(f/k/a BCI IV OPERATING PARTNERSHIP LP) ., as a Joint Lead Arranger for the Revolving Credit Facility, THIRD AMENDED AND RESTATED CREDIT AGREEMENTdated as ofMarch 31, 2022amongAIREIT Operating Partnership LP (f/k/a BCI IV...
Exhibit 10.1
THIRD AMENDED AND RESTATED CREDIT AGREEMENT dated as of March 31, 2022 among AIREIT Operating Partnership LP (f/k/a BCI IV OPERATING PARTNERSHIP LP) The Lenders Party Hereto and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent, BANK OF AMERICA, N.A., as Syndication Agent, ___________________________ WELLS FARGO SECURITIES, LLC, as a Joint Lead Arranger and Joint Bookrunner for the Revolving Credit Facility and the Term Facility, BOFA SECURITIES, INC., as a Joint Lead Arranger and Joint Bookrunner for the Revolving Credit Facility and the Term Facility, U.S. BANK NATIONAL ASSOCIATION, as a Joint Lead Arranger for the Revolving Credit Facility, CAPITAL ONE, NATIONAL ASSOCIATION, as a Joint Lead Arranger for the Revolving Credit Facility, Truist Securities, Inc., as a Joint Lead Arranger for the Revolving Credit Facility, REGIONS CAPITAL MARKETS, as a Joint Lead Arranger for the Term Facility and PNC BANK, NATIONAL ASSOCIATION, as a Joint Lead Arranger for the Term Facility |
TABLE OF CONTENTS
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SCHEDULES:
Schedule 1.01(g) Existing Liens
Schedule 2.01A Commitments
Schedule 2.01B Letter of Credit Commitments
Schedule 2.06 Existing Letters of Credit
Schedule 3.06 Disclosed Matters
Schedule 3.13 Unencumbered Properties
Schedule 6.01 Restrictions and Conditions
Schedule 6.07Agreements with Affiliates
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THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIRD AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”), dated as of March 31, 2022, among AIREIT Operating Partnership LP (f/k/a BCI IV OPERATING PARTNERSHIP LP), a Delaware limited partnership, the LENDERS party hereto, and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent, BANK OF AMERICA, N.A., as Syndication Agent, XXXXX FARGO SECURITIES, LLC, as a Joint Lead Arranger and Joint Bookrunner for the Revolving Credit Facility and the Term Facility, BOFA SECURITIES, INC., as a Joint Lead Arranger and Joint Bookrunner for the Revolving Credit Facility and the Term Facility, Capital One, National Association, U.S. Bank National Association, and Truist Securities, Inc., as Joint Lead Arrangers for the Revolving Credit Facility, and Regions Bank and PNC Bank, National Association, as Joint Lead Arrangers for the Term Facility.
RECITALS
WHEREAS, the Lenders previously made available to the Borrower (i) a $430,000,000 revolving credit facility, with a $25,000,000 swingline subfacility and a $25,000,000 letter of credit subfacility, and (ii) a $415,000,000 senior delayed-draw term loan facility (clauses (i) and (ii), collectively, the “Existing Facilities”), in each case pursuant to the Second Amended and Restated Credit Agreement, dated as of November 19, 2019, by and among the Borrower, the financial institutions party thereto as “Lenders,” Xxxxx Fargo, as Administrative Agent, and the other agent parties thereto, if any (as heretofore amended, modified or supplemented from time to time, collectively, the “Existing Agreement”).
WHEREAS, the parties hereto desire to amend and restate the Existing Agreement to provide, among other things, that the Lenders will make available to the Borrower (a) a $1,000,000,000 revolving credit facility, with a letter of credit subfacility as described herein, and (b) a new $550,000,000 senior term loan facility, in each case, pursuant to the terms and conditions of this Agreement.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereto agree as follows:
“ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bear interest at a rate determined by reference to the Base Rate.
“Adjusted EBITDA” means, Consolidated EBITDA minus, with respect to Properties owned by the Consolidated Group, the Capital Expenditure Reserve, and minus, with respect to Properties owned by Unconsolidated Affiliates, the Consolidated Group Pro Rata Share of the Capital Expenditure Reserve.
“Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment; provided that if Adjusted Term SOFR as so determined shall ever be less than the Floor, then Adjusted Term SOFR shall be deemed to be the Floor.
“Administrative Agent” means Xxxxx Fargo Bank, National Association, in its capacity as administrative agent for the Lenders hereunder.
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.
“Advisor” means Ares Commercial Real Estate Management LLC, a Delaware limited liability company.
“Advisory Agreement” means that certain Advisory Agreement (2022), dated as of February 11, 2022, by and among the Borrower, the Trust, and the Advisor, as the same may be amended, revised, supplemented or otherwise modified in accordance with the terms hereof.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
“Agency Site” means the Electronic System established by the Administrative Agent to administer this Agreement.
“Agent Party” has the meaning assigned to such term in Section 9.01(d).
“Agreement” has the meaning assigned to such term in the preamble hereto.
“Announcements” shall have the meaning assigned to such term in Section 1.06.
“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Trust, the Borrower or any of its Subsidiaries from time to time concerning or relating to bribery or corruption.
“Applicable Facility Fee” means the percentage set forth in the table below (expressed as basis points per annum) corresponding to the Category at which the Applicable Rate – Rating is then determined. Any change in the applicable Category at which the Applicable Rate – Rating is determined shall result in a corresponding and simultaneous change in the Applicable Facility Fee.
Category | Rating | Applicable Facility Fee |
1 | A-/A3 or higher | 12.5 |
2 | BBB+/Baa1 | 15.0 |
3 | BBB/Baa2 | 20.0 |
4 | BBB-/Baa3 | 25.0 |
5 | Lower than BBB-/ Baa3 | 30.0 |
“Applicable Percentage” means, (a) in respect of the Term Facility, with respect to any Term Lender (i) at any time prior to the Initial Term Loan Commitment Expiration Date, the percentage (carried out to the ninth decimal place) of the Term Facility represented by such Term Lender’s principal amount of Term Loans and unused Term Commitment, and (ii) on and after the Initial Term Loan Commitment Expiration Date, the percentage (carried out to the ninth decimal place) of the Term Facility represented by the principal amount of such Term Lender’s Term Loans at such time. If any Term Commitments have terminated or expired, the Applicable Percentages for the Term Facility shall be determined based upon the
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Term Commitments most recently in effect, giving effect to any assignments, terminations or expirations, and to any Term Lender’s status as a Defaulting Lender at the time of determination; and (b) in respect of the Revolving Credit Facility, with respect to any Revolving Lender at any time, the percentage (carried out to the ninth decimal place) of the Revolving Credit Facility represented by such Revolving Lender’s Revolving Commitment, provided that in the case of Section 2.20 when a Defaulting Lender shall exist, “Applicable Percentage” means the percentage of the total Revolving Commitments (disregarding any Defaulting Lender’s Revolving Commitment) represented by such Revolving Lender’s Revolving Commitment. If any Revolving Commitments have terminated or expired, the Applicable Percentages for the Revolving Credit Facility shall be determined based upon the Revolving Commitments most recently in effect, giving effect to any assignments, terminations or expirations, and to any Revolving Lender’s status as a Defaulting Lender at the time of determination. All references to Applicable Percentage in reference to Letters of Credit shall refer to a Lender’s Applicable Percentage in respect of the Revolving Credit Facility.
“Applicable Rate” means the Applicable Rate – Ratio, and following Borrower’s written election to Administrative Agent to the effect that the Applicable Rate shall be the rate set forth in the definition of Applicable Rate – Rating, which election shall be irrevocable once made, the Applicable Rate-Rating (such election, the “Election of Applicable Rate – Rating”).
“Applicable Rate – Rating” means the percentage rate set forth in the table below corresponding to the category (each, a “Category”) into which the Borrower’s Debt Rating then falls. Any election by Borrower for the Applicable Rate – Rating to apply and any change in the Borrower’s Debt Rating which would cause it to move to a different Category shall be effective as of the first day of the first calendar month immediately following receipt by the Administrative Agent of an Election of Applicable Rate – Rating (such date, the “Applicable Rate – Rating Effectiveness Date”) or written notice delivered by the Borrower in accordance with Section 5.01(h) that the Borrower’s Debt Rating has changed, as applicable; provided, however, if the Borrower has not delivered the notice required by such Section, but the Administrative Agent becomes aware that the Borrower’s Debt Rating has changed, then the Administrative Agent may, in its sole discretion, adjust the Category effective as of the first day of the first calendar month following the date the Administrative Agent becomes aware that the Borrower’s Debt Rating has changed. Following receipt by the Administrative Agent of the Election of Applicable Rate – Rating, the Borrower shall use commercially reasonable efforts to have two (2) Debt Ratings at all times, at least one of which shall be from S&P or Xxxxx’x. During any period that the Borrower has received only two (2) Debt Ratings, at least one of which shall be from S&P or Xxxxx’x, that are equivalent, the Applicable Rate – Rating shall be determined based on the Category corresponding to such Debt Ratings. In the event that (x) the Borrower receives only two (2) Debt Ratings, at least one of which shall be from S&P or Xxxxx’x, and such Debt Ratings are not equivalent, or (y) the Borrower receives more than two (2) Debt Ratings, and such Debt Ratings received are not all equivalent, then, in each case, the Applicable Rate – Rating shall be (a) if the difference between the highest and the lowest such Debt Ratings is one ratings category (e.g. Baa2 by Xxxxx'x and BBB- by S&P or Fitch), the Applicable Rate shall be the rate per annum that would be applicable if the highest of the Debt Ratings were used; and (b) if the difference between the highest and the lowest such Debt Ratings is two ratings categories (e.g. Baal by Xxxxx'x and BBB- by S&P or Fitch) or more, the Applicable Rate – Rating shall be the rate per annum that would be applicable if the average of the two (2) highest Debt Ratings were used; provided that if such average is not a recognized rating category (i.e., the difference between the Debt Ratings is an even number of ratings categories), then the Applicable Rate shall be based on the lower of the two (2) highest Debt Ratings. Following receipt by the Administrative Agent of an Election of Applicable Rate – Rating, during any period for which the Borrower has received a Debt Rating from only one Rating Agency, then the Applicable Rate – Rating shall be determined based on such Debt Rating so long as such Debt Rating is from either S&P or Xxxxx’x. During any period that the Borrower (A) has not received a Debt Rating or (B) has not received a Debt Rating from S&P and has not received a Debt Rating from Xxxxx’x, the Applicable Rate - Rating shall be determined based on Category 5.
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CATEGORY | Rating | SOFR Revolving loan Applicable Margin | ABR Revolving Loan Applicable Margin | SOFR Term loan Applicable Margin | ABR Term Loan Applicable Margin |
1 | A-/A3 or higher | 72.5 | 0.0 | 80.0 | 0.0 |
2 | BBB+/Baa1 | 77.5 | 0.0 | 85.0 | 0.0 |
3 | BBB/Baa2 | 85.0 | 0.0 | 95.0 | 0.0 |
4 | BBB-/Baa3 | 105.0 | 5.0 | 120.0 | 20.0 |
5 | Lower than BBB-/ Baa3 | 140.0 | 40.0 | 160.0 | 60.0 |
“Applicable Rate – Ratio” means the following basis points per annum, based upon the Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 5.01(d):
CATEGORY | LEVERAGE RATIO | SOFR Revolving loan Applicable Margin | ABR Revolving Loan Applicable Margin | SOFR Term loan Applicable Margin | ABR Term Loan Applicable Margin |
1 | < 40% | 125.0 | 25.0 | 120.0 | 20.0 |
2 | >40% and <45% | 135.0 | 35.0 | 125.0 | 25.0 |
3 | >45% and <50% | 145.0 | 45.0 | 135.0 | 35.0 |
4 | >50% and <55% | 160.0 | 60.0 | 150.0 | 50.0 |
5 | >55% and <60% | 180.0 | 80.0 | 170.0 | 70.0 |
6 | >60% | 200.0 | 100.0 | 190.0 | 90.0 |
Any increase or decrease in the Applicable Rate – Ratio resulting from a change in the Consolidated Leverage Ratio shall become effective as of the first Business Day immediately following the date the certificate is delivered pursuant to Section 5.01(d) (a “Compliance Certificate”); provided, however, that if a Compliance Certificate is not delivered when due in accordance with such Section, then, upon the request of the Required Lenders, the then-highest Category shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and shall remain in effect until the first Business Day after the date on which such Compliance Certificate is delivered. The
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Applicable Rate in effect from the Effective Date through the date of the next change in the Applicable Rate – Ratio pursuant to the preceding sentence shall be determined based upon Category 1.
“Applicable Rate – Rating Effectiveness Date” has the meaning assigned to such term in the definition of Applicable Rate – Rating.
“Approved Fund” has the meaning assigned to such term in Section 9.04(b).
“Asset Under Development” means any Property (a) for which the Consolidated Group is actively pursuing construction, major renovation, or expansion of such Property or (b) for which no construction has commenced but all necessary entitlements (excluding foundation, building and similar permits) have been obtained in order to allow the Consolidated Group to commence constructing improvements on such Property. Notwithstanding the foregoing, tenant improvements in a previously constructed Property shall not be considered an Asset Under Development and with respect to any existing Property only the major renovation or expansion portion of such Property shall be considered an Asset Under Development.
“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.04), and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by the Administrative Agent.
“Availability Period” means (a) with respect to the Revolving Credit Facility, the period from and including the Effective Date to but excluding the earlier of the Revolving Credit Facility Maturity Date and the date of termination of the Revolving Commitments, and (b) with respect to the Term Facility, the period from and including the Effective Date to and including the Initial Term Loan Commitment Expiration Date.
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (a) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement or (b) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 2.14(c)(iv).
“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, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom 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).
“Bankruptcy Event” means, with respect to any Person, such Person becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest,
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or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof, unless such ownership interest results in or provides such Person 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 Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.
“Base Rate” means, at any time, the highest of (a) the Prime Rate, (b) the Federal Funds Effective Rate plus 0.50% and (c) Adjusted Term SOFR for a one-month tenor in effect on such day plus 1.0%; each change in the Base Rate shall take effect simultaneously with the corresponding change or changes in the Prime Rate, the Federal Funds Effective Rate or Adjusted Term SOFR, as applicable (provided that clause (c) shall not be applicable during any period in which Adjusted Term SOFR is unavailable or unascertainable). Notwithstanding the foregoing, in no event shall the Base Rate be less than zero.
“Benchmark” means, initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.14(c)(i).
“Benchmark Replacement” means, with respect to any Benchmark Transition Event, the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities and (b) the related Benchmark Replacement Adjustment; provided that, if such Benchmark Replacement as so determined would be less than the Floor, such Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Available Tenor, 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 and the Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities.
“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:
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For the avoidance of doubt, 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).
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Start Date” means, in the case of a Benchmark Transition Event, the earlier of (a) the applicable Benchmark Replacement Date and (b) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication).
“Benchmark Unavailability Period” means the period (if any) (x) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.14(c)(i) and (y) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.14(c)(i).
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“Beneficial Ownership Certification” means a certification regarding 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 and subject to Section 4975 of the 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 Code) the assets of any such “employee benefit plan” or “plan”.
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Borrower” means AIREIT Operating Partnership LP (f/k/a BCI IV OPERATING PARTNERSHIP LP), a Delaware limited partnership .
“Borrowing” means Revolving Loans or Term Loans of the same Type, made, converted or continued on the same date and, in the case of SOFR Loans, as to which a single Interest Period is in effect.
“Borrowing Base Covenants” means the covenants in Section 6.12.
“Borrowing Request” means a request by the Borrower in the form attached hereto as Exhibit H for a Revolving Loan or Term Loan to be delivered to Administrative Agent in accordance with Section 2.03.
“Business Day” means any day that (a) is not a Saturday, Sunday or other day on which the Federal Reserve Bank of New York is closed and (b) is not a day on which commercial banks in New York City are closed.
“Capital Expenditure Reserve” means $0.10 per square foot of leasable space (as annualized for the applicable ownership period).
“Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
“Cash Equivalents” means, as of any date:
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“Category” has the meaning assigned to such term in the definition of Applicable Rate – Rating.
“Change in Control” means (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the date hereof, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) of Equity Interests representing thirty percent (30%) or more of the of the voting stock of Trust; (b) occupation at any time of a majority of the seats (other than vacant seats) on the board of directors or trustees of the Trust (the “Board”) by Persons who were not (i) members of the Board on the date of this Agreement or (ii) nominated or appointed by the Board; (c) Trust consolidates with, is acquired by, or merges into or with any Person (other than a consolidation or merger in which the Trust is the continuing or surviving entity); or (d) Trust fails to own, directly or indirectly, at least fifty-one percent (51%) of the Equity Interests of Borrower and be the sole general partner of Borrower (except for a merger of the Borrower into the Trust as permitted by Section 6.03(a)).
“Change in Law” means the occurrence after the date of this Agreement (or, with respect to any Lender, such later date on which such Lender becomes a party to this Agreement) of (a) the adoption of or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the interpretation or application thereof by any Governmental Authority, or (c) compliance by any Lender
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or the Issuing Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender or by such Lender’s or the Issuing Bank’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement; provided that, notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
“Class” means, when used in reference to any Loan, Commitment or Borrowing, whether such Loan or Commitment, or the Loans comprising such Borrowing, are Revolving Loans, Term Loans, Revolving Commitments or Term Commitments.
“Code” means the Internal Revenue Code of 1986, as amended.
“Commitment” means a Term Commitment or a Revolving Commitment, as the context may require.
“Communications” has the meaning assigned to such term in Section 9.01(c).
“Compliance Certificate” means a certificate substantially in the form of Exhibit G.
“Conforming Changes” means, with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of 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 “U.S. Government Securities Business Day,” the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept 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 Section 2.15 and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent reasonably decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent reasonably determines that no market practice for the administration of any such rate 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).
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consolidated Debt Service” means, for any period, without duplication, (a) Recurring Interest Expense for such period plus (b) the aggregate amount of scheduled principal payments attributable to Total Indebtedness (excluding optional prepayments and prepayment premiums and scheduled balloon principal payments in respect of any such Indebtedness which is not amortized through periodic installments of principal and interest over the term of such Indebtedness) required to be made during such period by any member of the Consolidated Group plus (c) a percentage of all such scheduled principal payments required to be made during such period by any Unconsolidated Affiliate on Indebtedness (excluding optional prepayments and prepayment premiums and scheduled balloon principal payments with respect to any such indebtedness which is not amortized through periodic installments of principal and interest over the term of such Indebtedness) taken into account in calculating Recurring Interest Expense, equal to the greater of
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(x) the percentage of the principal amount of such Indebtedness for which any member of the Consolidated Group is liable and (y) the Consolidated Group Pro Rata Share of such Unconsolidated Affiliate.
