Majority Banks have agreed to grant such waiver, and enter into such amendments,
subject to the terms and conditions hereof;
NOW, THEREFORE, in consideration of the premises and the mutual agreements set forth herein,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Waiver. The Majority Banks waive any Event of Default under Section 6.1(j)
of the Credit Agreement arising from a change in the majority of the Board of Directors of AMB
resulting from the Merger Transactions.
SECTION 2. Amendments to Credit Agreement. Effective on, and subject to the
occurrence of, the Amendment Effective Date (as defined below), the Credit Agreement shall be
amended as follows:
2.1 Representations and Warranties. The representations and warranties set forth in
Sections 4.1 (other than the last sentence thereof), 4.4, 4.5(i), 4.5(iii), 4.6 through 4.8, 4.13,
4.15, 4.16, 4.17, 4.19, 4.20, 4.21, 4.23, 4.24 and 4.26 of the Credit Agreement are deleted in
their entirety and the representations and warranties set forth in Sections 9.1(a), 9.1(b)(i),
9.1(c), 9.5, 9.6(b), 9.9, 9.10, 9.12, 9.14 and 9.18 of the Global Senior Credit Agreement with
respect to the guarantors and the borrowers under the Global Senior Credit Agreement, are
substituted therefor,
and all defined terms used, and schedules referred to, in such provisions are added in proper
alphabetical sequence to Section 1.1 of the Credit Agreement or at the end thereof in proper
numerical sequence, as applicable, in each case mutatis mutandis; it being
understood that (i) references to “Borrowers”, “Guarantors” or “Loan Party” in the Global Senior
Credit Agreement as incorporated by reference into the Credit Agreement shall be deemed to be
references to the “Borrower” and the “Guarantor”, as applicable, under the Credit Agreement (as
such terms are amended hereby) and (ii) references to “Loan Documents” in the Global Senior Credit
Agreement as incorporated by reference into the Credit Agreement shall be deemed to be references
to the “Loan Documents” under the Credit Agreement.
2.2 Covenants. The affirmative and negative covenants set forth in Sections 5.1
through 5.14 of the Credit Agreement are deleted in their entirety and the covenants set forth in
Sections 10.1, 10.2, 10.3, 10.4, 10.5, 10.6, 10.7, 10.8, 10.9, 10.10, 10.12, 11.1, 11.2, 11.3,
11.4, 11.5, 11.6 and 11.8 of the Global Senior Credit Agreement with respect to the guarantors and
borrowers under the Global Senior Credit Agreement are substituted therefor, and all defined terms
used, and schedules referred to, in such provisions are added in proper alphabetical sequence to
Section 1.1 of the Credit Agreement or at the end thereof in proper numerical sequence, as
applicable, in each case mutatis mutandis; it being understood that (i) references
to “Borrowers” and “Guarantors” in the Global Senior Credit Agreement as incorporated by reference
into the Credit Agreement shall be deemed to be references to the “Borrower” and the “Guarantor”,
respectively, under the Credit Agreement (as such terms are amended hereby), (ii) references to
“Loan Documents” in the Global Senior Credit Agreement as incorporated by reference into the Credit
Agreement shall be deemed to be references to the “Loan Documents” under the Credit Agreement,
(iii) references to “Global Administrative Agent” in the Global Senior Credit Agreement as
incorporated by reference into the Credit Agreement shall be deemed to be references to the
“Administrative Agent” under the Credit Agreement, (iv) references to “Lender” in the Global Senior
Credit Agreement as incorporated by reference into the Credit Agreement shall be deemed to be
references to “Bank” under the Credit Agreement, (v) references to “this Agreement” in the Global
Senior Credit Agreement as incorporated by reference into the Credit Agreement shall be deemed to
be references to “this Agreement” under the Credit Agreement, and (vi) cross-references to certain
provisions in the Global Senior Credit Agreement as incorporated by reference into the Credit
Agreement shall be deemed to be cross-references to the applicable provisions so incorporated into
the Credit Agreement.