“Consolidated EBITDA” means, for any period, Consolidated Net Income for such period plus (a) adjustments for straight line rent, which adjustment may be included or excluded at Borrower’s discretion, plus (b) to the extent deducted from revenues in determining Consolidated Net Income, (i) Recurring Interest Expense, (ii) expense for taxes paid or accrued, (iii) depreciation, (iv) amortization, (v) impairment charges, (vi) amounts deducted as a result of the application of FAS 141 as it pertains to above-market rents, (vii) non-cash expenses related to employee and trustee stock and stock option plans, (viii) non-recurring financing, acquisition and disposition related fees and costs, (ix) extraordinary losses incurred other than in the ordinary course of business, (x) Performance Fee expense, provided that any addback of such expense pursuant to this clause (x) will only be permitted if Borrower, the Trust and the Advisor have executed a subordination agreement substantially in the form of Exhibit E attached hereto or otherwise on terms reasonably acceptable to the Administrative Agent (and such subordination agreement is in effect at the time of such addback) and the Performance Fee associated with such addback is not paid in contravention of the terms thereof (it being acknowledged and agreed that a subordination agreement is not required to be executed or in effect unless Borrower desires to add back Performance Fee expense as provided in this clause (x)), and (xi) in Borrower’s reasonable discretion, other non-cash charges for such period, minus (c) to the extent added to revenues in determining Consolidated Net Income, (i) amounts added as a result of the application of FAS 141 as it pertains to below-market rents and (ii) extraordinary gains realized other than in the ordinary course of business, in each case for or during such period. For the avoidance of doubt, Consolidated EBITDA shall not include gains and losses from asset sales. In addition, Consolidated EBITDA shall be adjusted to include amounts deferred for any given period pursuant to any expense support agreement in effect from time to time among the Advisor (or an Affiliate thereof), the Borrower and the Trust so long as such Expense Support Agreement is a Similar Agreement/Amendment (the “Expense Support Agreement”), including any extensions of the term of such agreement or any similar amendments to such agreement or any similar replacement or successor agreements, and shall be adjusted to exclude the non-cash accrual or subsequent cash reimbursement required in connection therewith, provided that payment of such deferred amount is subordinated to payment of the Obligations so that such payment is not permitted if an Event of Default exists. For purposes of this definition, (A) a new Expense Support Agreement will be deemed to be a “Similar Agreement/Amendment” if it is on substantially the same terms and conditions as the Prior Expense Support Agreement, including without limitation a limitation on term, similar pre-conditions to the payment of deferred amounts, an outside date after which reimbursement obligations are cancelled, and similar limitations on the right to accelerate the payment of such accrued amounts, and must be subordinated to the Obligations pursuant to a subordination agreement substantially the same as the one delivered for the Prior Expense Support Agreement, (B) an amendment to an existing Expense Support Agreement or a replacement or successor Expense Support Agreement will be deemed to be a Similar Agreement/Amendment if it is on substantially the same terms and conditions as the Expense Support Agreement, including without limitation a limitation on term, similar pre-conditions to the payment of deferred amounts, an outside date after which reimbursement obligations are cancelled, and similar limitations on the right to accelerate the payment of such accrued amounts, and such successor or replacement agreement or amendment must be subordinated to the Obligations pursuant to a subordination agreement substantially the same as the one delivered for the Expense Support Agreement, and (C) the term “Prior Expense Support Agreement” means that certain Second Amended and Restated Expense Support Agreement, dated as of January 1, 2019, among BCI IV Advisors LLC, the Borrower and the Trust.
“Consolidated Fixed Charge Coverage Ratio” means the ratio of Adjusted EBITDA to Fixed Charges.
“Consolidated Group” means the Trust, the Borrower and all Subsidiaries which are required to be consolidated with them for financial reporting purposes under GAAP.
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“Consolidated Group Pro Rata Share” means (i) with respect to any Unconsolidated Affiliate, the pro rata share of the ownership interests held by the Consolidated Group, in the aggregate, in such Unconsolidated Affiliate, without duplication, and (ii) with respect to any Exchange Fee Titleholder, the pro rata share of the ownership interests in such Exchange Fee Titleholder pledged to the Consolidated Group, in the aggregate, without duplication, which, for purposes of this clause (ii), will be one hundred percent (100%) if all of the ownership interests in such Exchange Fee Titleholder are pledged to the Consolidated Group, in the aggregate, without duplication.
“Consolidated Leverage Ratio” means, at any time (i) the sum of (a) Total Indebtedness minus Specified Excess Cash, plus (b) the Master Lease Obligations, divided by (ii) Total Asset Value minus Specified Excess Cash, expressed as a percentage.
“Consolidated Net Income” means, for any period, the sum, without duplication, of (i) net earnings (or loss) after taxes of the Consolidated Group (adjusted by eliminating any such earnings or loss attributable to Unconsolidated Affiliates) plus (ii) the applicable Consolidated Group Pro Rata Share of net earnings (or loss) of all Unconsolidated Affiliates for such period, in each case determined in accordance with GAAP (provided, however, that lease payments attributable to Sale-Leaseback Master Leases which are generally excluded from “consolidated net income” in accordance with GAAP shall nonetheless be included as earnings for purposes of this definition). For the avoidance of doubt, Consolidated Net Income for the Consolidated Group or Unconsolidated Affiliates shall not include unrealized gains or losses on real estate investments or other changes in fair value.
“Consolidated Tangible Net Worth” means, at any time, total assets (excluding accumulated depreciation and intangible assets) minus total liabilities, calculated in accordance with GAAP. However, for the purpose of this calculation, intangible assets resulting from the application of FAS141 shall not be excluded from Consolidated Tangible Net Worth.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
“Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Covered Party” has the meaning assigned to such term in Section 9.21.
“Credit Party” means the Administrative Agent, the Issuing Bank, or any other Lender.
“Current Appraisal” has the meaning assigned to such term in the definition of Property Value.
“Debt Instrument” means any instrument evidencing a debt, including mortgage notes and mezzanine notes, but excluding Exchange Debt Investments.
“Debt Rating” means, as of any date of determination, the non-credit enhanced, senior unsecured long-term debt rating assigned by any of S&P, Xxxxx’x and/or Fitch to the Borrower or Trust or the debt thereof.
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“Default” means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.
“Defaulting Lender” means any Lender that (a) has failed, within two (2) Business Days of the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any portion of its participations in Letters of Credit or (iii) pay over to any Credit Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) has notified the Borrower or any Credit Party in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within three (3) Business Days after request by a Credit Party, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective Loans and participations in then outstanding Letters of Credit under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon such Credit Party’s receipt of such certification in form and substance satisfactory to it and the Administrative Agent, (d) has become the subject of a Bankruptcy Event and/or (e) has become the subject of a Bail-in Action.
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“Delaware Divided LLC” means any Delaware LLC which has been formed upon the consummation of a Delaware LLC Division.
“Delaware Divided LP” means a Delaware limited partnership which has been formed upon the consummation of a Delaware LP Division.
“Delaware LLC Division” means the statutory division of any Delaware LLC into two or more Delaware LLCs pursuant to Section 18-217 of the Delaware Limited Liability Company Act, as amended from time to time.
“Delaware LP Division” means the statutory division of any Delaware limited partnership into two or more limited partnerships pursuant to Section 17-220 of the Delaware Limited Partnership Act, as amended from time to time.
“Disbursement Instruction Agreement” means an agreement substantially in the form of Exhibit B, as the same may be amended, restated or modified from time to time as reasonably agreed between the Administrative Agent and the Borrower.
“Disclosed Matters” means the actions, suits and proceedings and the environmental matters disclosed in Schedule 3.06.
“dollars” or “$” means lawful money of the United States of America.
“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
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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 date on which this Agreement is executed and delivered by all of the parties hereto and upon which each of the conditions in Section 4.01 is satisfied (or waived in accordance with Section 9.02).
“Election of Applicable Rate – Rating” has the meaning assigned to such term in the definition of Applicable Rate.
“Electronic Record” has the meaning assigned to that term in, and shall be interpreted in accordance with, 15 U.S.C. 7006.
“Electronic Signature” has the meaning assigned to that term in, and shall be interpreted in accordance with, 15 U.S.C. 7006.
“Electronic System” means any electronic system, including e-mail, e-fax, Intralinks®, ClearPar®, Debt Domain, Syndtrak and any other Internet or extranet-based site, whether such electronic system is owned, operated or hosted by the Administrative Agent and the Issuing Bank and any of its respective Related Persons or any other Person, providing for access to data protected by passcodes or other security system.
“Eligible Cash 1031 Proceeds” means the cash proceeds held by a “qualified intermediary” from the sale of a Property by Borrower or a Subsidiary, which cash proceeds are intended to be used by the qualified intermediary to acquire one or more “replacement properties” that are of “like-kind” to such Property in an exchange that qualifies as a tax-deferred exchange under Section 1031 of the Code and the Treasury Regulations promulgated thereunder (the “Regulations”), and no portion of which cash proceeds the Borrower or any Subsidiary has the right to receive, pledge, borrow or otherwise obtain the benefits of until the earlier of (i) such time as provided under Regulation Section 1.1031(k)-1(g)(6) and the applicable “exchange agreement” or (ii) such exchange is terminated in accordance with the “exchange agreement” and the Regulations. Upon the cash proceeds no longer being held by the qualified intermediary pursuant to the Regulations or otherwise qualifying under the Regulations for like-kind exchange treatment, such proceeds shall cease being Eligible Cash 1031 Proceeds. Terms in quotations in this definition shall have the meanings ascribed to such terms in the Regulations.
“Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the management, release or threatened release of any Hazardous Material or to health and safety matters.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower or any Loan Party directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials,
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(c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equity Interests” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any such equity interest.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.
“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30 day notice period is waived); (b) the existence with respect to any Plan of an “accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the Borrower (including as a result of an affiliation with an ERISA Affiliate) of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the Borrower (including as a result of an affiliation with an ERISA Affiliate) of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any notice concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent, within the meaning of Title IV of ERISA.
“Erroneous Payment” has the meaning assigned thereto in Section 8.06(a).
“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.
“Event of Default” has the meaning assigned to such term in Article VII.
“Exchange Beneficial Interest” means a beneficial interest in a Delaware statutory trust that owns Exchange Property.
“Exchange Debt Investments” means purchase money financing provided to an Exchange Property Investor in connection with the Exchange Program, secured by the Exchange Beneficial Interests of the Exchange Property Investor.
“Exchange Depositor” means each Subsidiary that is the depositor under a Delaware statutory trust that is part of the Exchange Program.
“Exchange Fee Titleholder” means the entity which is the owner of a Property pursuant to an exchange that qualifies, qualified, or is intended to qualify, as a reverse exchange under Section 1031 of
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the Code, which Property is master leased to a Subsidiary of Borrower during the period before the exchange is either completed or fails.
“Exchange Program” means the program whereby Affiliates of Borrower will cause (a)(i) the formation of a Delaware statutory trust which will receive contributions of Properties from the Borrower or an Affiliate of the Borrower or acquire Properties from third parties, in each case which Properties will become Exchange Properties upon addition to the Exchange Program, and (ii) the sale of beneficial ownership interests in such Delaware statutory trust to Exchange Property Investors, and in each case will master lease such Properties to an Affiliate of Borrower (which master leases may be guaranteed by Borrower or the Trust).
“Exchange Property” means a Property owned directly or indirectly by a Delaware statutory trust in connection with the Exchange Program, provided that any such Property shall constitute an Exchange Property only so long as it is master leased to an Affiliate of Borrower which master lease may be guaranteed by Borrower and/or the Trust.
“Exchange Property Investor” means any owner of an Exchange Beneficial Interest.
“Exchange Property Master Lease” means a master lease pursuant to which an Exchange Property is master leased to an Affiliate of Borrower.
“Exchange Property Owner” means the Delaware statutory trust owning directly or indirectly an Exchange Property.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. Federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan, Letter of Credit or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan , Letter of Credit or Commitment (other than pursuant to an assignment request by the Borrower under Section 2.19(b)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.17, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender acquired the applicable interest in a Loan, Letter of Credit or Commitment or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.17(f) and (g), and (d) any U.S. Federal withholding Taxes imposed under FATCA.
“Existing Agreement” has the meaning assigned to such term in the recitals.
“Existing Facilities” has the meaning assigned to such term in the recitals.
“Existing Letters of Credit” means each of the letters of credit originally issued under the Existing Agreement identified in Schedule 2.06.
“Expense Support Agreement” has the meaning assigned to such term in the definition of Consolidated EBITDA.
“FCA” shall have the meaning assigned to such term in Section 1.06.
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“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreement entered into pursuant to Section 1471(b)(1) of the Code.
“Federal Funds Effective 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, as published for such day (or, if such day is not a Business Day, for the immediately preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal Funds brokers of recognized standing reasonably selected by the Administrative Agent. If the Federal Fund Effective Rate determined as provided above would be less than zero, the Federal Fund Effective Rate shall be deemed to be zero.
“Fee Letters” means, collectively, (i) that certain fee letter dated as of March 23, 2022, by and among the Borrower, the Administrative Agent, and Xxxxx Fargo Securities, LLC, as amended, restated or replaced from time to time, (ii) that certain fee letter dated as of March 23, 2022, by and among the Borrower, Bank of America, N.A., and BofA Securities, Inc., as amended, restated or replaced from time to time, and (iii) each other fee letter entered into from time to time by the Borrower and one or more Joint Lead Arrangers in connection herewith.
“Financeable Ground Lease” means, except as otherwise approved by the Required Lenders a ground lease that provides reasonable and customary protections for a potential leasehold mortgagee (“Mortgagee”) which include, among other things (a) a remaining term, including any optional extension terms exercisable unilaterally by the tenant, of no less than twenty-five (25) years from the Effective Date, provided that the remaining term can be less than twenty-five (25) years if there is an option to purchase on terms acceptable to the Administrative Agent and the amount of the option purchase price is deducted from the Unencumbered Property Value of the applicable Unencumbered Property, (b) that the ground lease will not be terminated until the Mortgagee has received notice of a default, has had a reasonable opportunity to cure or complete foreclosure, and has failed to do so, (c) provision for a new lease on the same terms to the Mortgagee as tenant if the ground lease is terminated for any reason or other protective provisions reasonably acceptable to Administrative Agent, (d) non-merger of the fee and leasehold estates, (e) transferability of the tenant’s interest under the ground lease without any requirement for consent of the ground lessor unless based on reasonable objective criteria as to the creditworthiness or line of business of the transferee or delivery of customary assignment and assumption agreements from the transferor and transferee, and (f) that insurance proceeds and condemnation awards (from leasehold interest) will be applied pursuant to the terms of the applicable leasehold mortgage. For purposes of this Agreement, the terms “own” and “owned” in relation to any Property shall be deemed to include the ownership of the leasehold estate in such Property pursuant to a Financeable Ground Lease.
“Financial Officer” means any of the following Persons: (a) Co-President; Chief Financial Officer; the Managing Director, Debt Capital Markets; the Principal, Debt Capital Markets; or the Principal, Portfolio Management, in each case, of the Trust and (b) such other Persons proposed by the Trust and reasonably approved by Administrative Agent in writing.
“Financial Statements” has the meaning assigned to such term in Section 5.01.
“Fitch” means Fitch Ratings Inc.
“Fixed Charges” means, for any period, the sum of (i) Consolidated Debt Service and (ii) all dividends actually paid on account of preferred stock or preferred operating partnership units of the
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Borrower or any other Person in the Consolidated Group (including dividends actually paid to Unconsolidated Affiliates but excluding dividends paid to members of the Consolidated Group).
“Floor” means a rate of interest equal to 0.0%.
“FMV Option” means, for each Exchange Property, the option, but not the obligation, of the Borrower to, directly or indirectly, purchase such Exchange Property or the Exchange Beneficial Interests relating to such Exchange Property at fair market value at any time (i) beginning on the first to occur of (A) the last day of the 24th month following the final closing of the sale of Exchange Beneficial Interests, and (B) the last day of the 48th month following the date the Exchange Property Owner enters into the Exchange Property Master Lease (such earlier date is the “FMV Option Start Date”) and (ii) expiring on the last day of the 12th month following the FMV Option Start Date. The consideration for any such purchase shall be the issuance of units in the Borrower.
“Foreign Assets Control Regulations” has the meaning assigned to such term in Section 3.13.
“Foreign Lender” means (a) if the Borrower is a U.S. Person, a Lender, with respect to such Borrower, that is not a U.S. Person and (b) if the Borrower is not a U.S. Person, a Lender, with respect to such Borrower, that is resident or organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.
“FRB” means the Board of Governors of the Federal Reserve System of the United States.
“Fronting Exposure” means, at any time there is a Defaulting Lender that is a Revolving Lender, such Defaulting Lender’s Applicable Percentage of the outstanding LC Exposure, other than LC Exposure as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Lenders or cash collateralized in accordance with the terms hereof.
“GAAP” means generally accepted accounting principles in the United States of America, that are applicable as of the date of determination.
“Governmental Authority” means the government of the United States of America, any other nation or 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.
“Guarantee” of or by any Person (the “guarantor”) means, without duplication, any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided, that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business. The amount of any Guarantee shall be deemed to be the maximum stated amount of the primary obligation relating to such Guarantee (or, if less, the maximum stated liability set forth in the instrument embodying such Guarantee), provided, that in the absence of any such stated amount or stated liability the amount of such Guarantee
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shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith.
“Guarantors” means, collectively, the Trust, all Subsidiary Guarantors and all Investor Guarantors.
“Guaranty” means collectively the Guaranty from the Trust and the Subsidiary Guaranty from the Subsidiary Guarantors made in favor of the Administrative Agent and the Lenders, substantially in the forms of Exhibits D-1 and D-2, and any Investor Guaranty, as the same may be amended, supplemented, reaffirmed or otherwise modified from time to time.
“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
“IBA” shall have the meaning assigned to such term in Section 1.06.
“Indebtedness” of any Person means, without duplication, (a) all obligations of such Person for borrowed money or with respect to deposits or advances of any kind, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person upon which interest charges are customarily paid, (d) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (e) all obligations of such Person in respect of the deferred purchase price of property or services (excluding current accounts payable incurred in the ordinary course of business), (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person of Indebtedness of others (excluding in any calculation of consolidated Indebtedness of the Consolidated Group, Guarantee obligations of one member of the Consolidated Group in respect of primary obligations of any other member of the Consolidated Group), (h) all Capital Lease Obligations of such Person, (i) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, other than any letter of credit or letter of guaranty to the extent secured by cash collateral, and (j) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances. The Indebtedness of any Person shall (i) include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor and (ii) exclude (x) deferrals or accruals by the Borrower or the Trust pursuant to the Expense Support Agreement including any extensions of the term of such agreement or any similar amendments to such agreement or any similar replacement or successor agreements (similarity being determined as set forth in the definition of Consolidated EBITDA), provided that payment of such amount is subordinated to payment of the Obligations so that payment is not permitted if an Event of Default exists, and (y) customary limited exceptions for certain acts or types of liability such as environmental liability, fraud and other customary non-recourse carve-outs. Indebtedness for purposes of determining compliance with Sections 6.11 and 6.12 shall not include any Indebtedness of any Loan Party to any other Loan Party or any of their Subsidiaries so long as such Indebtedness is not secured by any pledge of equity in any Subsidiary Guarantor and any such Indebtedness owing to a Subsidiary that is not a Loan Party is expressly subordinated in writing to the Obligations on terms reasonably acceptable to the Administrative Agent (which terms shall permit payments in the ordinary course of business prior to an Event of Default but shall prohibit such payments and all claims in respect thereof while an Event of Default exists). Notwithstanding the foregoing, Indebtedness shall not include (a) any liability under an Exchange Property Master Lease (including any guaranty thereof by the Trust or the Borrower) that would otherwise constitute indebtedness for the purposes of GAAP, or (b) any Indebtedness associated with or attributed to an Exchange Property, other
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than the Consolidated Group’s pro rata share (corresponding to the pro rata share of the Exchange Beneficial Interests in the Exchange Property Owner that are owned by the Consolidated Group) of such Indebtedness.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Ineligible Institution” has the meaning assigned to such term in Section 9.04(b).
“Initial Term Loan” means the term loan made, or to be made, to the Borrower by the Term Lenders pursuant to Section 2.01(b).
“Initial Term Loan Commitment” means, as to each Term Lender, its obligation to make Initial Term Loans to the Borrower pursuant to Section 2.01(b) in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Term Lender’s name on Schedule 2.01A under the caption “Initial Term Loan Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Term Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The initial aggregate amount of the Lenders’ Initial Term Loan Commitments is $550,000,000.00.
“Initial Term Loan Commitment Expiration Date” means the earliest of (a) the date upon which the aggregate Initial Term Loan Commitment is fully advanced pursuant to Section 2.01(b), (b) September 30, 2022, and (c) the date of termination of the Initial Term Loan Commitment in accordance with the terms hereof.
“Interest Election Request” means a request by the Borrower to convert or continue a Revolving Borrowing in accordance with Section 2.08.
“Interest Payment Date” means (a) with respect to any ABR Loan, the fifth (5th) day of each calendar month, and (b) with respect to any SOFR Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Borrowing of SOFR Loans with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period,.
“Interest Period” means, as to any SOFR Loan, the period commencing on the date such SOFR Loan is disbursed or converted to or continued as a SOFR Loan and ending on the date one (1), three (3) or six (6) months thereafter, in each case as selected by the Borrower in its Borrowing Request or request for conversion or continuation and subject to availability; provided that:
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“Investment Grade Rating” means a credit rating (or Debt Rating with respect to the Borrower or Trust or the debt thereof) of BBB-/Baa3 (or the equivalent) or higher from Fitch, Inc., Moody’s or S&P.
“Investor Guarantor” means any shareholders, members, partners or Affiliates of Borrower or the Trust that are a party to the Investor Guaranty.
“Investor Guaranty” means a guaranty which may be executed and delivered by one or more Investor Guarantors in accordance with Section 5.12, in a form approved by the Administrative Agent, which approval shall not be unreasonably withheld, delayed or conditioned, as the same may be amended, supplemented or otherwise modified from time to time.
“IRS” means the United States Internal Revenue Service.
“ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.
“ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).
“Issuing Bank” means individually or collectivley, as the context may suggest or require, Xxxxx Fargo Bank, National Association or Bank of America, N.A., in its capacity as the issuer of Letters of Credit hereunder, and its successors in such capacity as provided in Section 2.06(i). Any Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such Issuing Bank in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate. Each reference herein to the “Issuing Bank” shall be deemed to be a reference to the relevant Issuing Bank. When used individually in this Agreement with respect to any Letter of Credit, “Issuing Bank” shall mean and refer to the Issuing Bank requested to issue, issuing or that has issued such Letter of Credit.
“Joint Bookrunners” means Xxxxx Fargo Securities, LLC and BofA Securities, Inc., each in its capacity as a joint bookrunner for the Term Facility and the Revolving Credit Facility.
“Joint Lead Arrangers” means (i) Xxxxx Fargo Securities, LLC, BofA Securities, Inc., Regions Bank and PNC Bank, National Association, each in its capacity as a joint lead arranger for the Term Facility and (ii) Xxxxx Fargo Securities, LLC, BofA Securities, Inc., Capital One, National Association, U.S. Bank National Association, and Truist Securities, Inc., each in its capacity as a joint lead arranger for the Revolving Credit Facility.
“Land” means unimproved land on which no material improvements have been commenced.
“Laws” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, licenses, authorizations and permits of, and agreements with, any Governmental Authority.
“LC Disbursement” means a payment made by the Issuing Bank pursuant to a Letter of Credit.
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“LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any Lender at any time shall be its Applicable Percentage of the total LC Exposure at such time. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 2.06(k). For all purposes of this Agreement, if on any date of determination a 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, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
“Lender Parent” means, with respect to any Lender, any Person as to which such Lender is, directly or indirectly, a subsidiary.
“Lenders” means the Persons listed on Schedule 2.01A and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption. Unless the context otherwise requires, the term “Lenders” includes the Issuing Bank.
“Letter of Credit” means any letter of credit issued pursuant to this Agreement.
“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 each Issuing Bank, the commitment of such Issuing Bank to issue Letters of Credit hereunder. The initial amount of each Issuing Bank’s Letter of Credit Commitment is set forth on Schedule 2.01B, or if an Issuing Bank has entered into an Assignment and Assumption or became a party hereto pursuant to an agreement entered into in connection with any increase of Commitments pursuant to Section 2.22, the amount set forth for such Issuing Bank as its Letter of Credit Commitment in the Register maintained by the Administrative Agent. The total of all Letter of Credit Commitments shall not exceed the lesser of (i) twenty percent (20%) of the aggregate Revolving Commitments and (ii) $25,000,000.
“Letter of Credit Fees” has the meaning assigned to such term in Section 2.12(c).
“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, monetary encumbrance, charge or security interest in, on or of such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.
“Loan Documents” means this Agreement, including without limitation, schedules and exhibits thereto and any agreements entered into in connection herewith and designated as a Loan Document, including the Guaranty, each Note, each Fee Letter, and any subordination agreements entered into in connection herewith or required hereunder, and, in each case, amendments, modifications or supplements thereto or waivers thereof, other than any Swap Agreement.
“Loan Parties” means the Borrower and each Guarantor.
“Loans” means the loans made by the Lenders to the Borrower pursuant to this Agreement.
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“Master Lease Obligations” means, as of any date of determination, the sum of all remaining obligations of the Consolidated Group, determined on a consolidated basis, to pay rent under all Exchange Property Master Leases, which such obligations shall be determined with respect to each Exchange Property Master Lease (a) commencing on the date of the first sale of an Exchange Beneficial Interest in the applicable Exchange Property Owner to an Exchange Property Investor and (b) ending on (i) if the expiration of the FMV Option with respect to the Exchange Property that is the subject of such Exchange Property Master Lease is not yet known, the date that is five years after the date of the commencement of the applicable Exchange Property Master Lease with respect to such Exchange Property, or (ii) if the expiration of the FMV Option with respect to the Exchange Property that is the subject of such Exchange Property Master Lease is known, the date of the expiration of the applicable FMV Option with respect to such Exchange Property.
“Material Acquisition” mean an acquisition of assets with a total cost that is more than ten percent (10%) of the Total Asset Value based on the most recent Compliance Certificate submitted prior to such acquisition.
“Material Adverse Effect” means a material adverse effect on (a) the business property or financial condition of the Consolidated Group taken as a whole, (b) the ability of the Borrower or the Trust to perform any of its material obligations under the Loan Documents to which it is a party, (c) the ability of the Loan Parties collectively taken as a whole to perform their material obligations under the Loan Documents, or (d) the validity or enforceability of any of the material provisions of the Loan Documents and the material rights or material remedies available to the Administrative Agent and the Lenders under the Loan Documents.
“Material Indebtedness” means Indebtedness (other than the Loans and Letters of Credit), or obligations in respect of one or more Swap Agreements, of any one or more of the Borrower and its Subsidiaries in an aggregate principal amount exceeding $25,000,000 with respect to Recourse Indebtedness and $125,000,000 with respect to any Indebtedness which is not Recourse Indebtedness provided, however, that prior to the time that the Total Asset Value is at least $500,000,000, the foregoing amounts shall be $10,000,000 with respect to Recourse Indebtedness and $50,000,000 with respect to any Indebtedness which is not Recourse Indebtedness. For purposes of determining Material Indebtedness, the “principal amount” of the obligations of the Borrower or any Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Borrower or such Subsidiary would be required to pay if such Swap Agreement were terminated at such time.
“Material Transfer” has the meaning assigned to such term in Section 6.09.
“Maturity Date” means the Revolving Credit Facility Maturity Date and/or Term Facility Maturity Date, as the context may so suggest or require.
“Moody’s” means Xxxxx’x Investors Service, Inc.
“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
“Net Operating Income” means, with respect to any Property for any period, (i) revenues therefrom (other than revenues constituting accrued base rent to the extent that a tenant at such Property is in monetary default with respect to the payment of such base rent) (including, without limitation, expense reimbursement, loss of rent income and lease termination fees appropriately amortized to the extent there is no new tenant in the space for which the lease termination fee was paid), calculated, in each case, in accordance with GAAP, minus (ii) the costs of maintaining such Property, including, without limitation, real estate taxes, insurance, repairs, maintenance, actual property management fees paid to third parties or
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charged internally at a market rate and bad debt expense, but excluding depreciation, amortization, interest expense, tenant improvements, leasing commissions, and capital expenditures, calculated, in each case, in accordance with GAAP. For any Property owned for less than one (1) full quarter, Net Operating Income for such full quarter shall be determined based on performance during such partial quarter, or if such information is not reasonably available, shall be determined on a proforma basis in the Borrower’s reasonable discretion taking into account any performance information provided by the prior owner of such Property.
“Note” has the meaning assigned to such term in Section 2.10(e).
“Obligations” means (a) the principal of and interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (b) each payment required to be made under this Agreement in respect of any Letter of Credit, when and as due, including payments in respect of reimbursements of LC Disbursements and interest thereon and (c) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of the Borrower under this Agreement or any other Loan Document, other than contingent indemnity obligations for which no claim has been made.
“OFAC” means the Office of Foreign Assets Control of the U.S. Department of Treasury.
“Other Connection Taxes” means, with respect to any Recipient, 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 Loan, Letter of Credit or Loan Document).
“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.19).
“Participant” has the meaning assigned to such term in Section 9.04.
“Participant Register” has the meaning assigned to such term in Section 9.04(c).
“Parties” means the Borrower or any of its Affiliates.
“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
“Pension Funding Rules” means the rules of the Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Pension Plans and set forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter, Section 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.
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“Performance Fees” means the Performance Component of the Advisory Fee, as such terms are defined in the Advisory Agreement as in effect on the Effective Date or as amended in accordance with Section 6.08.
“Permitted Encumbrances” means:
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“Permitted Investments” means
“Permitted Tax Incentive Transaction” means any transaction or series of related transactions relating to an issuance of all Indebtedness and other obligations (collectively, “Tax Incentive Indebtedness”) arising in connection with the issuance of bonds, notes or other obligations by a Governmental Authority located in the United States (each, a “Tax Incentive Issuer”) to mitigate real estate and/or ad valorem Taxes otherwise payable in connection with the ownership of any Property (each, a “Tax Incentive Property”), the fee title to which is owned (or leased) by a Tax Incentive Issuer, and subsequently leased (or subleased) by a Subsidiary from the Tax Incentive Issuer, such transaction or series of transactions being governed by, among other documents, any indenture or other agreement governing or evidencing the Tax Incentive Indebtedness, entered into by and between a Tax Incentive Issuer and the trustee of the bonds in connection with the issuance of such Tax Incentive Indebtedness, if applicable (each, an “Tax Incentive Indenture”), any lease agreement entered into by and between a Subsidiary and an Tax Incentive Issuer (or any affiliate thereof) in connection with the issuance by such Tax Incentive Issuer of Tax Incentive Indebtedness (each, a “Tax Incentive Lease Agreement”), any guaranty or similar agreement entered into by any Subsidiary to guaranty, for the benefit of the bondholder (which, pursuant to clause (iii) below, shall be the applicable Subsidiary, or an affiliate thereof), certain payments due in connection with the issuance of Tax Incentive Indebtedness, including, without limitation, the payment of principal and interest due under the bonds, notes, or other obligations evidencing the Tax Incentive Indebtedness, and Tax Incentive Issuer or trustees fees and expenses, if any, due under the trust indenture (each, an “Tax Incentive Guaranty”), PILOT agreements, tax incentive agreements, and any other certificate, agreement,
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document or instrument, in each case, executed and delivered by any Subsidiary, Tax Incentive Issuer, or the trustee of any bonds in connection with such issuance of Tax Incentive Indebtedness and related tax incentives (collectively, “Tax Incentive Documents”) which satisfy the following criteria: (i) any net cash proceeds of the Tax Incentive Indebtedness under such Tax Incentive Documents are used for the purpose of acquiring, constructing, developing, expanding, installing and/or upgrading an Tax Incentive Property, (ii) such Tax Incentive Indebtedness is non-recourse to the Loan Parties (other than as expressly provided in the applicable Tax Incentive Guaranty, if any), and any successors and/or assigns of such Loan Parties in the event of a transfer or assignment of the applicable Tax Incentive Lease Agreement and all of the rights and obligations of such Subsidiary under each other Tax Incentive Document (including any Tax Incentive Guaranty) to an assignee who is a Person that is not a Subsidiary, (iii) the applicable Subsidiary (or any affiliate thereof) is the purchaser of the taxable bonds, or holder of the applicable notes or other obligations issued or to be issued in connection with such Tax Incentive Indebtedness (and, so long as such Tax Incentive Property is an Unencumbered Property, at all times such Subsidiary (or any affiliate thereof) shall remain the owner or holder thereof), (iv) the base payments due under the Tax Incentive Lease Agreement are equivalent to the debt service due under any bonds, notes or other obligations evidencing the Tax Incentive Indebtedness (other than the payment of a nominal sum as additional annual base rent during the term of the Tax Incentive Lease Agreement), (v) the applicable Tax Incentive Lease Agreement or another Tax Incentive Document grants to the applicable Subsidiary the option to re-acquire title to all or any portion of such Tax Incentive Property for a nominal sum at any time without further consent of the Tax Incentive Issuer or any other party other than the Subsidiary (of affiliate thereof) in its capacity as the bondholder or holder of the note or other obligation, either directly or through the trustee of the applicable bonds evidencing the Tax Incentive Indebtedness, (vi) no Tax Incentive Document entered into in connection with such Tax Incentive Indebtedness shall limit in any material respect the use by any Subsidiary of its property or assets (including the applicable Tax Incentive Property), except as may be required by applicable law to maintain the designation of the Tax Incentive Property as a “project” pursuant to the applicable legislation governing such tax incentive structures, (vii) no Tax Incentive Document entered into in connection with such Tax Incentive Indebtedness shall limit the ability of the Subsidiary to finance its interest in the Tax Incentive Property, including mortgaging the leasehold estate created under the Tax Incentive Lease Agreement, (viii) no Tax Incentive Document entered into in connection with such Tax Incentive Indebtedness shall limit the ability of the Subsidiary to transfer its interest in the Tax Incentive Property, except for any requirement for a consent from the Tax Incentive Issuer that is considered administrative and which can reasonably expected to be obtained in the ordinary course of business, and (ix) no Tax Incentive Document shall contain a “clawback” provision pursuant to which there could be an obligation by the Borrower or the applicable Subsidiary to repay a material portion of prior tax benefits received other than due to material breach by the Borrower or the applicable Subsidiary.
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Platform” means Debt Domain, Intralinks, Syndtrak or a substantially similar electronic transmission system.
“Prime Rate” means, at any time, the rate of interest per annum publicly announced from time to time by the Lender then acting as the Administrative Agent as its prime rate. Each change in the Prime Rate shall be effective as of the opening of business on the day such change in such prime rate occurs. The parties hereto acknowledge that the rate announced publicly by the Lender acting as Administrative Agent
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as its prime rate is an index or base rate and shall not necessarily be its lowest or best rate charged to its customers or other banks.
“Property” means any real estate owned by the Borrower, any Guarantor, any Subsidiary, any Unconsolidated Affiliate, any Exchange Fee Titleholder, or any Exchange Property Owner, and operated or intended to be operated as an investment property.
“Property Value” means, with respect to any Property owned (or (x) subject to the limitations on the value of ground leased properties that may be included in the Total Unencumbered Property Pool Value under Section 6.12(c)(vii) and (x), is ground leased pursuant to a Financeable Ground Lease, or (y) subject to the limitation on the value of leased properties that may be included in the Total Unencumbered Property Pool Value under Section 6.12(xi), is leased pursuant to a Tax Incentive Lease Agreement) directly or indirectly by the Borrower, any Guarantor, any Exchange Fee Titleholder or any Exchange Property Owner, as of any date of determination, , the most recent estimated “as is” fair market value for such Property, as determined by Altus Group or other third party valuation firm engaged by the Borrower or applicable member of the Consolidated Group, but only if, as of such date of determination, either (x) the Property was acquired, or (y) a full appraisal report has been performed by Altus Group or such other third party valuation firm, in either such case of (x) or (y), during the calendar year in which such date of determination occurs or during the immediately preceding calendar year (such full appraisal report, or cost basis solely if such a full appraisal report has not yet been performed a “Current Appraisal”). For the avoidance of doubt, the estimated “as is” fair market value may be updated periodically in between the “as of” dates of any Current Appraisal provided by Altus Group or such other third party valuation firm to reflect changes in market conditions and/or leasing activity since the date of the last Current Appraisal; provided, however, that if, as of any date of determination, the Borrower does not have a full appraisal report constituting a Current Appraisal for a certain Property and such Property was acquired prior to the beginning of the calendar year that ended immediately prior to the calendar year in which such date of determination occurs, then the Property Value of such Property as of such date of determination will be (i) 90% of the “as is” fair market value for such Property as set forth in the full appraisal report that most recently constituted a “Current Appraisal” (or, if no such full appraisal report has been performed, 75% of the cost basis for such Property) during the period beginning on January 1 of the calendar year in which such date of determination occurs and ending on March 31 of such calendar year, unless and until a new full appraisal report constituting a Current Appraisal is obtained, (ii) 75% of the “as is” fair market value for such Property as set forth in the full appraisal report that most recently constituted a “Current Appraisal” (or, if no such full appraisal report has been performed, 50% of the cost basis for such Property) during the period beginning on April 1 of the calendar year in which such date of determination occurs and ending on June 30 of such calendar year, unless and until a new full appraisal report constituting a Current Appraisal is obtained, or (iii) 60% of the “as is” fair market value for such Property as set forth in the full appraisal report that most recently constituted a “Current Appraisal” (or, if no such full appraisal report has been performed, 0% of the cost basis for such Property) during the period beginning on July 1 of the calendar year in which such date of determination occurs until a new full appraisal report constituting a Current Appraisal is obtained. A Property contributed to a joint venture by the Borrower or Guarantor shall be deemed to have been owned by such joint venture from the date of such contribution. A Property acquired from a joint venture in which the Borrower or any Subsidiary or Affiliate is a member shall be deemed to have been owned from the date acquired from such joint venture.
“Public-Sider” means any representative of a Lender that does not want to receive material non-public information within the meaning of the federal and state securities laws.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
“QFC Credit Support” has the meaning assigned to such term in Section 9.21.
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“Recipient” means (a) the Administrative Agent, (b) any Lender and (c) any Issuing Bank, as applicable.
“Recourse Indebtedness” means any Indebtedness of the Borrower or any other member of the Consolidated Group with respect to which the liability of the obligor is not limited to the obligor’s interest in specified assets securing such Indebtedness, subject to customary limited exceptions for certain acts or types of liability.
“Recurring Interest Expense” means, for any period without duplication, the sum of (a) the amount of interest (without duplication, whether accrued, paid or capitalized) on Total Indebtedness actually payable by members of the Consolidated Group during such period, plus (b) the applicable Consolidated Group Pro Rata Share of any interest (without duplication, whether accrued, paid or capitalized) on Indebtedness actually payable by Unconsolidated Affiliates during such period, whether recourse or non-recourse, but excluding non-recurring amortized financing related expenses.
“Register” has the meaning assigned to such term in Section 9.04.
“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective, directors, officers, employees, partners, agents and trustees of such Person and such Person’s Affiliates.
“Relevant Governmental Body” means the FRB or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the FRB or the Federal Reserve Bank of New York, or any successor thereto.
“Required Lenders” means, at any time, Lenders having Revolving Credit Exposures, unused Commitments, and outstanding Term Loans representing at least fifty-one percent (51%) of the sum of the total Revolving Credit Exposures, unused Commitments and outstanding Term Loans at such time; provided that, for the purpose of determining the Required Lenders needed for any waiver, amendment, modification or consent, (i) any Lender that is the Borrower, or any Affiliate of the Borrower shall be disregarded, (ii) in determining such percentage at any given time, all then existing Defaulting Lenders will be disregarded and excluded, and (iii) at all times when two (2) or more Lenders (excluding Defaulting Lenders) are party to this Agreement, the term “Required Lenders” shall in no event mean less than two (2) Lenders.
“Required Revolving Lenders” means, at any time, Lenders having Revolving Credit Exposures and unused Revolving Commitments representing at least fifty-one percent (51%) of the sum of the total Revolving Credit Exposures and unused Revolving Commitments at such time; provided that, for the purpose of determining the Required Revolving Lenders needed for any waiver, amendment, modification or consent, (i) any Lender that is the Borrower, or any Affiliate of the Borrower shall be disregarded, (ii) in determining such percentage at any given time, all then existing Defaulting Lenders will be disregarded and excluded, and (iii) at all times when two (2) or more Revolving Lenders (excluding Defaulting Lenders) are party to this Agreement, the term “Required Revolving Lenders” shall in no event mean less than two (2) Revolving Lenders.