2.3 Events of Default. The Events of Default set forth in Sections 6.1(b), 6.1(e)
through 6.1(n) of the Credit Agreement are deleted in their entirety and the events of default set
forth in Sections 12.1.2, 12.1.5, 12.1.6, 12.1.7, 12.1.8, 12.1.9 and 12.1.11 of the Global Senior
Credit Agreement with respect to the guarantors and borrowers under the Global Senior Credit
Agreement are substituted therefor, and all defined terms used, and schedules referred to, in such
provisions are added in proper alphabetical sequence to Section 1.1 of the Credit Agreement or at
the end thereof in proper numerical sequence, as applicable, in each case mutatis
mutandis; it being understood that (i) references to “Borrowers” and “Guarantors” in the
Global Senior Credit Agreement as incorporated by reference into the Credit Agreement shall be
deemed to be references to the “Borrower” and the “Guarantor”, respectively, under the Credit
Agreement (as such terms are amended hereby), other than with respect to the provisions of Section
12.1.5 of the Global Senior Credit Agreement as incorporated into the Credit Agreement by
reference, with respect to which “Borrower” shall be deemed to include also the Qualified Borrowers
under
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the Credit Agreement, (ii) references to “Loan Documents” in the Global Senior Credit
Agreement as incorporated by reference into the Credit Agreement shall be deemed to be references
to the “Loan Documents” under the Credit Agreement, and (iii) cross-references to certain
provisions in the Global Senior Credit Agreement as incorporated by reference into the Credit
Agreement shall be deemed to be cross-references to the applicable provisions so incorporated into
the Credit Agreement.
2.4 Merger Transaction Amendments.
(a) The definition of “Borrower” in Section 1.1 is amended to read in its entirety
as follows:
“Borrower” means Prologis, L.P., a Delaware limited
partnership, formerly known as AMB Property, L.P.
(b) Each reference to “AMB Property, L.P.” in the Credit Agreement shall be deemed
to be a reference to “Prologis, L.P.”.
(c) The definition of “General Partner” in Section 1.1 is amended to read in its
entirety as follows:
“General Partner” means Prologis, Inc., a Maryland corporation
qualified as a real estate investment trust and the sole general partner of
Borrower, formerly known as AMB Property Corporation.
(d) Each reference to “AMB Property Corporation” in the Credit Agreement shall be
deemed to be a reference to “Prologis, Inc.”.
(e) The definition of “Guarantor” in Section 1.1 of the Credit Agreement is
amended to read in its entirety as follows:
“Guarantor” means the General Partner in its capacity as a
guarantor under the Guaranty.
SECTION 3. Amendments to Loan Documents. Effective on, and subject to the occurrence
of, the Amendment Effective Date, each Loan Document (other than the Credit Agreement) is amended
to reflect that AMB Property, L.P. has changed its name to Prologis, L.P. and AMB Property
Corporation has changed its name to Prologis, Inc.
SECTION 4. Designation of Global Senior Credit Agreement and Yen Term Loan as “Credit
Agreements”. Upon the occurrence of the effectiveness of the Global Senior Credit Agreement,
pursuant to clause (iv) of the definition of “Credit Agreements” in Section 9.5(b) of the Credit
Agreement, the Borrower designates each of the following documents as a “Credit Agreement” for
purposes of Section 9.5(b) of the Credit Agreement: (a) the Global Senior Credit Agreement and (b)
the First Amended and Restated Credit Agreement dated as of January 11, 2010 (the “Yen Term
Loan”) among the Borrower, one or more qualified borrowers from time to time party thereto,
various lenders, JPMorgan Chase Bank, N.A., as administrative agent, and Sumitomo Mitsui Banking
Corporation as administrative agent for Yen and in various other
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capacities. For the avoidance of doubt, Schedule 9.5 hereto sets forth a list of the
“AMB Revolver Provisions” described in Section 9.5(b) of the Credit Agreement, among others
provisions, and the corresponding sections of the Global Senior Credit Agreement amending such
Credit Agreement provisions as incorporated therein by reference.
SECTION 5. Guarantor Matters. Upon the Amendment Effective Date, (a) the General
Partner, in its capacity as Guarantor, is deemed to be a party to the Credit Agreement, (b) makes
each of the representations and warranties applicable to it that are set forth in the Credit
Agreement as amended hereby and (c) agrees to comply with each of the affirmative and negative
covenants applicable to it that are set forth in the Credit Agreement as amended hereby.