“Required Term Lenders” means, at any time, Lenders having outstanding Term Loans and unused Term Commitments representing at least fifty-one percent (51%) of the sum of the total outstanding Term Loans and unused Term Commitments at such time; provided that for the purpose of determining the Required Term Lenders needed for any waiver, amendment, modification or consent, (i) any Lender that is the Borrower, or any Affiliate of the Borrower shall be disregarded, (ii) in determining such percentage at any given time, all then existing Defaulting Lenders will be disregarded and excluded, and (iii) at all times
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when two (2) or more Term Lenders (excluding Defaulting Lenders) are party to this Agreement, the term “Required Term Lenders” shall in no event mean less than two (2) Term Lenders.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Restricted Payment” means any cash dividend, cash distribution or other cash payment with respect to any equity interests in the Borrower or any Subsidiary, excluding (i) any dividend, distribution or other payment by a member of the Consolidated Group to another member of the Consolidated Group (including in connection with the issuance of equity interests), (ii) any redemption of equity interests by a member of the Consolidated Group (including pursuant to a share buyback program); (iii) any distribution or other payment by an Unconsolidated Affiliate to a member of the Consolidated Group (including promote payments in connection with development joint ventures and regular distributions of cash flow from Unconsolidated Affiliates); and (iv) any distribution or other payment by any Subsidiary or Unconsolidated Affiliate which is a partnership, limited liability company or joint venture or mezzanine lender and operated in the ordinary course of business.
“Revolving Commitment” means, with respect to each Lender, the commitment of such Lender to make Revolving Loans and to acquire participations in Letters of Credit hereunder, expressed as an amount representing the maximum aggregate permitted amount of such Lender’s Revolving Credit Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.09, (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04, or (c) increased pursuant to Section 2.22 or Section 9.02. The initial amount of each Lender’s Revolving Commitment is set forth on Schedule 2.01A, or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Revolving Commitment, as applicable. The initial aggregate amount of the Lenders’ Revolving Commitments is $1,000,000,000.00.
“Revolving Credit Exposure” means, with respect to any Revolving Lender at any time, the sum of the outstanding principal amount of such Lender’s Revolving Loans and its LC Exposure at such time.
“Revolving Credit Facility” means, at any time, the aggregate amount of the Revolving Lenders’ Revolving Commitments at such time.
“Revolving Credit Facility Maturity Date” means, with respect to the Revolving Credit Facility, March 31, 2025, subject to extension in accordance with Section 2.21.
“Revolving Lender” means any Lender that has a Revolving Commitment or holds Revolving Loans at such time.
“Revolving Loan” means a Loan made pursuant to Section 2.01(a).
“Sale-Leaseback Master Lease” means a master lease entered into by a buyer of a Property, as lessor, and the seller of such Property, as lessee, in connection with a transaction whereby such seller leases all or a portion of such Property after closing.
“S&P” means S&P Global Ratings, or any successor thereto.
“Sanctioned Country” means at any time, a country, region or territory which is itself, or whose government is, the subject of any Sanctions.
“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC, the U.S. Department of State, the United Nations Security
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Council, the European Union, Her Majesty’s Treasury of the United Kingdom, or other relevant sanctions authority, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons described in clauses (a) and (b).
“Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the U.S. government (including those administered by OFAC), the European Union, Her Majesty’s Treasury or other relevant sanctions authority of the United Kingdom, or the United Nations Security Council.
“SEC” means the Securities and Exchange Commission of the United States of America.
“Similar Agreement/Amendment” has the meaning assigned to such term in the definition of “Consolidated EBITDA”.
“SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“SOFR Borrowing” means any Borrowing bearing interest at a rate based on Adjusted Term SOFR.
“SOFR Loan” means any Loan bearing interest at a rate based on Adjusted Term SOFR.
“Specified Excess Cash” means, as of any date of determination, all Unrestricted Cash and Cash Equivalents as of such date held by the Consolidated Group in excess of $25,000,000, not to exceed the outstanding principal balance of the Revolving Loans on such date.
“subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity of which securities or other ownership interests representing more than fifty percent (50%) of the equity or more than fifty percent (50%) of the ordinary voting power or, in the case of a partnership, more than fifty percent (50%) of the general partnership interests are, as of such date, owned, controlled or held, by the parent or one or more subsidiaries of the parent provided that any joint venture in which any Loan Party is a majority owner but does not Control and which is not included in such Loan Party’s consolidated financial statements shall not be a subsidiary.
“Subsidiary” means any subsidiary of the Borrower.
“Subsidiary Guarantor” means each Subsidiary Owner, each Subsidiary that is master leasing an Unencumbered Property from an Exchange Fee Titleholder, each Exchange Depositor, and any other Subsidiary that elects to become a party to the Subsidiary Guaranty.
“Subsidiary Guaranty” means that certain Subsidiary Guaranty, dated as of February 28, 2018, executed by the Subsidiary Guarantors, in favor of the Administrative Agent for the benefit of the Lenders, as amended, supplemented, reaffirmed or otherwise modified from time to time.
“Subsidiary Owner” means the Subsidiary that is the owner of the applicable Unencumbered Property (or that is the lessee of the applicable Unencumbered Property pursuant to a Financeable Ground
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Lease, as applicable), and the Exchange Depositor under a Delaware statutory trust that owns any applicable Unencumbered Property and is part of the Exchange Program or, after the FMV Option has been exercised, an Affiliate of the Borrower that is also the owner of 100% of the Exchange Beneficial Interests.
“Supplemental Materials” means any business or financial-related disclosures or information supplementing the Financial Statements made available to the holders of the Parties’ securities issued pursuant to Rule 144A of the Securities Act.
“Supported QFC” has the meaning assigned to such term in Section 9.21.
“Swap Agreement” means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Borrower or the Subsidiaries shall be a Swap Agreement.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term Commitment” means any Initial Term Loan Commitment and, if applicable, any term commitment added pursuant to Section 2.22 or Section 9.02.
“Term Facility” means the Term Loans to be made by the Term Lenders pursuant to this Agreement.
“Term Facility Maturity Date” means, with respect to the Term Facility, March 31, 2027.
“Term Lender” means any Lender that from time to time holds outstanding Term Loans or Term Commitments.
“Term Loans” means the Initial Term Loans and, if applicable, any term loans added pursuant to Section 2.22 or Section 9.02.
“Term Note” means a promissory note made by the Borrower in favor of a Term Lender evidencing Term Loans made by such Term Lender, substantially in the form of Exhibit F-2.
“Term SOFR” means,
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“Term SOFR Adjustment” means, for any calculation with respect to a ABR Loan or a SOFR Loan, a percentage per annum as set forth below for the applicable type of such Loan and (if applicable) Interest Period therefor:
ABR Loans:
0.10% |
SOFR Loans:
Interest Period | Percentage |
One month | 0.10% |
Three months | 0.15% |
Six months | 0.25% |
“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 Reference Rate” means the forward-looking term rate based on SOFR.
“Total Asset Value” means, as of the date of calculation, the aggregate, without duplication, of: (i) the Property Value of all Properties owned by any member of the Consolidated Group or any Exchange Property Owner; plus (ii) the Consolidated Group Pro Rata Share of the Property Value of Properties owned by Unconsolidated Affiliates or any Exchange Fee Titleholder; plus (iii) Unrestricted Cash and Cash Equivalents owned directly or indirectly by any member of the Consolidated Group or any Exchange Property Owner; plus (iv) the applicable Consolidated Group Pro Rata Share of Unrestricted Cash and Cash Equivalents owned directly or indirectly by any Exchange Fee Titleholder or by Borrower or any Guarantor through an Unconsolidated Affiliate; plus (v) investments in Debt Instruments (based on current book value) of any member of the Consolidated Group and Exchange Debt Investments (based on current book value) of any member of the Consolidated Group; provided that no Exchange Debt Investment shall be included under this clause if it relates to an Exchange Property already included in the calculation of Total Asset Value; plus (vi) an amount equal to the Consolidated Group Pro Rata Share of investments in Debt Instruments (based on current book value) and Exchange Debt Investments (based on current book value) owned by Unconsolidated Affiliates, any Exchange Fee Titleholder or any Exchange Property Owner; plus (vii) proceeds due from transfer agent; plus (viii) the amount of all Eligible Cash 1031 Proceeds resulting from the sale of Properties. Further, if the FMV Option for any Exchange Property owned by an Exchange Property Owner has expired, then for purposes of calculations under clauses (i) and (iii) above with respect
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to such Exchange Property Owner, only the pro rata share of the Exchange Beneficial Interests owned by the Exchange Depositor in such Exchange Property Owner shall be counted; provided, however, that if the FMV Option is exercised, the pro rata share of the Exchange Beneficial Interests owned by a Subsidiary Owner shall be counted.
“Total Indebtedness” means, as of any date of determination, without duplication, the sum of: (a) all Indebtedness of the Consolidated Group outstanding at such date, determined on a consolidated basis; plus (b) the greater of (i) the applicable Consolidated Group Pro Rata Share of all Indebtedness of each Unconsolidated Affiliate (other than Indebtedness of such Unconsolidated Affiliate to a member of the Consolidated Group) and (ii) the amount of Indebtedness of such Unconsolidated Affiliate which is also Recourse Indebtedness of a member of the Consolidated Group.
“Total Revolving Credit Exposure” means, the sum of the outstanding principal amount of all Lenders’ Revolving Loans and their LC Exposure at such time.
“Total Secured Indebtedness” means, as of any date of determination, that portion of Total Indebtedness (excluding (i) the Obligations under the Loan Documents, (ii) obligations under Swap Agreements not secured by a Lien on a Property, (iii) contingent liabilities under customary completion guarantees, non-recourse carveout guarantees and hazardous materials indemnity agreements (except to the extent that a claim for payment or performance has been made thereunder and such obligations are secured by a Lien on a Property) and (iv) contingent obligations relating to performance or surety bonds in the ordinary course of business (except to the extent that a claim for payment or performance has been made thereunder and such obligations are secured by a Lien on a Property)) which is secured by a Lien on a Property, any ownership interests in any Subsidiary or Unconsolidated Affiliate or any other assets which had, in each case, in the aggregate, a value in excess of the amount of the applicable Indebtedness at the time such Indebtedness was incurred. Such Indebtedness that is secured only with a pledge of ownership interests and is also recourse to the Borrower or any Guarantor shall not be treated as Total Secured Indebtedness.
“Total Secured Recourse Indebtedness” means, as of any date of determination, that portion of Total Secured Indebtedness with respect to which the liability of the obligor is not limited to the obligor’s interest in specified assets securing such Indebtedness (subject to customary limited exceptions for certain acts or types of liability such as environmental liability, fraud and other customary non-recourse carve-outs); provided that Indebtedness of a single-purpose entity (or any holding company or other entity which owns such single-purpose entity) which is secured by substantially all of the assets of such single-purpose entity (or any holding company or other entity which owns such single-purpose entity) but for which there is no recourse to another Person beyond the single-purpose entity or holding company or other entity which owns such single-purpose entity (other than with respect to customary limited exceptions for certain acts or types of liability such as environmental liability, fraud and other customary non-recourse carve-outs) shall not be considered a part of Total Secured Recourse Indebtedness even if such Indebtedness is fully recourse to such single-purpose entity (or any holding company or other entity which owns such single-purpose entity) and unsecured guarantees provided by Borrower or the Trust of mortgage loans to Subsidiaries or Unconsolidated Affiliates shall not be included in Total Secured Recourse Indebtedness.
“Total Unencumbered Property Pool Value” means, as of any date of calculation, the aggregate, without duplication, of: (a) the Unencumbered Property Values of all Unencumbered Properties; plus (b) an amount equal to one hundred percent (100%) of the then current book value of each Exchange Debt Investment, provided that such Exchange Debt Investment is not subject to any Liens or encumbrances and so long as the Exchange Property Investor with respect to such Exchange Debt Investment is not delinquent thirty (30) days or more in any payment of interest or principal payments thereunder; plus (c) the amount in excess of $10,000,000 of the total of (i) all Unrestricted Cash and Cash Equivalents, plus (ii) the amount of Eligible Cash 1031 Proceeds resulting from the sale of Unencumbered Properties.
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“Total Unsecured Indebtedness” means, as of any date of determination, that portion of Total Indebtedness which does not constitute Total Secured Indebtedness; provided that for purposes of calculating Total Unsecured Indebtedness, the amount of the Consolidated Group Pro Rata Share of all Indebtedness of each Unconsolidated Affiliate (other than Indebtedness of such Unconsolidated Affiliate to a member of the Consolidated Group) shall be excluded for all purposes of this definition. For the avoidance of doubt, the Obligations under the Loan Documents shall be included in Total Unsecured Indebtedness (and contingent liabilities under customary completion guarantees, non-recourse carveout guarantees and hazardous materials indemnity agreements shall not be included in Total Unsecured Indebtedness (except to the extent that a claim for payment or performance has been made thereunder and such obligations do not constitute Total Secured Indebtedness)).
“Transactions” means the execution, delivery and performance by the Borrower of this Agreement, the borrowing of Loans, the use of the proceeds thereof and the issuance of Letters of Credit hereunder.
“Trust” means Ares Industrial Real Estate Income Trust Inc. (f/k/a Black Creek Industrial REIT IV Inc.), the general partner of Borrower.
“Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to Adjusted Term SOFR or the Base Rate.
“UCP” means, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce (“ICC”) Publication No. 600 (or such later version thereof as may be in effect at the time of issuance).
“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 Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Unconsolidated Affiliate” means, any Person in which the Consolidated Group, directly or indirectly, has any ownership interest of $1,000,000 or more (valued as of the most recent quarterly financial statement), whose financial results are not consolidated under GAAP with the financial results of the Consolidated Group.
“Unencumbered Property Pool Leverage Ratio” means, for any period, Total Unsecured Indebtedness to Total Unencumbered Property Pool Value.
“Unencumbered Interest Coverage Ratio” means, at any time, (a) Unencumbered Property NOI for the most recent quarter plus interest income from Exchange Debt Investments, annualized, divided by (b) Unsecured Interest Expense for the immediately preceding calendar quarter, annualized.
“Unencumbered Property” means, a Property (other than an Exchange Property, except as hereinafter provided) that is designated by the Borrower as an Unencumbered Property and: (i) is completed and located in the continental United States or, subject to the limitations on the value of Assets Under
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Development that may be included in the Total Unencumbered Property Pool Value under Section 6.12, is an Asset Under Development located in the continental United States; (ii) is one hundred percent (100%) owned in fee simple (or (x) subject to the limitations on the value of ground leased properties that may be included in the Total Unencumbered Property Pool Value under Section 6.12(c)(vii) and (x), is ground leased pursuant to a Financeable Ground Lease, or (y) subject to the limitation on the value of leased properties that may be included in the Total Unencumbered Property Pool Value under Section 6.12(c)(xi), is leased pursuant to a Tax Incentive Lease Agreement) by the Borrower, an Exchange Fee Titleholder or a Subsidiary Owner that is at least ninety-five percent (95%) owned directly or indirectly by Borrower, provided that no consent from any minority owner is required in order for the Borrower to cause a sale or refinancing of such Unencumbered Property, and so long as any such Subsidiary (whether or not wholly-owned) is a Guarantor (to the extent required pursuant to Section 5.11); (iii) is not subject to any Liens or encumbrances other than clauses (a), (b), (c), (d), (f), (j), (k) and (m) of the definition of Permitted Encumbrances or a Lien securing bonds, notes or other obligations issued pursuant to a Permitted Tax Incentive Transaction; (iv) is not subject to any agreement (including Borrower’s, or any applicable Subsidiary Owner’s organizational documents) which prohibits or limits the ability of the Borrower or any applicable Subsidiary Owner, as the case may be, to create, incur, assume or suffer to exist any Lien securing any monetary obligation upon any such Unencumbered Property (or the leasehold estate therein created by a Financeable Ground Lease or Tax Incentive Agreement, as applicable) or Equity Interests of such Subsidiary Owner that owns such Unencumbered Property, except for covenants that are not materially more restrictive than the covenants contained in this Agreement, in favor of holders of unsecured Indebtedness of the Borrower and such Subsidiary Owner not prohibited hereunder; (v) is not subject to any agreement (including (a) any agreement governing Indebtedness incurred in order to finance or refinance the acquisition of such Property, and (b) if applicable, the Borrower’s or Subsidiary Owner’s organizational documents) which entitles any Person to the benefit of any Lien on such Property (other than the Lien securing repayment of bonds, notes or other obligations issued pursuant to, or fees and expenses of the Tax Incentive Issuer or trustee in connection with, a Permitted Tax Incentive Transaction), or the Equity Interests in the Borrower or such Subsidiary Owner or Exchange Fee Titleholder that in each case owns such Unencumbered Property or would entitle any Person to the benefit of any Lien on such Property or Equity Interests upon the occurrence of any contingency (including, without limitation, pursuant to an “equal and ratable” clause) other than any agreement entered into in connection with the financing of such Property and the pledge of such Property as security for any financing pending the closing of such financing, provided that such Property shall cease to be an Unencumbered Property upon the closing of such financing; (vi) is not subject to any agreement (including (a) any agreement governing Indebtedness incurred in order to finance or refinance the acquisition of such Property, and (b) if applicable, the Borrower’s or Subsidiary Owner’s organizational documents) which prohibits or limits the ability of the Borrower or such Subsidiary Owner or Exchange Fee Titleholder, as the case may be, to make pro rata Restricted Payments to Borrower, or any applicable Subsidiary Owner of income arising out of such Property or prevents such Subsidiary Owner from transferring such Property (other than (x) any restriction with respect to a Property imposed pursuant to an agreement entered into for the sale or disposition of such Property pending the closing of such sale or disposition or in connection with a 1031 exchange or any restriction in connection with a Permitted Tax Incentive Transaction that complies with the condition set forth in clause (viii) of the criteria for such transactions, (y) any restriction with respect to a Subsidiary Owner that owns such Property imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Equity Interests or assets of such Subsidiary Guarantor pending the closing of such sale or disposition, and (z) restrictions which are not materially more restrictive than the restrictions contained herein, in favor of holders of unsecured Indebtedness of the Borrower not prohibited hereunder or which terminate at the time that such property ceases to be an Unencumbered Property in connection with any other facility); and (vii) is not the subject of any material issues which would impact the operation of such Property. No Property owned by a Subsidiary Owner shall be deemed to be an Unencumbered Property unless (a) both such Property and all Equity Interests of the Subsidiary Owner held directly or indirectly by the Borrower are not subject to any Lien, except as otherwise expressly permitted herein, including, without limitation, in connection with a Permitted Tax Incentive Transaction, (b) each intervening entity between the Borrower
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and such Subsidiary Owner does not have any Indebtedness for borrowed money or, if such entity has any Indebtedness, such Indebtedness is unsecured, and (c) neither such Subsidiary Owner nor any intervening entity between the entity immediately below the Borrower and such Subsidiary Owner is subject to insolvency proceedings, unable to pay debts or subject to any writ or warrant of attachment. A Property that is subject to an option to purchase shall not be disqualified by the requirement in clause (vi) from being an Unencumbered Property so long as the Property can be transferred subject to the rights of the optionee provided that if the option to purchase is for a fixed price as distinguished from a market price, the Unencumbered Property Value for such Property shall be equal to the lesser of (x) the amount determined in accordance with the definition of Unencumbered Property Value, or (y) the option price for such Property. Notwithstanding the foregoing, Exchange Properties that are part of the Exchange Program may be included as Unencumbered Properties (1) during the period of time that the Exchange Beneficial Interests are being marketed, such marketing period not to exceed 24 months, and (2) if the FMV Option is exercised with respect to such Exchange Beneficial Interests, at all times after such exercise of the FMV Option, if all of the requirements set forth in this definition for an Unencumbered Property are met other than (A) the ownership percentage requirement (including without limitation the requirement set forth in clause (ii) of this definition), (B) the requirement that they not be Exchange Properties, (C) any requirement that the owner of such Property become a Subsidiary Guarantor (so long as the applicable Exchange Depositor (or, after the exercise of the FMV Option with respect to such Exchange Beneficial Interests, the Subsidiary Owner with respect thereto) is a Subsidiary Guarantor), (D) any requirement that the Unencumbered Property not be subject to any agreement which prohibits or limits the ability of the Borrower or any applicable Subsidiary Owner, as the case may be, to create, incur, assume or suffer to exist any Lien upon any Unencumbered Property; provided that (for the avoidance of doubt), with respect to Exchange Properties, the Equity Interests of the Subsidiary Owner shall not be subject to any agreement that prohibits or limits the ability of the Borrower or such Subsidiary Owner, as the case may be, to create, incur, assume or suffer to exist any Lien on such Equity Interests, or (E) any requirement set forth in clauses (a), (b) or (c) immediately above, except that for purposes of calculating unencumbered pool financial covenants, only the pro rata share of value and income (corresponding to the pro rata share of the Exchange Beneficial Interests in the Exchange Property Owner that are owned by the Consolidated Group) shall be counted. Nothing herein shall prohibit an Unencumbered Property hereunder from constituting an Unencumbered Property in connection with any other indebtedness, provided that such indebtedness is not prohibited pursuant to the terms of this Agreement.
“Unencumbered Property NOI” means, with respect to any Unencumbered Property for any period, the Net Operating Income for such Unencumbered Property for such period, less the Capital Expenditure Reserve. For purposes of calculating Unencumbered Property NOI for any Exchange Property that constitutes an Unencumbered Property, only the pro rata share of Unencumbered Property NOI (corresponding to the pro rata share of the Exchange Beneficial Interests in the Exchange Property Owner that are still owned by the Consolidated Group) shall be counted. For purposes of calculating Unencumbered Property NOI for any other Unencumbered Property that is owned by a Subsidiary Owner that is not wholly owned directly or indirectly by the Borrower, only the pro rata share of Unencumbered Property NOI (corresponding to the pro rata share of such Subsidiary Owner that is owned by the Borrower) shall be counted.
“Unencumbered Property Value” shall mean for an Unencumbered Property, as of any date of determination, the Property Value of such Unencumbered Property. For purposes of calculating Unencumbered Property Value for any Exchange Property that constitutes an Unencumbered Property, only the pro rata share of Unencumbered Property Value (corresponding to the pro rata share of the Exchange Beneficial Interests in the Exchange Property Owner that are owned by the Consolidated Group) shall be counted. For purposes of calculating Unencumbered Property Value for any Property owned by an Exchange Fee Titleholder that constitutes an Unencumbered Property, only the Consolidated Group Pro Rata Share of Unencumbered Property Value of such Property shall be counted. For purposes of calculating Unencumbered Property Value for any other Unencumbered Property that is owned by a Subsidiary Owner
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that is not wholly owned directly or indirectly by the Borrower, only the pro rata share of Unencumbered Property Value (corresponding to the pro rata share of such Subsidiary Owner that is owned by the Borrower) shall be counted. A Property contributed to a joint venture by the Borrower or any Subsidiary shall be deemed to have been owned by such joint venture from the date of such contribution and any Property acquired by the Borrower or any Subsidiary from an affiliated joint venture shall be deemed to have been acquired by the Borrower or any Subsidiary on the date of such acquisition from such joint venture.
“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as in effect in the State of Delaware or any other applicable jurisdiction.
“Unrestricted Cash and Cash Equivalents” means, in the aggregate, all cash and Cash Equivalents which are not pledged for the benefit of any party (whether a creditor, seller or otherwise) having a claim (whether liquidated or not) against a member of the Consolidated Group, to be valued for purposes of this Agreement at one hundred percent (100%) of its then-current book value, as determined under GAAP.
“Unsecured Interest Expense” means for any period, the amount of interest (without duplication, whether accrued, paid or capitalized), on Total Unsecured Indebtedness, but excluding amortized financial related expenses.
“Unused Fee Rate” means an annualized percentage equal to two-tenths of one percent (0.20%) if the Total Revolving Credit Exposure during the applicable day is less than or equal to fifty percent (50%) of the aggregate amount of Lenders’ Revolving Commitments and otherwise shall be equal to fifteen-hundredths of one percent (0.15%).
“U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) 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. Person” means a “United States person” within the meaning of Section 7701(a)(30) of the Code.
“U.S. Special Resolution Regime” has the meaning assigned to such term in Section 9.21.
“U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section 2.17(f)(ii)(B)(3).
“Xxxxx Fargo” means Xxxxx Fargo Bank, National Association, and its successors and assigns.
“Wholly-Owned Subsidiary” means, as to the Trust, any Subsidiary of the Trust that is directly or indirectly owned at least ninety percent (90%) by the Trust; provided that if such Subsidiary is not one hundred percent (100%) owned by the Trust, no consent of any minority owner is required for the Trust to cause a pledge, sale or refinancing of such Subsidiary that has not been obtained.
“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined 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
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described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution 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 Bail-In Legislation that are related to or ancillary to any of those powers.
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(i) the aggregate amount of the requested Borrowing, and if such Borrowing is requested during the Availability Period for the Term Facility, whether such Borrowing is of Revolving Loans or Initial Term Loans;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a SOFR Borrowing;
(iv) in the case of a SOFR Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period”; and
(v) the location and number of the Borrower’s account to which funds are to be disbursed, which shall comply with the requirements of Section 2.07.
If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested SOFR Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.
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(i) the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);
(ii)the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;
(iii)whether the resulting Borrowing is to be an ABR Borrowing or a SOFR Borrowing; and
(iv)if the resulting Borrowing is a SOFR Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period”.
If any such Interest Election Request requests a SOFR Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.
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(i) impose, modify or deem applicable any reserve (including pursuant to regulations issued from time to time by the FRB for determining the maximum reserve requirement (including any emergency, special, supplemental or other marginal reserve requirement) with respect to eurocurrency funding (currently referred to as “Eurocurrency liabilities” in Regulation D of the FRB, as amended and in effect from time to time)), special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or advances, loans or other credit extended or participated in by, any Lender or the Issuing Bank;
(ii) impose on any Lender or the Issuing Bank any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation therein; or
(iii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;
and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, continuing, converting or maintaining any Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to such Lender, the Issuing Bank or such other Recipient of participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise), then, upon the request of such Lender, Issuing Bank or Recipient, the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered (provided that the determination of such additional amounts shall be made in good faith and consistent with similarly situated customers of the applicable Lender or the Issuing Bank under agreements having provisions similar to this Section 2.15 after consideration of such factors as such Lender or the Issuing Bank then reasonably determines to be relevant), and provided further, that for the avoidance of doubt, that this Section 2.15 shall not apply with respect to any Taxes for which a Loan Party has an indemnification obligation under Section 2.17.
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(i)Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation
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prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.17(f)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii)Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Person,
(A)any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), properly completed and executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. Federal backup withholding tax;
(B)any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent two copies (or such other number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:
(1)in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, properly completed and executed originals of IRS Form W-8BEN or W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, properly completed and executed originals of IRS Form W-8BEN or W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(2)properly completed and executed originals of IRS Form W-8ECI;
(3)in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit C-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of IRS Form W-8BEN or W-8BEN-E, as applicable; or
(4)to the extent a Foreign Lender is not the beneficial owner, properly completed and executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, as applicable, a U.S. Tax Compliance Certificate substantially in the form of Exhibit C-2 or Exhibit C-3,
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IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit C-4 on behalf of each such direct and indirect partner;
(C)any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. Federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D)if a payment made to a Lender under any Loan Document would be subject to U.S. Federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
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The Borrower represents and warrants to the Lenders that:
(b)Since the date of the most recent audited Financial Statements delivered by Borrower, there has been no event or circumstance, that has had a Material Adverse Effect.
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Unencumbered Property is subject to any Liens, other than Permitted Encumbrances that are allowed by the definition of Unencumbered Property.
(b) Each of the Trust, Borrower and any Subsidiary owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property material to its business, and the use thereof by the Borrower and its Subsidiaries does not infringe upon the rights of any other Person, except for any such failure to own or license or such infringements that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.
(b)Except for the Disclosed Matters and except with respect to any matter or events described in (i) through (iii) below that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, neither the Trust, Borrower nor any of their Subsidiaries (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) has become subject to any Environmental Liability, or (iii) has received notice of any claim with respect to any Environmental Liability.
(c)Since the date of this Agreement, there has been no change in the status of the Disclosed Matters that, individually or in the aggregate, has resulted in a Material Adverse Effect.
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(ii)No use of proceeds of any Borrowing or any Letter of Credit have been used by any Loan Party, to the knowledge of any Loan Party, (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (ii) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, including any payments (directly or indirectly) to a Sanctioned Person or a Sanctioned Country or (iii) directly, or to the knowledge of any Loan Party, indirectly, in any manner that will result in any violation of any Anti-Corruption Law or applicable Sanctions.
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identified from time to time as an Unencumbered Property, Borrower hereby represents and warrants as follows except to the extent disclosed in writing to the Lenders and approved by the Required Lenders (which approval shall not be unreasonably withheld):
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A breach of any of the representations and warranties contained in this Section 3.13 with respect to a Property shall disqualify such Property from being an Unencumbered Property for so long as such breach continues (unless otherwise approved by the Required Lenders) but shall not constitute a Default or an Event of Default (unless the elimination of such Property as an Unencumbered Property results in a Default or Event of Default under one of the other provisions of this Agreement).
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The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at or prior to 3:00 p.m., Minneapolis time, on March 31, 2022 (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time).
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Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in paragraphs (a) and (b) of this Section.
Until the Commitments have expired or been terminated and the principal of and interest on each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit shall have expired or terminated, in each case, without any pending draw, and all LC Disbursements shall have been reimbursed, the Borrower covenants and agrees with the Lenders that:
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Documents required to be delivered pursuant to Section 5.01(a) or (b) or Section 5.01(g) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address provided to Administrative Agent; or (ii) on which such documents are publicly filed or are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its request to the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
Subject to Section 9.12, the Borrower further agrees to clearly label the financial statements described in clauses (a) and (b) (collectively, “Financial Statements”) with a notice stating: “Confidential Financial Statements to be Provided to All Lenders, Including Public-Xxxxxx” before delivering them to the Administrative Agent, but only if such Financial Statements are not publicly filed.
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Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer or other executive officer of the Borrower setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.
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Subsidiary, then Borrower and/or such Subsidiary, as applicable, shall be named as a loss payee and additional insured under each such policy).
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A Subsidiary shall be automatically released from its obligations under the Subsidiary Guaranty if (i) there is no Event of Default (or event which, upon expiration of an applicable cure period, will become an Event of Default), and (ii) Borrower delivers an updated Compliance Certificate to Administrative Agent demonstrating compliance (based on information as of the end of the prior quarter) with all financial covenants contained in Section 6.12(a), (b) and (c) of this Agreement without such Subsidiary being included as a Subsidiary Guarantor and without any Property owned by such Subsidiary (or Exchange Fee Titleholder if the Subsidiary Guarantor is the master lessee) being included as an Unencumbered Property in the calculation of Borrower’s compliance with any of the foregoing covenants pertaining to Unencumbered Properties, and representing and warranting that based on the information as of the end of the prior quarter, but without counting any Unencumbered Property owned by the Subsidiary Guarantor being released (or owned by the Exchange Fee Titleholder if the Subsidiary Guarantor being released is the master lessee) as an Unencumbered Property, Borrower will continue to comply with all of the financial covenants in this Agreement upon release of such Subsidiary Guarantor. A Subsidiary that became a party to the Subsidiary Guaranty because it was master leasing a Property owned by an Exchange Fee Titleholder shall be released upon delivery of a joinder to the Subsidiary Guaranty by the Exchange Fee Titleholder
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once it becomes a Subsidiary of the Borrower, or an election by Borrower to cause such Property to cease to be an Unencumbered Property in accordance with the terms of this Agreement. A Subsidiary that became a party to the Subsidiary Guaranty because it was an Exchange Depositor shall be released in accordance with Section 6.12 upon the earlier of the end of the marketing period described therein or 24 months, at which point such Property shall cease to be an Unencumbered Property or an election by Borrower to cause such Property to cease to be an Unencumbered Property in accordance with the terms of this Agreement. In addition, each Subsidiary Guarantor may be released at the request of the Borrower (and the Property owned by it may continue to be an Unencumbered Property) once the Borrower or the Trust receives Investment Grade Ratings from two of S&P, Xxxxx’x or Fitch, provided that such Subsidiary Guarantor and each intervening entity between the Borrower and such Subsidiary Guarantor is also released from any other unsecured debt or guaranties of Indebtedness other than trade payables and other obligations incurred in the ordinary course of business, provided that the Property owned by it may no longer be considered an Unencumbered Property if such Subsidiary or any intervening entity between the Borrower and such Subsidiary subsequently incurs unsecured debt or enters into a guaranty of Indebtedness of another Person (unless such Subsidiary executes a new Subsidiary Guaranty). In addition, at such time as the Borrower or the Trust receives Investment Grade Ratings from two of S&P, Xxxxx’x or Fitch, the Subsidiary owning an Unencumbered Property shall not be required to be a Subsidiary Guarantor in order for such Property to qualify as an Unencumbered Property so long as none of the Subsidiary owning such Unencumbered Property or any intervening entity between the Borrower and such Subsidiary has any other outstanding unsecured debt (other than trade payables and other obligations incurred in the ordinary course of business) or guarantees of Indebtedness. Subject to the foregoing, the Administrative Agent shall, from time to time, upon request from the Borrower, execute and deliver to the Borrower a written acknowledgement that a Subsidiary has been released from its obligations under the Subsidiary Guaranty and the Lenders and the Issuing Bank hereby authorize the Administrative Agent to deliver such acknowledgement.
Until the Commitments have expired or terminated and the principal of and interest on each Loan and all fees payable hereunder have been paid in full and all Letters of Credit have expired or terminated, in each case, without any pending draw, and all LC Disbursements shall have been reimbursed, the Borrower covenants and agrees with the Lenders that:
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Documents, current trade payables, unsecured Indebtedness in the ordinary course of business that is not for borrowed money and completion and similar bonds in the ordinary course of business), and (ii) negative pledge clauses or similar covenants or restrictions or agreements which would entitle an entity to the benefit of any lien upon the occurrence of any contingency (including, without limitation, pursuant to an “equal and ratable” clause) on any Unencumbered Property (other than Permitted Encumbrances provided that Permitted Encumbrances under clauses (h) and (l) of the definition thereof must be in favor of a Loan Party); provided, however, that (a) the foregoing restrictions in (i) and (ii) shall not apply to any term loan or private placement facility or bond offering (or any guaranty of any of the foregoing), in each case, that is unsecured and pari passu to the Loans (or the Guarantees, as applicable), and (b) clause (ii) shall not apply to (1) restrictions and conditions imposed by law or by this Agreement, (2) restrictions and conditions existing on the date hereof identified on Schedule 6.01 (but shall apply to any extension or renewal of, or any amendment or modification expanding the scope of, any such restriction or condition), (3) customary restrictions and conditions contained in agreements relating to the sale of an asset or a Subsidiary pending such sale, provided such restrictions and conditions apply only to the asset or Subsidiary that is to be sold and such sale is permitted hereunder, (4) customary provisions in leases, licenses and other contracts restricting the assignment thereof or (5) customary restrictions in connection with any Permitted Encumbrance or any document or instrument governing any Permitted Encumbrance (provided that any such restriction contained therein relates only to the asset or assets subject to such Permitted Encumbrance).
(a)any Person may merge or consolidate with or into (i) the Borrower or the Trust, provided that the Borrower or the Trust, as applicable, shall be the continuing or surviving Person and there is no Change in Control, or (ii) any one or more other Subsidiaries, including newly formed Subsidiaries, provided that when any Subsidiary Guarantor is merging or consolidating with or into another Subsidiary that is not a Subsidiary Guarantor, the Subsidiary Guarantor shall be the continuing or surviving Person;
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In the event that any Investments exceed the maximum amounts set forth above (including the thirty percent (30%) limitation for the investments described in clauses (a) through (f) above), such excess Investments shall not constitute an Event of Default but shall be excluded (without duplication) from the calculation of the financial covenants in Section 6.11.
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into in order to effectively cap, collar or exchange interest rates (from fixed to floating rates, from floating to fixed rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of the Borrower or any Subsidiary.
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Material Transfer does not violate clauses (ii) or (iii) above. The Administrative Agent shall promptly notify the Borrower when the Additional Due Diligence Period ends.
The Borrower shall not:
(f)Minimum Total Asset Value. Permit Total Asset Value at any time to be less than $500,000,000.
The Borrower shall:
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For the avoidance of doubt, (a) any applicable amounts pursuant to subsections (i) and (ii) of the definition of Net Operating Income related to a third-party lease affecting any Tax Incentive Property shall be included in the calculation of Net Operating Income for such Tax Incentive Property, but interest income of any Subsidiary from bonds issued in connection with any Permitted Tax Incentive Transaction and related rent expense under any Tax Incentive Lease Agreement with respect to the applicable Tax Incentive Property shall be disregarded for purposes of calculating Net Operating Income for such Tax Incentive Property; (b) interest payable by any Subsidiary under Tax Incentive Indebtedness in connection with any Permitted Tax Incentive Transaction (to the extent such Subsidiary is also the owner or holder of the bonds issued in connection with such Permitted Tax Incentive Transaction) shall be excluded from the calculation of Recurring Interest Expense; (c) the calculation of Total Asset Value shall include the Property Value, unrestricted cash and Cash Equivalents and any other amounts which would otherwise be included in the calculation of Total Asset Value with respect to any other Property, of any Tax Incentive Property, but the investment of any Subsidiary in bonds issued in connection with any Permitted Tax Incentive Transaction shall be excluded from any calculation of Total Asset Value; (d) the term Indebtedness shall not include any Tax Incentive Indebtedness (including pursuant to an Tax Incentive Guaranty) under any Permitted Tax Incentive Transaction; and (e) no Tax Incentive Indebtedness (including pursuant to a Tax Incentive Lease Agreement or a Tax Incentive Guaranty) shall constitute a “liability” for purposes of determining Consolidated Tangible Net Worth (but other liabilities that are current and payable to a party other than Borrower or a Subsidiary in connection with the Tax Incentive Property such as indemnification obligations shall constitute a “liability”).
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then, and in every such event (other than an event with respect to the Borrower described in clause (h) or (i) of this Article), and at any time thereafter during the continuance of such event, the Administrative Agent may, with the consent of the Required Lenders, and shall, at the request of the Required Lenders by notice to the Borrower, take any of the following actions, at the same or different times: (i) terminate the Commitments (including the Letter of Credit Commitments), and thereupon the Commitments shall terminate immediately, and (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower, (iii) require cash collateral for the LC Exposure in accordance with Section 2.06(j) hereof, and (iv) exercise all other rights and remedies under this Agreement, the other Loan Documents and applicable law; and in case of any event with respect to the Borrower described in clause (h) or (i) of this Article, the Commitments shall automatically terminate and the principal of the Loans then outstanding and cash collateral for the LC Exposure, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower.
First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent) then due and payable to the Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit Fees) then due and payable to the Lenders and Issuing Bank (including fees, charges and disbursements of counsel to the respective Lenders and the Issuing Bank (including fees and time charges for attorneys who may be employees of any Lender or the
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Issuing Bank), ratably among them in proportion to the respective amounts described in this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting unpaid Letter of Credit Fees and accrued and unpaid interest on the Loans, LC Disbursements and other Obligations then due and payable, ratably among the Lenders and the LC Issuer in proportion to the respective amounts described in this clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans and LC Disbursements, ratably among the Lenders in proportion to the respective amounts described in this clause Fourth held by them; and
Last, the balance, if any, after all of the Obligations then due and payable have been paid in full, to the Borrower or as otherwise required by Law.
Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default (other than a payment Default) unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, or any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV
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or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the reasonable consent of the Borrower (so long as no Event of Default has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent.
If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to the Borrower and such Person remove such Person as Administrative Agent and, with the reasonable consent of the Borrower so long as no Event of Default has occurred and is continuing, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.
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Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not investments in a business enterprise or securities. Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender shall, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder and in deciding whether or to the extent to which it will continue as a lender or assign or otherwise transfer its rights, interests and obligations hereunder.