SECTION 6. Representations and Warranties. Each of the Borrower and General Partner
represents and warrants to the Administrative Agent and the Banks that:
6.1 Authorization; No Conflict. The execution, delivery and performance by such
Person of this Amendment, and the consummation of the transactions contemplated hereby, (a) are
within the such Person’s limited partnership or corporate powers, as applicable, (b) have been duly
authorized by all necessary limited partnership or corporate action, as applicable, (c) do not
contravene (i) such Person’s organizational documents or (ii) any law, regulation or contractual
restriction binding on or affecting such Person and (d) will not materially conflict with or result
in any breach of, any of the terms, covenants, conditions or provisions of, or constitute a default
under, or result in the creation or imposition of (or the obligation to create or impose) any Lien
upon any of the property or assets of such Person or any of its Consolidated Subsidiaries pursuant
to the terms of any indenture, mortgage, deed of trust or other agreement or instrument to which
such Person or any of its Consolidated Subsidiaries is a party or by which it or any of its
property or assets is bound or to which it is subject.
6.2 Governmental Approvals. 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 and performance by the Borrower or the General Partner of
this Amendment.
6.3 Enforceability. This Amendment has been duly executed and delivered by each of
the Borrower and the General Partner and is the legal, valid and binding obligation of such Person,
enforceable against such Person in accordance with its terms, except as affected by (i) applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws
relating to or affecting the enforcement of creditors’ rights generally and/or (ii) general
principles of equity (regardless of whether such enforcement is considered in a proceeding at law
or in equity) (collectively, “Debtor Relief Laws”).
6.4 Representations and Warranties; No Default. On the Amendment Effective Date,
after giving effect to this Amendment, (a) each representation and warranty set forth in Article IV
of the Credit Agreement is true and correct in all material respects as of the Amendment Effective
Date with the same effect as if made as of such date (except to the extent any such representation
or warranty is expressly stated to have been made as of a specific date, in which case such
representation or warranty was true and correct as of such date); and (b) no Default or Event of
Default exists.
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SECTION 7. Effectiveness. This Amendment shall become effective on the date (the
“Amendment Effective Date”) on which the Administrative Agent has received the following:
(a) Counterparts of this Amendment executed by the Borrower, the General Partner
and the Majority Banks.
(b) A certificate of the Borrower stating that the Merger Transactions have been
consummated.
(c) Payment, in immediately available funds for the account of each Bank that
delivers a counterpart hereof, or signature page hereto, to the Administrative Agent on
or before June 3, 2011, of an amendment work fee equal to $2,500 per Bank.
(d) Reimbursement of all fees and expenses due and payable to the Administrative
Agent and incurred in connection with this Amendment (including the reasonable and
documented fees and expenses of counsel to the Administrative Agent) to the extent
invoiced at least one Business Day prior to the date upon which the Merger Transactions
are consummated.
SECTION 8. Miscellaneous.
8.1 Continuing Effectiveness, etc. (a) Except to the extent expressly set forth
herein, all of the terms and conditions of the Credit Agreement and the other Loan Documents remain
unchanged and in full force and effect. Each of the Borrower and the General Partner affirms that
after giving effect to this Amendment, the Credit Agreement and the other Loan Documents, as
modified hereby, and any other Loan Document to which the Borrower, any Qualified Borrower or
Guarantor is a party, will remain in full force and effect and will continue to constitute a legal,
valid and binding obligation of such Person, enforceable against such Person in accordance with its
terms except insofar as such enforcement may be limited by Debtor Relief Laws.
(b) Upon the effectiveness hereof, all references to the Credit Agreement or any Loan Document
set forth in any other agreement or instrument shall, unless otherwise specifically provided, be
references to the Credit Agreement or such Loan Document as amended hereby.
8.2 Counterparts. This Amendment may be executed in any number of counterparts, all of
which taken together shall constitute one and the same agreement, and any of the parties hereto may
execute this Amendment by signing any such counterpart. Delivery of a counterpart hereof, or a
signature page hereto, by facsimile or in a .pdf or similar file shall be effective as delivery of
a manually executed original counterpart thereof.
8.3 Interpretive Provisions. Defined terms used in the singular shall import the
plural and vice versa.
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8.4 Incorporation by Reference. The provisions of Sections 9.3(b), 9.6(a), 9.8(a),
9.8(b), 9.8(c) and 9.10 of the Credit Agreement are incorporated herein by reference,
mutatis mutandis.
[Remainder of page intentionally left blank]
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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.