All communications from the Administrative Agent to Lenders requesting Lenders’ determination, consent or approval (i) shall be given in the form of a written notice to each Lender, (ii) shall be accompanied by a description of the matter as to which such determination, consent or approval is requested, (iii) shall include a legend substantially as follows, printed in capital letters or boldface type:
“THIS COMMUNICATION REQUIRES IMMEDIATE RESPONSE. FAILURE TO RESPOND WITHIN TEN (10) BUSINESS DAYS AFTER THE DELIVERY OF THIS COMMUNICATION SHALL CONSTITUTE A DEEMED APPROVAL BY THE ADDRESSEE OF THE MATTER DESCRIBED ABOVE.”
and (iv) shall include Administrative Agent’s recommended course of action or determination in respect thereof. Each Lender shall reply promptly to any such request, but in any event within ten (10) Business Days after the delivery of such request by Administrative Agent (the “Lender Reply Period”). Unless a Lender shall give written notice to Administrative Agent that it objects to the recommendation or determination of Administrative Agent within the Lender Reply Period, such Lender shall be deemed to have approved of or consented to such recommendation or determination. With respect to decisions requiring the approval of the Required Lenders or all Lenders, Administrative Agent shall timely submit any required written notices to all Lenders and upon receiving the required approval or consent shall follow the course of action or determination recommended by Administrative Agent or such other course of action recommended by the Required Lenders or all of the Lenders, as the case may be, and each non-responding Lender shall be deemed to have concurred with such recommended course of action. Nothing in this provision shall restrict the Administrative Agent from requesting a reply to a request for an approval in less than ten (10) Business Days but the deemed approval provided in this provision shall not apply until the expiration of a ten Business Day period.
Each of the Joint Lead Arrangers for the Revolving Credit Facility, the Joint Lead Arrangers for the Term Facility, the Joint Bookrunners, the Syndication Agent and the Documentation Agent (collectively, the “Titled Agents”) in their respective capacities, assume no responsibility or obligation hereunder, including, without limitation, for servicing, enforcement or collection of any of the Loans, nor any duties as an agent hereunder for the Lenders. The titles given to the Titled Agents are solely honorific and imply no fiduciary responsibility on the part of the Titled Agents to the Administrative Agent, any Lender, the Issuing Bank, the Borrower or any other Loan Party and the use of such titles does not impose on the Titled Agents any duties or obligations greater than those of any other Lender or entitle the Titled Agents to any rights other than those to which any other Lender is entitled.
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(i)if to the Borrower, to it at c/o Ares Management, 000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, XX 00000, Attention: Xxxxx Xxxxxx, Chief Financial Officer (Telecopy No. (000) 000-0000, Email: xxxxxxx@xxxxxxxx.xxx), with a copy to: c/o Ares Management, 000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, XX 00000, Attention of General Counsel (Email: xxxxxxx@xxxxxxxx.xxx);
(ii)if to the Administrative Agent, to Xxxxx Fargo, 000 X. 0xx Xxxxxx, 0xx Xxxxx, Xxxxxxxxxxx, XX 00000, Attention: Xxxxx X. Xxxxxx (E-mail: xxxxx.x.xxxxxx@xxxxxxxxxx.xxx), with copies to: Xxxxx Fargo, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000, Attention: Xxxxxxx Xxxxxx Xxxxx (E-mail: xxxxxxx.xxxxx@xxxxxxxxxx.xxx), and to Xxxxx Fargo Bank, 00 Xxxxx Xxxxxx Xxxxx, Xxxxxxx, XX 00000, Attention: Xxxxx Xxxxxxxxxx (Email: xxxxx@xxxxxxxxxx.xxx);
(iii)if to the Issuing Bank, to Xxxxx Fargo attention Xxxxxxx Xxxxxx Xxxxx, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000 (E-mail: xxxxxxx.xxxxx@xxxxxxxxxx.xxx), with a copy to Xxxxx Fargo Bank, 00 Xxxxx Xxxxxx Xxxxx, Xxxxxxx, XX 00000, Attention: Xxxxx Xxxxxxxxxx (Email: xxxxx@xxxxxxxxxx.xxx); or
(iv)if to any other Lender, to it at its address (or telecopy number or email address) set forth in its Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by facsimile or email shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices delivered through Electronic Systems (other than email), to the extent provided in paragraph (b) below, shall be effective as provided in said paragraph (b).
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Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received as provided above, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received on the Business Day notice of and access to such posting is given to the intended recipient thereof in accordance with the standard procedures applicable to such Internet or intranet website; provided that, for both clauses (i) and (ii), if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient.
(i)Each Loan Party agrees that the Administrative Agent may, but shall not be obligated to, make Communications (as defined below) available to the Issuing Bank and the other Lenders by posting the Communications on Debt Domain, Intralinks, Syndtrak, ClearPar or a substantially similar Electronic System.
(ii)Any Electronic System used by the Administrative Agent is provided “as is” and “as available.” The Agent Parties (as defined below) do not warrant the adequacy of such Electronic Systems and expressly disclaim liability for errors or omissions in the Communications. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or any Electronic System. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower or the other Loan Parties, any Lender, the Issuing Bank or any other Person or entity for damages of any kind, losses or expenses (whether in tort, contract or otherwise) arising out of the Borrower’s, any Loan Party’s or the Administrative Agent’s transmission of communications through an Electronic System, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided, however, that in no event shall any Agent Party have any liability to the Borrower, any Lender, the Issuing Bank or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages). “Communications” means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of any Loan Party pursuant to any Loan Document or the transactions contemplated therein which is distributed by the Administrative Agent, any Lender or any Issuing Bank by means of electronic communications pursuant to this Section, including through an Electronic System.
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(A)the Borrower, provided that, the Borrower shall be deemed to have consented to an assignment unless it shall have objected thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof; provided further that no consent of the Borrower shall be required for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default has occurred and is continuing at the time of such assignment, any other assignee;
(B)the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of any Commitment or Loans to an assignee that is a Lender (other than a Defaulting Lender) with a Commitment or Loans immediately prior to giving effect to such assignment; and
(C)the Issuing Bank, provided that no consent of the Issuing Bank shall be required for an assignment of all or any portion of a Term Commitment or Term Loan.
(ii) Assignments shall be subject to the following additional conditions:
(A)except in the case of an assignment to a Lender or an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 unless each of the Borrower and the Administrative Agent otherwise consent, provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing;
(B)each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement;
(C)the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption or (y) to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and the parties to the Assignment and Assumption are participants), together with a processing and recordation fee of $4,500;
(D)the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more Credit Contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower, the Loan Parties and their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E)Borrower’s failure to consent to an assignment shall be deemed reasonable if such assignment is to a competitor of Borrower and no Event of Default exists;
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(F)each assignment by a Revolving Lender shall be of a proportionate amount of its Revolving Credit Exposure and undisbursed Revolving Commitment; and
(G)after giving effect to such assignment, the amount of the Commitment held by such assigning Lender or the outstanding principal balance of the Loans of such assigning Lender, as applicable, would be less than $5,000,000 in the case of a Commitment or Revolving Loans or $1,000,000 in the case of a Term Loan, then such assigning Lender shall assign the entire amount of its Commitment and the Loans at the time owing to it.
For the purposes of this Section 9.04(b), the term “Approved Fund” and “Ineligible Institution” have the following meanings:
“Approved Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“Ineligible Institution” means (a) a natural person, (b) a Defaulting Lender or its Lender Parent, (c) the Borrower or any of its Affiliates, or (d) a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person or relative(s) thereof; provided that, such holding company, investment vehicle or trust shall not constitute an Ineligible Institution if it (x) has not been established for the primary purpose of making or acquiring any Loans or Commitments, (y) is managed by a professional advisor, who is not such natural person or a relative thereof, having significant experience in the business of making or purchasing commercial loans, and (z) has assets greater than $25,000,000 and a significant part of its activities consist of making or purchasing commercial loans and similar extensions of credit in the ordinary course of its business.
(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this Section, from and after the effective date specified in each Assignment and Assumption the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 9.04 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amount (and stated interest) of the Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, and the Borrower, the Administrative Agent, the Issuing Bank and the Lenders shall treat each
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Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower, the Issuing Bank and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of (x) a duly completed Assignment and Assumption executed by an assigning Lender and an assignee or (y) to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and the parties to the Assignment and Assumption are participants), the assignee’s completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section and any written consent to such assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register; provided that if either the assigning Lender or the assignee shall have failed to make any payment required to be made by it pursuant to Section 2.06(d) or (e), 2.07(b), 2.18(d) or 9.03(c), the Administrative Agent shall have no obligation to accept such Assignment and Assumption and record the information therein in the Register unless and until such payment shall have been made in full, together with all accrued interest thereon. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
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TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
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In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective authorized officers as of the day and year first above written.
AIREIT Operating Partnership LP,
a Delaware limited partnership
By: Ares Industrial Real Estate Income Trust Inc.,
a Maryland corporation, its general partner
By: /s/ XXXXX XXXXXX
Name:Xxxxx Xxxxxx
Title:Principal, Chief Financial Officer and Treasurer
[AIREIT Operating Partnership LP – Third Amended and Restated Credit Agreement]
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent, as Issuing Bank and as a Lender
By /s/ XXXXX XXXXXXXXXX
Name:Xxxxx Xxxxxxxxxx
Title:Vice President
[AIREIT Operating Partnership LP – Third Amended and Restated Credit Agreement]
BANK OF AMERICA, N.A., as Issuing Bank and as a Lender
By /s/ XXXX XXXXXXX
Name: Xxxx Xxxxxxx
[AIREIT Operating Partnership LP – Third Amended and Restated Credit Agreement]
Capital One, N.A., as a Lender
By /s/ XXXXXXX XXXXXX
Name: Xxxxxxx XxXxxx
Title: Authorized Signer
TRUIST BANK, as a Lender
By /s/ XXXXXXXXXXX XXXXXXX
Name: Xxxxxxxxxxx Xxxxxxx
Title: Director
SIGNATURE PAGE TO THIRD AMENDED AND REITERATED CREDIT AGREEMENT, AMONG AIREIT OPERATING PARTNERSHIP LP, EACH LENDER PARTY HERETO AND XXXXX FARGO BANK, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
U.S. Bank National Association, as a Lender
By /s/ XXXXXX XXXXX
Name: Xxxxxx Xxxxx
Title: Vice President
SIGNATURE PAGE TO THIRD AMENDED AND REITERATED CREDIT AGREEMENT, AMONG AIREIT OPERATING PARTNERSHIP LP, EACH LENDER PARTY HERETO AND XXXXX FARGO BANK, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
PNC BANK, NATIONAL ASSOCIATION, as a Lender
By /s/ XXXXX X. XXXXXXX
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
SIGNATURE PAGE TO THIRD AMENDED AND REITERATED CREDIT AGREEMENT, AMONG AIREIT OPERATING PARTNERSHIP LP, EACH LENDER PARTY HERETO AND XXXXX FARGO BANK, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
REGIONS BANK, as a Lender
By /s/ GHI X. XXXXX
Name: Ghi X. Xxxxx
Title: Senior Vice President
SIGNATURE PAGE TO THIRD AMENDED AND REITERATED CREDIT AGREEMENT, AMONG AIREIT OPERATING PARTNERSHIP LP, EACH LENDER PARTY HERETO AND XXXXX FARGO BANK, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
JPMORGAN CHASE BANK, N.A., as a Lender
By /s/ XXXX XXXXXXX
Name: Xxxx Xxxxxxx
Title: Authorized Officer
SIGNATURE PAGE TO THIRD AMENDED AND REITERATED CREDIT AGREEMENT, AMONG AIREIT OPERATING PARTNERSHIP LP, EACH LENDER PARTY HERETO AND XXXXX FARGO BANK, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
XXXXXXX SACHS BANK USA, as a Lender
By /s/ XXXXXXXX XXXXXXX
Name: Xxxxxxxx Xxxxxxx
Title: Authorized Signatory
THE HUNTINGTON NATIONAL BANK, as a Lender
By /s/ XXXX X. XXXXX
Name: Xxxx X. Xxxxx
Title: Assistant Vice President
SIGNATURE PAGE TO THIRD AMENDED AND REITERATED CREDIT AGREEMENT, AMONG AIREIT OPERATING PARTNERSHIP LP, EACH LENDER PARTY HERETO AND XXXXX FARGO BANK, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
Citibank, N.A., as a Lender
By /s/ XXXX XXX
Name: Xxxx Xxx
Title: Authorized Signatory
SIGNATURE PAGE TO THIRD AMENDED AND REITERATED CREDIT AGREEMENT, AMONG AIREIT OPERATING PARTNERSHIP LP, EACH LENDER PARTY HERETO AND XXXXX FARGO BANK, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
Pinnacle Bank, a Tennessee Bank, as a Lender
By /s/ J. XXXXXXX XXXXXXXXX
Name: J. Xxxxxxx Xxxxxxxxx
Title: Senior Vice President
SIGNATURE PAGE TO THIRD AMENDED AND REITERATED CREDIT AGREEMENT, AMONG AIREIT OPERATING PARTNERSHIP LP, EACH LENDER PARTY HERETO AND XXXXX FARGO BANK, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
Zions Bancorporation, N.A., dba Vectra Bank Colorado, as a Lender
By /s/ H. XXXX XXXXXX
Name: H. Xxxx Xxxxxx
Title: Senior Vice President
SIGNATURE PAGE TO THIRD AMENDED AND REITERATED CREDIT AGREEMENT, AMONG AIREIT OPERATING PARTNERSHIP LP, EACH LENDER PARTY HERETO AND XXXXX FARGO BANK, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
ASSOCIATED BANK, NATIONAL ASSOCIATION, as a Lender
By /s/ XXXXXXXX XXXX
Name: Xxxxxxxx Xxxx
Title: Senior Vice President
SIGNATURE PAGE TO THIRD AMENDED AND REITERATED CREDIT AGREEMENT, AMONG AIREIT OPERATING PARTNERSHIP LP, EACH LENDER PARTY HERETO AND XXXXX FARGO BANK, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
EASTERN BANK, as a Lender
By /s/ XXXXX X. XXXX
Name: Xxxxx X. Xxxx
Title: Senior Vice President
CONSENT, REAFFIRMATION AND AGREEMENT OF TRUST GUARANTOR
The undersigned (the “Trust Guarantor”) (a) acknowledges receipt of the foregoing Third Amended and Restated Credit Agreement (the “Agreement”), (b) consents to the execution and delivery of the Agreement, and (c) reaffirms all of its obligations and covenants under that certain Trust Guaranty, dated as of September 18, 2017 (as amended, restated, modified, supplemented, reaffirmed or otherwise replaced from time to time, the “Trust Guaranty”), as increased by the Agreement, and agrees that none of its obligations and covenants under the Trust Guaranty shall be reduced, impaired or limited by the execution and delivery of the Agreement.
The Trust Guarantor hereby represents and warrants to Administrative Agent and Lenders that: (a) the Trust Guarantor has duly executed, delivered and authorized this Consent, Reaffirmation, and Agreement of Guarantor (this “Consent”); (b) the Trust Guarantor has obtained all necessary consents, if any, required in connection with the execution, delivery and performance of this Consent and the transactions contemplated hereby; (c) the execution, delivery and performance of this Consent and the transactions contemplated hereby do not violate the Trust Guarantor’s organizational documents, if any, or any contract to which is a party, and (d) no Default or event, omission or failure of condition which would constitute a Default after notice or passage of time, or both exists under the Trust Guaranty and that all representations and warranties in the Trust Guaranty remain true and correct in all material respects (except to the extent qualified by materiality, material adverse effect or words or phrases of similar import, in which case such representations and warranties shall be true and correct in all respects) and are deemed remade as of the date hereof (except with respect to representations and warranties made as of an expressed date, in which case such representations and warranties shall be true and correct as of such date). Further, the Trust Guarantor acknowledges and agrees that each reference in the Trust Guaranty to the “Credit Agreement” shall hereafter mean and refer to the Agreement, as the same may be amended, restated, modified or supplemented from time to time.
This Consent may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same instrument. This Consent may be executed by each party on separate copies, which copies, when combined so as to include the signatures of all parties, shall constitute a single counterpart of the Consent. Any party delivering an executed counterpart of this Consent by electronic transmission shall also deliver an original executed counterpart, but the failure to do so shall not affect the validity, enforceability, or binding effect of this Consent.
This Consent shall be governed by and construed and interpreted in accordance with the internal laws of the State of New York but excluding any principles of conflicts of law or other rule of law that would cause the application of the law of any jurisdiction other than the laws of the State of New York (other than Sections 5-1401 and 5-1402 of the General Obligations Law of New York).
Dated as of March 31, 2022.
[CONTINUED ON FOLLOWING PAGE.]
IN WITNESS WHEREOF, Trust Guarantor has caused this Consent to be duly executed and delivered by its authorized officer as of the day and year first above written.
TRUST GUARANTOR:
Ares Industrial Real Estate Income Trust Inc.,
a Maryland corporation
By: /s/ XXXXX XXXXXX
Name:Xxxxx Xxxxxx
Title: | Principal, Chief Financial Officer and Treasurer |
CONSENT, REAFFIRMATION AND AGREEMENT OF SUBSIDIARY GUARANTORS
Each of the undersigned (collectively, the “Subsidiary Guarantors”) (a) acknowledges receipt of the foregoing Third Amended and Restated Credit Agreement (the “Agreement”), (b) consents to the execution and delivery of the Agreement, and (c) reaffirms all of its obligations and covenants under that certain Subsidiary Guaranty, dated as of February 28, 2018 (as amended, restated, modified, supplemented, reaffirmed or otherwise replaced from time to time, the “Subsidiary Guaranty”), as increased by the Agreement, and agrees that none of its obligations and covenants under the Subsidiary Guaranty shall be reduced or limited by the execution and delivery of the Agreement.
Each of the Subsidiary Guarantors hereby represents and warrants to Administrative Agent that: (a) it has duly executed, delivered and authorized this Consent, Reaffirmation, and Agreement of Subsidiary Guarantors (this “Consent”); (b) it has obtained all necessary consents, if any, required in connection with the execution, delivery and performance of this Consent and the transactions contemplated hereby; (c) the execution, delivery and performance of this Consent and the transactions contemplated hereby do not violate such Subsidiary Guarantor’s organizational documents, if any, or any contract to which is a party, and (d) no Default or event, omission or failure of condition which would constitute a Default after notice or passage of time, or both exists under the Subsidiary Guaranty and that all representations and warranties in the Subsidiary Guaranty remain true and correct in all material respects (except to the extent qualified by materiality, material adverse effect or words or phrases of similar import, in which case such representations and warranties shall be true and correct in all respects) and are deemed remade as of the date hereof (except with respect to representations and warranties made as of an expressed date, in which case such representations and warranties shall be true and correct as of such date). Further, the Subsidiary Guarantors acknowledge and agree that each reference in the Subsidiary Guaranty to the “Credit Agreement” shall hereafter mean and refer to the Agreement, as the same may be amended, restated, modified or supplemented from time to time.
This Consent may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same instrument. This Consent may be executed by each party on separate copies, which copies, when combined so as to include the signatures of all parties, shall constitute a single counterpart of the Consent. Any party delivering an executed counterpart of this Consent by electronic transmission shall also deliver an original executed counterpart, but the failure to do so shall not affect the validity, enforceability, or binding effect of this Consent.
This Consent shall be governed by and construed and interpreted in accordance with the internal laws of the State of New York but excluding any principles of conflicts of law or other rule of law that would cause the application of the law of any jurisdiction other than the laws of the State of New York (other than Sections 5-1401 and 5-1402 of the General Obligations Law of New York).
Dated as of March 31, 2022.
[CONTINUED ON FOLLOWING PAGE.]
IN WITNESS WHEREOF, the parties hereto have caused this Consent to be duly executed and delivered by their respective authorized officers as of the day and year first above written.