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PROLOGIS, L.P. (formerly known as AMB
Property, L.P.), as Borrower |
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By: |
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/s/ Phillip D. Joseph, Jr. |
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Name: |
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Phillip D. Joseph, Jr. |
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Title: |
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Senior Vice President and Treasurer |
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PROLOGIS, INC. (formerly known as AMB
Property Corporation), as General Partner and
Guarantor |
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By: |
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/s/ Phillip D. Joseph, Jr. |
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Name: |
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Phillip D. Joseph, Jr. |
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Title: |
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Senior Vice President and Treasurer |
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Signature page to Amendment to Euro Credit Agreement
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HSBC BANK USA, N.A., as Administrative Agent and
as a Bank |
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By: |
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/s/ Jason A. Huck |
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Name: |
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Jason A. Huck |
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Title: |
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VP Global Relationship Manager |
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HSBC BANK plc, as a Bank |
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By: |
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/s/ Ian Goldsworthy |
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Name: |
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Ian Goldsworthy |
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Title: |
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Managing Director, Head of UK Real Estate |
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Signature page to Amendment to Euro Credit Agreement
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SUMITOMO MITSUI BANKING CORPORATION, as a Bank |
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By: |
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/s/ William G. Karl |
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Name: |
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William G. Karl |
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Title: |
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General Manager |
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Signature page to Amendment to Euro Credit Agreement
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CREDIT AGRICOLE CORPORATE AND
INVESTMENT BANK, as Syndication Agent, Joint
Lead Arranger and Bookrunner, and as a Bank |
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By: |
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/s/ Daniel J. Reddy |
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Name: |
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Daniel J. Reddy |
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Title: |
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Director |
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By: |
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/s/ Jason Chrein |
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Name: |
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Jason Chrein |
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Title: |
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Director |
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Signature page to Amendment to Euro Credit Agreement
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MORGAN STANLEY SENIOR FUNDING, INC. as
Documentation Agent |
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By: |
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/s/ Nick Zangari |
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Name: |
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Nick Zangari |
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Title: |
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Vice President |
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MORGAN STANLEY BANK, N.A., as a Bank |
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By: |
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/s/ Nick Zangari |
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Name: |
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Nick Zangari |
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Title: |
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Authorized Signatory |
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Signature page to Amendment to Euro Credit Agreement
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SOCIETE GENERALE, as a Bank |
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By: |
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/s/ Gregoire Simon-Barboux |
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Name: |
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Gregoire Simon-Barboux |
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Title: |
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Deputy Global Head – Real Estate & Lodging
SG Corporate & Investment Banking |
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Signature page to Amendment to Euro Credit Agreement
SCHEDULE 9.5
GLOBAL SENIOR CREDIT AGREEMENT SECTION REFERENCE LEGEND
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Corresponding Section of Global Senior Credit |
| Section of Credit Agreement prior to |
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Agreement incorporated by reference into |
| effectiveness of First Amendment and |
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Credit Agreement as provided in First |
| Waiver |
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Amendment and Waiver |
Affirmative and Negative Covenants
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Section 5.1
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Section 10.1, Section 10.2, Section 10.3 |
Section 5.2
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Section 10.4 |
Section 5.3
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Section 10.6, Section 10.7 |
Section 5.4
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Section 10.5 |
Section 5.5
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Section 10.8 |
Section 5.6
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Section 10.9, Section 10.10 |
Section 5.7
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Section 10.5 |
Section 5.8
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Section 11.8, Section 11.3, Section 11.4, Section 11.1 |
Section 5.9
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Section 11.2 |
Section 5.10
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Section 11.4 |
Section 5.11
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Section 10.12 |
Section 5.12
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Section 5.13
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Section 5.14
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Section 11.5 |
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Section 11.6 |
Events of Default |
Section 6.1(b)
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Section 12.1.2 |
Section 6.1(e)
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Section 12.1.5 |
Section 6.1(f)
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Section 12.1.6, Section 12.1.7 |
Section 6.1(g)
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Section 12.1.6, Section 12.1.7 |
Section 6.1(h)
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Section 6.1(i)
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Section 12.1.8 |
Section 6.1(j)
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Section 12.1.11 |
Section 6.1(k)
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Section 12.1.11 |
Section 6.1(l)
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Section 6.1(m)
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Section 12.1.9 |
Section 6.1(n)
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Section 12.1.9 |
Signature page to Amendment to Euro Credit Agreement