SUBSIDIARY GUARANTORS:
BCI IV Medley IC LLC
BCI IV Midway IC LLC
BCI IV Iron Run DC LLC
BCI IV 7A DC LLC
BCI IV Addison DC II LLC
BCI IV Quakerbridge DC LLC
BCI IV Hebron Airpark Logistics Center LLC
BCI IV Avenue B Industrial Center LLC
BCI IV King of Prussia Industrial Center LLC
BCI IV Edison DC LLC
BCI IV Bishops Gate DC LLC
BCI IV Norcross Industrial Center LLC
BCI IV 7A DC II LLC
BCI IV Carlstadt IC LLC
BCI IV Lima DC LLC
BCI IV EaglePoint LC LLC
BCI IV Airpark International Logistics Center LLC
BCI IV Pennsy Logistics Center LLC
BCI IV Richmond Logistics Center LLC
BCI IV Silicon Valley IC LLC
BCI IV Madison DC LLC
BCI IV 355 Logistics Center LLC
BCI IV California Business Center LLC
BCI IV Commerce Farms Logistics Center LLC
BCI IV Air Commerce Center LLC
BCI IV Aurora Corporate Center LLC
BCI IV I-24 IC LLC
BCI IV Xxxxxx XX LLC
BCI IV Xxxxxx Mill IC LLC
BCI IV Greater Boston IC I LLC
BCI IV Greater Boston IC II LLC
BCI IV Xxxxxxxx XX LLC
BCI IV Southpark CC I LLC
BCI IV Southpark CC II LLC
BCI IV Windward Ridge BC LLC
By:AIREIT Operating Partnership LP,
a Delaware limited partnership,
the sole member of each of the foregoing entities
By:Ares Industrial Real Estate Income Trust Inc.,
a Maryland corporation, its general partner
By: /s/ XXXXX XXXXXX
Name:Xxxxx Xxxxxx
Title: | Principal, Chief Financial Officer & Treasurer |
SUBSIDIARY GUARANTORS CONT.:
BCI IV Palm Beach CC LLC
BCI IV Pompano IC LLC
BCI IV Xxxxxx XX LLC
BCI IV Park 100 DC LLC
BCI IV Trade Zone IC LLC
BCI IV Totowa CC LLC
BCI IV Xxxxxxxx XX LLC
BCI IV Chicago IC LLC
BCI IV Upland DC LLC
BCI IV Salt Lake City DC LLC
BCI IV Salt Lake City DC II LLC
BCI IV Kent IP LLC
BCI IV Renton DC LLC
BCI IV West Valley DC II LLC
BCI IV Auburn 167 IC LLC
BCI IV Tacoma CC LLC
By:AIREIT Portfolio Real Estate Holdco LLC,
a Delaware limited liability company,
the sole member of each of the foregoing entities
By:AIREIT Operating Partnership LP,
a Delaware limited partnership, its sole member
By:Ares Industrial Real Estate Income Trust Inc.,
a Maryland corporation, its general partner
By: /s/ XXXXX XXXXXX
Name:Xxxxx Xxxxxx
Title:Principal, Chief Financial Officer & Treasurer
SUBSIDIARY GUARANTORS CONT.:
BCI IV Airport IC LP,
a Delaware limited partnership
By:BCI IV Airport IC GP LLC,
a Delaware limited liability company, its general partner
By:AIREIT Operating Partnership LP,
a Delaware limited partnership, its sole member
By:Ares Industrial Real Estate Income Trust Inc.,
a Maryland corporation, its general partner
By: /s/ XXXXX XXXXXX
Name:Xxxxx Xxxxxx
Title:Principal, Chief Financial Officer & Treasurer
BCI IV Xxxxx Trade Center LP,
a Delaware limited partnership
By:BCI IV Xxxxx Trade Center GP LLC,
a Delaware limited liability company, its general partner
By:AIREIT Operating Partnership LP,
a Delaware limited partnership, its sole member
By:Ares Industrial Real Estate Income Trust Inc.,
a Maryland corporation, its general partner
By: /s/ XXXXX XXXXXX
Name:Xxxxx Xxxxxx
Title:Principal, Chief Financial Officer & Treasurer
SUBSIDIARY GUARANTORS CONT.:
BCI IV Monte Vista IC LP,
a Delaware limited partnership
By:BCI IV Monte Vista IC GP LLC,
a Delaware limited liability company, its general partner
By:AIREIT Operating Partnership LP,
a Delaware limited partnership, its sole member
By:Ares Industrial Real Estate Income Trust Inc.,
a Maryland corporation, its general partner
By: /s/ XXXXX XXXXXX
Name:Xxxxx Xxxxxx
Title:Principal, Chief Financial Officer & Treasurer
BCI IV Executive Airport DC II LLC,
a Delaware limited liability company
By:BCI IV BR LLC,
a Delaware limited liability company, its sole member
By:BCI IV Executive Airport DC II Holdco LLC,
a Delaware limited liability company, its sole member
By:AIREIT Operating Partnership LP,
a Delaware limited partnership, its sole member
By:Ares Industrial Real Estate Income Trust Inc.,
a Maryland corporation, its general partner
By: /s/ XXXXX XXXXXX
Name:Xxxxx Xxxxxx
Title:Principal, Chief Financial Officer & Treasurer
SUBSIDIARY GUARANTORS CONT.:
BCI IV Marigold DC LP,
a Delaware limited partnership
By:BCI IV Marigold DC GP LLC,
a Delaware limited liability company, its general partner
By:AIREIT Operating Partnership LP,
a Delaware limited partnership, its sole member
By:Ares Industrial Real Estate Income Trust Inc.,
a Maryland corporation, its general partner
By: /s/ XXXXX XXXXXX
Name:Xxxxx Xxxxxx
Title:Principal, Chief Financial Officer & Treasurer
BCI IV Intermodal Logistics Center LP,
a Delaware limited partnership
By:BCI IV Intermodal Logistics Center GP LLC,
a Delaware limited liability company, its general partner
By:AIREIT Operating Partnership LP,
a Delaware limited partnership, its sole member
By:Ares Industrial Real Estate Income Trust Inc.,
a Maryland corporation, its general partner
By: /s/ XXXXX XXXXXX
Name:Xxxxx Xxxxxx
Title:Principal, Chief Financial Officer & Treasurer
SUBSIDIARY GUARANTORS CONT.:
BCI IV Miraloma IC LP,
a Delaware limited partnership
By:BCI IV Miraloma IC GP LLC,
a Delaware limited liability company, its general partner
By:AIREIT Operating Partnership LP,
a Delaware limited partnership, its sole member
By:Ares Industrial Real Estate Income Trust Inc.,
a Maryland corporation, its general partner
By: /s/ XXXXX XXXXXX
Name:Xxxxx Xxxxxx
Title:Principal, Chief Financial Officer & Treasurer
BCI IV Xxxxxx Industrial Center LP,
a Delaware limited partnership
By:BCI IV Xxxxxx Industrial Center GP LLC,
a Delaware limited liability company, its general partner
By:AIREIT Operating Partnership LP,
a Delaware limited partnership, its sole member
By:Ares Industrial Real Estate Income Trust Inc.,
a Maryland corporation, its general partner
By: /s/ XXXXX XXXXXX
Name:Xxxxx Xxxxxx
Title:Principal, Chief Financial Officer & Treasurer
SUBSIDIARY GUARANTORS CONT.:
BCI IV Rancho Cucamonga BC LP,
a Delaware limited partnership
By:BCI IV Rancho Cucamonga BC GP LLC,
a Delaware limited liability company, its general partner
By:AIREIT Operating Partnership LP,
a Delaware limited partnership, its sole member
By:Ares Industrial Real Estate Income Trust Inc.,
a Maryland corporation, its general partner
By: /s/ XXXXX XXXXXX
Name:Xxxxx Xxxxxx
Title:Principal, Chief Financial Officer & Treasurer
BCI IV Brodhead DC LLC,
a Delaware limited liability company
By:BCI IV Brodhead DC Holdco LLC,
a Delaware limited liability company, its sole member
By:AIREIT Operating Partnership LP,
a Delaware limited partnership, its sole member
By:Ares Industrial Real Estate Income Trust Inc.,
a Maryland corporation, its general partner
By: /s/ XXXXX XXXXXX
Name:Xxxxx Xxxxxx
Title:Principal, Chief Financial Officer & Treasurer
SUBSIDIARY GUARANTORS CONT.:
BCI IV XxXxxxx XX LP,
a Delaware limited partnership
By:BCI IV XxXxxxx XX GP LLC,
a Delaware limited liability company, its general partner
By:BTC I REIT B LLC,
a Delaware limited liability company, its sole member
By:IPT BTC I GP LLC,
a Delaware limited liability company, its manager
By:IPT Real Estate Holdco LLC,
a Delaware limited liability company, its sole member
By:AIREIT Portfolio Real Estate Holdco LLC,
a Delaware limited liability company, its sole member
By:AIREIT Operating Partnership LP,
a Delaware limited partnership, its sole member
By:Ares Industrial Real Estate Income Trust Inc.,
a Maryland corporation, its general partner
By: /s/ XXXXX XXXXXX
Name:Xxxxx Xxxxxx
Title:Principal, Chief Financial Officer & Treasurer
BCI IV Iron Run DC II LLC,
a Delaware limited liability company
By:BCI IV Iron Run DC II Holdco LLC,
a Delaware limited liability company, its managing member
By:AIREIT Portfolio Real Estate Holdco LLC,
a Delaware limited liability company, its sole member
By:AIREIT Operating Partnership LP,
a Delaware limited partnership, its sole member
By:Ares Industrial Real Estate Income Trust Inc.,
a Maryland corporation, its general partner
By: /s/ XXXXX XXXXXX
Name:Xxxxx Xxxxxx
Title:Principal, Chief Financial Officer & Treasurer
SUBSIDIARY GUARANTORS CONT.:
BCI IV Mechanicsburg DC LLC,
a Delaware limited liability company
By:BCI IV Mechanicsburg DC Holdco LLC,
a Delaware limited liability company, its managing member
By:AIREIT Portfolio Real Estate Holdco LLC,
a Delaware limited liability company, its sole member
By:AIREIT Operating Partnership LP,
a Delaware limited partnership, its sole member
By:Ares Industrial Real Estate Income Trust Inc.,
a Maryland corporation, its general partner
By: /s/ XXXXX XXXXXX
Name:Xxxxx Xxxxxx
Title:Principal, Chief Financial Officer & Treasurer
BCI IV Drew Court CC LLC,
a Delaware limited liability company
By:BCI IV Drew Court CC Holdco LLC,
a Delaware limited liability company, its managing member
By:AIREIT Portfolio Real Estate Holdco LLC,
a Delaware limited liability company, its sole member
By:AIREIT Operating Partnership LP,
a Delaware limited partnership, its sole member
By:Ares Industrial Real Estate Income Trust Inc.,
a Maryland corporation, its general partner
By: /s/ XXXXX XXXXXX
Name:Xxxxx Xxxxxx
Title:Principal, Chief Financial Officer & Treasurer
SUBSIDIARY GUARANTORS CONT.:
BCI IV Stockton DC II LP,
a Delaware limited partnership
By:BCI IV Stockton DC II GP LLC,
a Delaware limited liability company, its general partner
By:AIREIT Portfolio Real Estate Holdco LLC,
a Delaware limited liability company, its sole member
By:AIREIT Operating Partnership LP,
a Delaware limited partnership, its sole member
By:Ares Industrial Real Estate Income Trust Inc.,
a Maryland corporation, its general partner
By: /s/ XXXXX XXXXXX
Name:Xxxxx Xxxxxx
Title:Principal, Chief Financial Officer & Treasurer
BCI IV Stockton Industrial Center LP,
a Delaware limited partnership
By:BCI IV Stockton Industrial Center GP LLC,
a Delaware limited liability company, its general partner
By:AIREIT Portfolio Real Estate Holdco LLC,
a Delaware limited liability company, its sole member
By:AIREIT Operating Partnership LP,
a Delaware limited partnership, its sole member
By:Ares Industrial Real Estate Income Trust Inc.,
a Maryland corporation, its general partner
By: /s/ XXXXX XXXXXX
Name:Xxxxx Xxxxxx
Title:Principal, Chief Financial Officer & Treasurer
SUBSIDIARY GUARANTORS CONT.:
BCI IV Tracy DC LP,
a Delaware limited partnership
By:BCI IV Tracy DC GP LLC,
a Delaware limited liability company, its general partner
By:AIREIT Portfolio Real Estate Holdco LLC,
a Delaware limited liability company, its sole member
By:AIREIT Operating Partnership LP,
a Delaware limited partnership, its sole member
By:Ares Industrial Real Estate Income Trust Inc.,
a Maryland corporation, its general partner
By: /s/ XXXXX XXXXXX
Name:Xxxxx Xxxxxx
Title:Principal, Chief Financial Officer & Treasurer
BCI IV Xxxxx XX XX LP,
a Delaware limited partnership
By:BCI IV Xxxxx DC II GP LLC,
a Delaware limited liability company, its general partner
By:AIREIT Portfolio Real Estate Holdco LLC,
a Delaware limited liability company, its sole member
By:AIREIT Operating Partnership LP,
a Delaware limited partnership, its sole member
By:Ares Industrial Real Estate Income Trust Inc.,
a Maryland corporation, its general partner
By: /s/ XXXXX XXXXXX
Name:Xxxxx Xxxxxx
Title:Principal, Chief Financial Officer & Treasurer
SUBSIDIARY GUARANTORS CONT.:
BCI IV Etiwanda IC LP,
a Delaware limited partnership
By:BCI IV Etiwanda IC GP LLC,
a Delaware limited liability company, its general partner
By:AIREIT Portfolio Real Estate Holdco LLC,
a Delaware limited liability company, its sole member
By:AIREIT Operating Partnership LP,
a Delaware limited partnership, its sole member
By:Ares Industrial Real Estate Income Trust Inc.,
a Maryland corporation, its general partner
By: /s/ XXXXX XXXXXX
Name:Xxxxx Xxxxxx
Title:Principal, Chief Financial Officer & Treasurer
BCI IV Valencia IC LP,
a Delaware limited partnership
By:BCI IV Valencia IC GP LLC,
a Delaware limited liability company, its general partner
By:AIREIT Portfolio Real Estate Holdco LLC,
a Delaware limited liability company, its sole member
By:AIREIT Operating Partnership LP,
a Delaware limited partnership, its sole member
By:Ares Industrial Real Estate Income Trust Inc.,
a Maryland corporation, its general partner
By: /s/ XXXXX XXXXXX
Name:Xxxxx Xxxxxx
Title:Principal, Chief Financial Officer & Treasurer
SUBSIDIARY GUARANTORS CONT.:
BCI IV Stonewood Logistics Center LLC,
a Delaware limited liability company
By:BCI IV Stonewood LC Holdco LLC,
a Delaware limited liability company, its sole and managing member
By:AIREIT Operating Partnership LP,
a Delaware limited partnership, its sole member
By:Ares Industrial Real Estate Income Trust Inc.,
a Maryland corporation, its general partner
By: /s/ XXXXX XXXXXX
Name:Xxxxx Xxxxxx
Title:Principal, Chief Financial Officer & Treasurer
BCI IV Colony Crossing LP,
a Delaware limited partnership
By:BCI IV Colony Crossing GP LLC,
a Delaware limited liability company, its general partner
By:AIREIT Operating Partnership LP,
a Delaware limited partnership, its sole member
By:Ares Industrial Real Estate Income Trust Inc.,
a Maryland corporation, its general partner
By: /s/ XXXXX XXXXXX
Name:Xxxxx Xxxxxx
Title:Principal, Chief Financial Officer & Treasurer
SUBSIDIARY GUARANTORS CONT.:
BCI IV Monument BP LP,
a Delaware limited partnership
By:BCI IV Monument BP GP LLC,
a Delaware limited liability company, its general partner
By:AIREIT Operating Partnership LP,
a Delaware limited partnership, its sole member
By:Ares Industrial Real Estate Income Trust Inc.,
a Maryland corporation, its general partner
By: /s/ XXXXX XXXXXX
Name:Xxxxx Xxxxxx
Title:Principal, Chief Financial Officer & Treasurer
SCHEDULE 1.01(g)
EXISTING LIENS
NONE
SCHEDULE 2.01A
COMMITMENTS
Name | Revolving Commitment and Percentage | Initial Term Loan Commitment and Percentage | |||
Xxxxx Fargo Bank, National Association | $110,000,000.00 | 11.000000000% | $55,250,000.00 | 10.0454545455% | |
Bank of America, N.A | $110,000,000.00 | 11.0000000000% | $55,250,000.00 | 10.0454545455% | |
Capital One, N.A. | $97,000,000.00 | 9.7000000000% | $53,000,000.00 | 9.636363636% | |
Truist Bank | $97,000,000.00 | 9.7000000000% | $53,000,000.00 | 9.636363636% | |
U.S. Bank National Association | $97,000,000.00 | 9.7000000000% | $53,000,000.00 | 9.636363636% | |
PNC Bank, National Association | $80,000,000.00 | 8.0000000000% | $45,000,000.00 | 8.181818181% | |
Regions Bank | $80,000,000.00 | 8.0000000000% | $45,000,000.00 | 8.181818181% | |
JPMorgan Chase Bank, N.A. | $80,000,000.00 | 8.0000000000% | $45,000,000.00 | 8.181818181% | |
Xxxxxxx Xxxxx | $65,000,000.00 | 6.5000000000% | $35,000,000.00 | 6.363636363% | |
The Huntington National Bank | $65,000,000.00 | 6.5000000000% | $35,000,000.00 | 6.363636363% | |
CitiBank, N.A. | $49,000,000.00 | 4.9000000000% | $26,000,000.00 | 4.727272727% | |
Pinnacle Bank | $25,000,000.00 | 2.5000000000% | $15,000,000.00 | 2.727272727% | |
Zions Bancorporation, N.A. dba Vectra Bank Colorado | $20,000,000.00 | 2.0000000000% | $15,000,000.00 | 2.727272727% | |
Associated Bank, National Association | $18,000,000.00 | 1.8000000000% | $14,000,000.00 | 2.545454545% | |
Eastern Bank | $7,000,000.00 | 0.7000000000% | $5,500,000.00 | 1.000000000% | |
Total | $1,000,000,000.00 | 100.000000000% | $550,000,000.00 | 100.000000000% | |
SCHEDULE 2.01B
LETTER OF CREDIT COMMITMENTS
Name | Letter of Credit Commitment | Percentage | |
Xxxxx Fargo Bank, National Association | $12,500,000.00 | 50.000000000% | |
Bank of America, N.A. | $12,500,000.00 | 50.000000000% | |
Total | $25,000,000.00 | 100.000000000% | |
SCHEDULE 2.06
EXISTING LETTERS OF CREDIT
# | LC Number | Amount | Issue Date | Maturity Date |
1. | IS000077853U | $30,000.00 | March 26, 2019 | March 26, 2020 |
SCHEDULE 3.06
DISCLOSED MATTERS
NONE
SCHEDULE 3.13
UNENCUMBERED PROPERTIES
# | Asset Name | Entity Name | Date Acquired / Completed | Date Added As Unencumbered Property |
|---|---|---|---|---|
1 | Medley IC | BCI IV Medley IC LLC | 4/11/2018 | 4/11/2018 |
2 | Midway IC | BCI IV Midway IC LLC | 10/22/2018 | 10/22/2018 |
3 | Iron Run DC | BCI IV Iron Run DC LLC | 12/4/2018 | 12/4/2018 |
4 | 7A DC | BCI IV 7A DC LLC | 2/11/2019 | 2/11/2019 |
5 | Airport IC | BCI IV Airport IC LP | 1/8/2019 | 1/8/2019 |
6 | Addison DC II | BCI IV Addison DC II LLC | 12/21/2018 | 12/27/2018 |
7 | Xxxxx Trade Center | BCI IV Xxxxx Trade Center LP | 1/31/2019 | 1/31/2019 |
8 | Xxxxxxxxxxxx XX | XXX XX Xxxxxxxxxxxx XX LLC | 3/11/2019 | 3/11/2019 |
9 | Hebron Airpark Logistics Center | BCI IV Hebron Airpark Logistics Center LLC | 5/30/2019 | 5/30/2019 |
10 | Monte Vista IC | BCI IV Monte Vista IC LP | 6/7/2019 | 6/7/2019 |
11 | Avenue B Industrial Center | BCI IV Avenue B Industrial Center LLC | 9/11/2019 | 9/16/2019 |
12 | King of Prussia IC I | BCI IV King of Prussia Industrial Center LLC | 6/21/2019 | 6/21/2019 |
13 | King of Prussia IC II | BCI IV King of Prussia Industrial Center LLC | 6/21/2019 | 6/21/2019 |
14 | King of Prussia IC III | BCI IV King of Prussia Industrial Center LLC | 6/21/2019 | 6/21/2019 |
15 | King of Prussia IC IV | BCI IV King of Prussia Industrial Center LLC | 6/21/2019 | 6/21/2019 |
16 | King of Prussia IC V | BCI IV King of Prussia Industrial Center LLC | 6/21/2019 | 6/21/2019 |
00 | Xxxxxx XX | XXX XX Xxxxxx XX LLC | 6/28/2019 | 6/28/2019 |
18 | Executive Airport DC II | BCI IV Executive Airport DC II LLC | 9/3/2020 | 8/17/2021 |
00 | Xxxxxxx Xxxx XX | XXX XX Xxxxxxx Xxxx XX LLC | 12/31/2019 | 12/10/2019 |
00 | Xxxxxxxx XX | XXX XX Xxxxxxxx XX LP | 12/20/2019 | 12/31/2019 |
21 | Norcross Industrial Center | BCI IV Norcross Industrial Center LLC | 3/23/2020 | 8/17/2021 |
22 | 7A DC II | BCI IV 7A DC II LLC | 5/27/2020 | 6/1/2020 |
23 | Carlstadt IC I | BCI IV Carlstadt IC LLC | 11/10/2020 | 11/11/2020 |
# | Asset Name | Entity Name | Date Acquired / Completed | Date Added As Unencumbered Property |
|---|---|---|---|---|
24 | Carlstadt IC II | BCI IV Carlstadt IC LLC | 11/10/2020 | 11/11/2020 |
00 | Xxxx XX | XXX XX Xxxx XX LLC | 4/15/2020 | 4/21/2020 |
26 | Eaglepoint Logistics Center | BCI IV Eaglepoint LC LLC | 5/26/2020 | 6/1/2020 |
27 | Intermodal Logistics Center | BCI IV Intermodal Logistics Center LP | 6/29/2020 | 6/30/2020 |
28 | Airpark International Logistics Center I | BCI IV Airpark International Logistics Center LLC | 10/9/2020 | 10/15/2020 |
29 | Airpark International Logistics Center II | BCI IV Airpark International Logistics Center LLC | 10/9/2020 | 10/16/2020 |
30 | Miraloma IC | BCI IV Miraloma IC LP | 12/10/2020 | 3/5/2021 |
31 | Xxxxxx Industrial Center | BCI IV Xxxxxx Industrial Center LP | 12/7/2020 | 3/5/2021 |
32 | Pennsy Logistics Center I | BCI IV Pennsy Logistics Center LLC | 12/18/2020 | 3/5/2021 |
33 | Pennsy Logistics Center II | BCI IV Pennsy Logistics Center LLC | 12/18/2020 | 3/5/2021 |
00 | Xxxxxx Xxxxxxxxx XX | BCI IV Rancho Cucamonga BC LP | 5/28/2021 | 6/3/2021 |
35 | Richmond Logistics Center | BCI IV Richmond Logistics Center LLC | 6/15/2021 | 6/29/2021 |
36 | Silicon Valley IC | BCI IV Silicon Valley IC LLC | 6/15/2021 | 6/29/2021 |
00 | Xxxxxxxx XX | XXX XX Xxxxxxxx XX LLC | 6/15/2021 | 6/29/2021 |
00 | XxXxxxx XX | XXX XX XxXxxxx XX LP | 6/15/2021 | 6/29/2021 |
39 | Palm Beach CC | BCI IV Palm Beach CC LLC | 7/14/2021 | 7/14/2021 |
40 | Pompano IC I | BCI IV Pompano IC LLC | 7/14/2021 | 7/14/2021 |
41 | Pompano IC II | BCI IV Pompano IC LLC | 7/14/2021 | 7/14/2021 |
00 | Xxxxxx XX | XXX XX Xxxxxx XX LLC | 7/14/2021 | 7/14/2021 |
00 | Xxxx 000 XX | XXX XX Xxxx 000 XX LLC | 7/14/2021 | 7/14/2021 |
44 | Trade Zone IC | BCI IV Trade Zone IC LLC | 7/14/2021 | 7/14/2021 |
45 | Totowa CC | BCI IV Totowa CC LLC | 7/14/2021 | 7/14/2021 |
46 | Xxxxxxxx XX | BCI IV Xxxxxxxx XX LLC | 7/14/2021 | 7/14/2021 |
00 | Xxxx Xxx XX II | BCI IV Iron Run DC II LLC | 7/14/2021 | 7/14/2021 |
00 | Xxxxxxxxxxxxx XX | XXX XX Xxxxxxxxxxxxx XX LLC | 7/14/2021 | 7/14/2021 |
# | Asset Name | Entity Name | Date Acquired / Completed | Date Added As Unencumbered Property |
|---|---|---|---|---|
49 | Drew Court CC I | BCI IV Drew Court CC LLC | 7/14/2021 | 7/14/2021 |
50 | Drew Court CC II | BCI IV Drew Court CC LLC | 7/14/2021 | 7/14/2021 |
51 | Chicago IC | BCI IV Chicago IC LLC | 7/14/2021 | 7/14/2021 |
00 | Xxxxxx XX | XXX XX Xxxxxx XX LLC | 7/14/2021 | 7/14/2021 |
00 | Xxxxxxxx XX XX | XXX XX Xxxxxxxx XX II LP | 7/14/2021 | 7/14/2021 |
54 | Stockton IC Xxxx 0 | XXX XX Xxxxxxxx Xxxxxxxxxx Xxxxxx LP | 7/14/2021 | 7/14/2021 |
55 | Stockton IC Xxxx 0 | XXX XX Xxxxxxxx Xxxxxxxxxx Xxxxxx LP | 7/14/2021 | 7/14/2021 |
56 | Tracy DC I | BCI IV Tracy DC LP | 7/14/2021 | 7/14/2021 |
57 | Xxxxx XX XX | BCI IV Xxxxx DC II LP | 7/14/2021 | 7/14/2021 |
58 | Etiwanda IC Bldg A | BCI IV Etiwanda IC LP | 7/14/2021 | 7/14/2021 |
59 | Etiwanda IC Bldg B | BCI IV Etiwanda IC LP | 7/14/2021 | 7/14/2021 |
60 | Etiwanda IC Bldg C | BCI IV Etiwanda IC LP | 7/14/2021 | 7/14/2021 |
61 | Valencia IC | BCI IV Valencia IC LP | 7/14/2021 | 7/14/2021 |
00 | Xxxx Xxxx Xxxx XX | XXX XX Xxxx Xxxx Xxxx XX LLC | 7/14/2021 | 7/14/2021 |
63 | Salt Lake City DC II | BCI IV Salt Lake City DC II LLC | 7/14/2021 | 7/14/2021 |
64 | Kent IP Bldg 3 | BCI IV Kent IP LLC | 7/14/2021 | 7/14/2021 |
65 | Kent IP Bldg 4 | BCI IV Kent IP LLC | 7/14/2021 | 7/14/2021 |
00 | Xxxxxx XX | XXX XX Xxxxxx XX LLC | 7/14/2021 | 7/14/2021 |
00 | Xxxx Xxxxxx XX II Xxxx 0 | XXX XX Xxxx Xxxxxx XX II LLC | 7/14/2021 | 7/14/2021 |
00 | Xxxx Xxxxxx XX II Xxxx 0 | XXX XX Xxxx Xxxxxx XX II LLC | 7/14/2021 | 7/14/2021 |
69 | Auburn 167 IC Bldg 1 | BCI IV Auburn 167 IC LLC | 7/14/2021 | 7/14/2021 |
70 | Auburn 167 IC Bldg 3B | BCI IV Auburn 167 IC LLC | 7/14/2021 | 7/14/2021 |
71 | Auburn 167 IC Bldg 4 | BCI IV Auburn 167 IC LLC | 7/14/2021 | 7/14/2021 |
72 | Tacoma CC | BCI IV Tacoma CC LLC | 7/14/2021 | 7/14/2021 |
73 | Stonewood Logistics Center | BCI IV Stonewood Logistics Center LLC | 7/16/2021 | 8/17/2021 |
74 | Colony Crossing I | BCI IV Colony Crossing LP | 8/17/2021 | 8/17/2021 |
75 | Colony Crossing II | BCI IV Colony Crossing LP | 8/17/2021 | 8/17/2021 |
# | Asset Name | Entity Name | Date Acquired / Completed | Date Added As Unencumbered Property |
|---|---|---|---|---|
00 | Xxxxxxx XX | XXX XX Xxxxxxx XX LLC | 9/17/2021 | 12/9/2021 |
77 | 355 Logistics Center I | BCI IV 355 Logistics Center LLC | 10/1/2021 | 12/9/2021 |
78 | 355 Logistics Center II | BCI IV 355 Logistics Center LLC | 10/1/2021 | 12/9/2021 |
79 | California Business Center I | BCI IV California Business Center LLC | 10/21/2021 | 12/9/2021 |
80 | California Business Center II | BCI IV California Business Center LLC | 10/21/2021 | 12/9/2021 |
81 | Commerce Farms Logistics Center | BCI IV Commerce Farms Logistics Center LLC | 8/25/2021 | 12/31/2021 |
82 | Monument BP I | BCI IV Monument BP LP | 11/17/2021 | 12/31/2021 |
83 | Monument BP II | BCI IV Monument BP LP | 11/17/2021 | 12/31/2021 |
84 | Air Commerce Center | BCI IV Air Commerce Center LLC | 11/17/2021 | 12/31/2021 |
85 | Aurora Corporate Center | BCI IV Aurora Corporate Center LLC | 11/17/2021 | 12/31/2021 |
86 | I-24 IC | BCI IV I-24 IC LLC | 11/17/2021 | 12/31/2021 |
87 | Xxxxxx XX | BCI IV Xxxxxx XX LLC | 11/17/2021 | 12/31/2021 |
88 | Xxxxxx Mill IC | BCI IV Xxxxxx Mill IC LLC | 11/18/2021 | 12/31/2021 |
89 | Greater Boston IC I | BCI IV Greater Boston IC I LLC | 11/22/2021 | 12/31/2021 |
90 | Greater Boston IC II | BCI IV Greater Boston IC II LLC | 11/22/2021 | 12/31/2021 |
91 | Hainesport Commerce Center | Hainesport Commerce Center Urban Renewal LLC | 12/21/2021 | 12/31/2021 |
92 | Xxxxxxxx XX I | BCI IV Xxxxxxxx XX LLC | 12/16/2021 | 12/31/2021 |
93 | Westlake XX XX | BCI IV Xxxxxxxx XX LLC | 12/16/2021 | 12/31/2021 |
94 | Xxxxxxxx XX III | BCI IV Xxxxxxxx XX LLC | 12/16/2021 | 12/31/2021 |
95 | Westlake XX XX | BCI IV Xxxxxxxx XX LLC | 12/16/2021 | 12/31/2021 |
96 | Southpark CC I | BCI IV Southpark CC I LLC | 12/16/2021 | 12/31/2021 |
97 | Southpark CC II | BCI IV Southpark CC II LLC | 12/16/2021 | 12/31/2021 |
00 | Xxxxxxxx Xxxxx XX I | BCI IV Windward Ridge BC LLC | 12/16/2021 | 12/31/2021 |
00 | Xxxxxxxx Xxxxx XX XX | BCI IV Windward Ridge BC LLC | 12/16/2021 | 12/31/2021 |
000 | Xxxxxxxx Xxxxx XX III | BCI IV Windward Ridge BC LLC | 12/16/2021 | 12/31/2021 |
000 | Xxxxxxxx Xxxxx XX XX | BCI IV Windward Ridge BC LLC | 12/16/2021 | 12/31/2021 |
SCHEDULE 3.14
SUBSIDIARIES
# | Subsidiary Guarantor | Direct Owner |
|---|---|---|
1 | BCI IV Medley IC LLC | AIREIT Operating Partnership LP |
2 | BCI IV Midway IC LLC | AIREIT Operating Partnership LP |
0 | XXX XX Xxxx Xxx XX LLC | AIREIT Operating Partnership LP |
4 | BCI IV 7A DC LLC | AIREIT Operating Partnership LP |
5 | BCI IV Airport IC LP | BCI IV Airport IC GP LLC / AIREIT Operating Partnership LP |
6 | BCI IV Addison DC II LLC | AIREIT Operating Partnership LP |
7 | BCI IV Xxxxx Trade Center LP | BCI IV Xxxxx Trade Center GP LLC / AIREIT Operating Partnership LP |
0 | XXX XX Xxxxxxxxxxxx XX LLC | AIREIT Operating Partnership LP |
9 | BCI IV Hebron Airpark Logistics Center LLC | AIREIT Operating Partnership LP |
10 | BCI IV Monte Vista IC LP | BCI IV Monte Vista IC GP LLC / AIREIT Operating Partnership LP |
00 | XXX XX Xxxxxx X Industrial Center LLC | AIREIT Operating Partnership LP |
12 | BCI IV King of Prussia Industrial Center LLC | AIREIT Operating Partnership LP |
00 | XXX XX Xxxxxx XX LLC | AIREIT Operating Partnership LP |
00 | XXX XX Xxxxxxxxx Xxxxxxx XX II LLC | BCI IV BR LLC |
00 | XXX XX Xxxxxxxx XX LP | BCI IV Marigold DC GP LLC / AIREIT Operating Partnership LP |
00 | XXX XX Xxxxxxx Xxxx XX LLC | AIREIT Operating Partnership LP |
17 | BCI IV Norcross Industrial Center LLC | AIREIT Operating Partnership LP |
18 | BCI IV 7A DC II LLC | AIREIT Operating Partnership LP |
19 | BCI IV Carlstadt IC LLC | AIREIT Operating Partnership LP |
20 | BCI IV Lima DC LLC | AIREIT Operating Partnership LP |
21 | BCI IV Eaglepoint LC LLC | AIREIT Operating Partnership LP |
22 | BCI IV Intermodal Logistics Center LP | BCI IV Intermodal Logistics Center GP LLC / AIREIT Operating Partnership LP |
23 | BCI IV Airpark International Logistics Center LLC | AIREIT Operating Partnership LP |
# | Subsidiary Guarantor | Direct Owner |
|---|---|---|
24 | BCI IV Miraloma IC LP | BCI IV Miraloma IC GP LLC / AIREIT Operating Partnership LP |
25 | BCI IV Xxxxxx Industrial Center LP | BCI IV Xxxxxx Industrial Center GP LLC / AIREIT Operating Partnership LP |
26 | BCI IV Pennsy Logistics Center LLC | AIREIT Operating Partnership LP |
00 | XXX XX Xxxxxx Xxxxxxxxx XX LP | BCI IV Rancho Cucamonga BC GP LLC / AIREIT Operating Partnership LP |
28 | BCI IV Richmond Logistics Center LLC | AIREIT Operating Partnership LP |
29 | BCI IV Silicon Valley IC LLC | AIREIT Operating Partnership LP |
00 | XXX XX Xxxxxxxx XX LLC | BCI IV Brodhead DC Holdco LLC |
00 | XXX XX XxXxxxx XX LP | BCI IV La Porte DC GP LLC |
32 | BCI IV Palm Beach CC LLC | AIREIT Portfolio Real Estate Holdco LLC |
33 | BCI IV Pompano IC LLC | AIREIT Portfolio Real Estate Holdco LLC |
00 | XXX XX Xxxxxx XX LLC | AIREIT Portfolio Real Estate Holdco LLC |
00 | XXX XX Xxxx 000 XX LLC | AIREIT Portfolio Real Estate Holdco LLC |
36 | BCI IV Trade Zone IC LLC | AIREIT Portfolio Real Estate Holdco LLC |
37 | BCI IV Totowa CC LLC | AIREIT Portfolio Real Estate Holdco LLC |
38 | BCI IV Xxxxxxxx XX LLC | AIREIT Portfolio Real Estate Holdco LLC |
00 | XXX XX Xxxx Xxx XX II LLC | BCI IV Iron Run DC II Holdco LLC / BCI IV Iron Run DC II Holdco II LLC |
00 | XXX XX Xxxxxxxxxxxxx XX LLC | BCI IV Mechanicsburg DC Holdco II LLC / BCI IV Mechanicsburg DC Holdco LLC |
41 | BCI IV Drew Court CC LLC | BCI IV Drew Court CC Holdco LLC / BCI IV Drew Court CC Holdco II LLC |
42 | BCI IV Chicago IC LLC | AIREIT Portfolio Real Estate Holdco LLC |
# | Subsidiary Guarantor | Direct Owner |
|---|---|---|
43 | BCI IV Upland DC LLC | AIREIT Portfolio Real Estate Holdco LLC |
00 | XXX XX Xxxxxxxx XX II LP | BCI IV Stockton DC II GP LLC / AIREIT Portfolio Real Estate Holdco LLC |
45 | BCI IV Stockton Industrial Center LP | BCI IV Stockton Industrial Center GP LLC / AIREIT Portfolio Real Estate Holdco LLC |
46 | BCI IV Tracy DC LP | BCI IV Tracy DC GP LLC / AIREIT Portfolio Real Estate Holdco LLC |
47 | BCI IV Xxxxx XX XX LP | BCI IV Xxxxx DC II GP LLC / AIREIT Portfolio Real Estate Holdco LLC |
48 | BCI IV Etiwanda IC LP | BCI IV Etiwanda IC GP LLC / AIREIT Portfolio Real Estate Holdco LLC |
49 | BCI IV Valencia IC LP | BCI IV Valencia IC GP LLC / AIREIT Portfolio Real Estate Holdco LLC |
00 | XXX XX Xxxx Xxxx Xxxx XX LLC | AIREIT Portfolio Real Estate Holdco LLC |
00 | XXX XX Xxxx Xxxx Xxxx XX II LLC | AIREIT Portfolio Real Estate Holdco LLC |
52 | BCI IV Kent IP LLC | AIREIT Portfolio Real Estate Holdco LLC |
00 | XXX XX Xxxxxx XX LLC | AIREIT Portfolio Real Estate Holdco LLC |
00 | XXX XX Xxxx Xxxxxx XX II LLC | AIREIT Portfolio Real Estate Holdco LLC |
55 | BCI IV Auburn 167 IC LLC | AIREIT Portfolio Real Estate Holdco LLC |
56 | BCI IV Tacoma CC LLC | AIREIT Portfolio Real Estate Holdco LLC |
57 | BCI IV Stonewood Logistics Center LLC | BCI IV Stonewood LC Holdco LLC |
58 | BCI IV Colony Crossing LP | BCI IV Colony Crossing GP LLC / AIREIT Operating Partnership LP |
00 | XXX XX Xxxxxxx XX LLC | AIREIT Operating Partnership LP |
60 | BCI IV 355 Logistics Center LLC | AIREIT Operating Partnership LP |
61 | BCI IV California Business Center LLC | AIREIT Operating Partnership LP |
62 | BCI IV Commerce Farms Logistics Center LLC | AIREIT Operating Partnership LP |
# | Subsidiary Guarantor | Direct Owner |
|---|---|---|
63 | BCI IV Monument BP LP | BCI IV Monument BP GP LLC / AIREIT Operating Partnership LP |
64 | BCI IV Air Commerce Center LLC | AIREIT Operating Partnership LP |
65 | BCI IV Aurora Corporate Center LLC | AIREIT Operating Partnership LP |
66 | BCI IV I-24 IC LLC | AIREIT Operating Partnership LP |
67 | BCI IV Xxxxxx XX LLC | AIREIT Operating Partnership LP |
68 | BCI IV Xxxxxx Mill IC LLC | AIREIT Operating Partnership LP |
00 | XXX XX Xxxxxxx Xxxxxx IC I LLC | AIREIT Operating Partnership LP |
00 | XXX XX Xxxxxxx Xxxxxx IC II LLC | AIREIT Operating Partnership LP |
71 | Hainesport Commerce Center Urban Renewal LLC | BCI IV Hainesport CC LLC |
72 | BCI IV Xxxxxxxx XX LLC | AIREIT Operating Partnership LP |
73 | BCI IV Southpark CC I LLC | AIREIT Operating Partnership LP |
74 | BCI IV Southpark CC II LLC | AIREIT Operating Partnership LP |
00 | XXX XX Xxxxxxxx Xxxxx XX LLC | AIREIT Operating Partnership LP |
SCHEDULE 6.01
RESTRICTIONS AND CONDITIONS
NONE
SCHEDULE 6.07
AGREEMENTS WITH AFFILIATES
NAI-1527477492v10
