FIRST AMENDMENT TO THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
Exhibit 10.29
FIRST AMENDMENT TO
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
This FIRST AMENDMENT TO THIRD AMENDED AND RESTATED REVOLVING CREDIT (this “Amendment”) dated as of November 21, 2022, by and among AGREE LIMITED PARTNERSHIP, a Delaware limited partnership (the “Borrower”), AGREE REALTY CORPORATION, a Maryland corporation (the “Parent”), each of the Subsidiary Guarantors party hereto (together with the Parent, the “Guarantors”) each of the Lenders party hereto (the “Lenders”) and PNC BANK, NATIONAL ASSOCIATION, as Administrative Agent (the “Administrative Agent”).
WHEREAS, the Borrower, the Parent, the Lenders, the Administrative Agent and certain other parties have entered into that certain Third Amended and Restated Revolving Credit Agreement dated as of December 15, 2021 (as in effect immediately prior to the effectiveness of this Amendment, the “Existing Credit Agreement”); and
WHEREAS, the Borrower, the Parent, the Lenders and the Administrative Agent desire to amend certain provisions of the Credit Agreement on the terms and conditions contained herein.
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:
Section 1. Specific Amendments to Existing Credit Agreement. Upon the effectiveness of this Amendment, the parties hereto agree that the Credit Agreement is hereby amended as set forth below:
For purposes of greater certainty, the parties hereto acknowledge and agree that any Eurodollar Rate Loans (as defined in the Existing Credit Agreement) outstanding as of the date hereof shall be converted to Term SOFR Loans on the date hereof and shall remain outstanding as Term SOFR Loans until the end of the respective Interest Periods relating thereto. The Lenders party hereto acknowledge and agree that any payments due under Section 3.05 of the Existing Credit Agreement as a result of the previous sentence are waived in all respects.
Section 2. Conditions Precedent. The effectiveness of this Amendment is subject to receipt by the Administrative Agent of each of the following in form and substance satisfactory to the Administrative Agent:
(a)a counterpart of this Amendment duly executed by the Borrower, the Parent, the Guarantors, the Administrative Agent and each of the Lenders party hereto;
(b)evidence that all fees, expenses and reimbursement amounts due and payable to the Administrative Agent and the Arrangers, including without limitation, the reasonable fees and expenses of counsel to the Administrative Agent, have been paid; and
(c)such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request.
Section 3. Representations. The Borrower represents and warrants to the Administrative Agent and the Lenders that:
(a)Authorization; No Contravention. The execution and delivery of the Amendment by each Loan Party and the performance by each Loan Party of this Amendment and the Existing Credit Agreement, as amended by this Amendment (as so amended, the “Amended Credit Agreement”), have been duly authorized by all necessary corporate or other organizational action, and do not and will not (a) contravene the terms of each such Person’s Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (i) any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (c) violate any Law.
(b)Governmental Authorization; Other Consents. No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution and delivery of this Amendment or performance by, or enforcement against, any Loan Party of this Amendment or the Amended Credit Agreement.
(c)Binding Effect. This Amendment has been duly executed and delivered by each Loan Party that is a party hereto. Each of this Amendment and the Amended Credit Agreement constitutes a legal, valid and binding obligation of each Loan Party a party thereto, enforceable against such Loan Party in accordance with its terms.
(d)No Default. No Default has occurred and is continuing as of the date hereof nor will exist immediately after giving effect to this Amendment.
(e)Guarantors. As of the date hereof, each Subsidiary required to be a Guarantor under the Amended Credit Agreement has become a Guarantor.
Section 4. Reaffirmation of Representations. The Borrower hereby repeats and reaffirms all representations and warranties made or deemed made by the Borrower to the Administrative Agent and the Lenders in the Amended Credit Agreement and the other Loan Documents on and as of the date hereof with the same force and effect as if such representations and warranties were set forth in this Amendment in full and such representations and warranties are true and correct in all material respects on and as of the date hereof immediately after giving effect to this Amendment except to the extent that such representations and warranties specifically refer to an earlier date, in which case they were true and correct as of such earlier date.
Section 5. Reaffirmation by Guarantors. Each of the Guarantors hereby reaffirms its continuing obligations to the Administrative Agent, the L/C Issuers, the Swing Line Lenders and the Lenders under the Guaranty and agrees that the transactions contemplated by this Amendment shall not in any way affect the validity and enforceability of the Guaranty or reduce, impair or discharge the obligations of such Guarantor thereunder.
Section 6. Certain References. Each reference to the Existing Credit Agreement in any of the Loan Documents shall be deemed to be a reference to the Amended Credit Agreement. This Amendment is a Loan Document.
Section 7. Costs and Expenses. The Borrower shall reimburse the Administrative Agent for all reasonable out-of-pocket expenses (including attorneys’ fees) incurred by the Administrative Agent in connection with the preparation, negotiation and execution of this Amendment and the other agreements and documents executed and delivered in connection herewith.
Section 8. Benefits. This Amendment shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
Section 9. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 10. Effect; Ratification. Except as expressly herein amended, the terms and conditions of the Existing Credit Agreement and the other Loan Documents remain in full force and effect. The amendments contained herein shall be deemed to have prospective application only. The Amended Credit Agreement is hereby ratified and confirmed in all respects. Nothing in this Amendment shall limit, impair or constitute a waiver of the rights, powers or remedies available to the Administrative Agent, the L/C Issuers, the Swing Line Lenders or the Lenders under the Amended Credit Agreement or any other Loan Document.
Section 11. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed to be an original and shall be binding upon all parties, their successors and assigns.
Section 12. Definitions. All capitalized terms not otherwise defined herein are used herein with the respective definitions given them in the Amended Credit Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to Third Amended and Restated Revolving Credit Agreement to be executed as of the date first above written.
BORROWER:AGREE LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Agree Realty Corporation,
a Maryland corporation, its sole general partner
By: _/s/ Xxxx X. Xxxxx___________________________
Name: Xxxx X. Xxxxx
Title: President and Chief Executive Officer
PARENT:AGREE REALTY CORPORATION,
a Maryland corporation
By: _/s/ Xxxx X. Xxxxx___________________________
Name: Xxxx X. Xxxxx
Title: President and Chief Executive Officer
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SUBSIDIARY GUARANTORS:
Agree 117 Mission, LLC,
a Michigan limited liability company
Agree 2016, LLC,
a Delaware limited liability company
Agree Central, LLC,
a Delaware limited liability company
Agree Chapel Hill NC, LLC,
a Delaware limited liability company
Agree Columbia SC, LLC,
a Delaware limited liability company
Agree Convenience No. 1, LLC,
a Delaware limited liability company
Agree CW, LLC,
a Delaware limited liability company
Agree DT Jacksonville NC, LLC,
a Delaware limited liability company
Agree Farmington NM, LLC,
a Delaware limited liability company
Agree Grandview Heights OH, LLC,
a Delaware limited liability company
Agree Greenwich CT, LLC,
a Delaware limited liability company
Agree Lebanon NH, LLC,
a Delaware limited liability company
Agree MCW, LLC,
a Delaware limited liability company
Agree Mena AR, LLC,
a Delaware limited liability company
By: Agree Limited Partnership,
a Delaware limited partnership
Its: Sole Member
By: Agree Realty Corporation,
A Maryland corporation
Its: Sole General Partner
By: _/s/ Xxxx X. Xxxxx______________
Name: Xxxx X. Xxxxx
Title: President and Chief Executive Officer
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Agree Onaway MI, LLC,
a Delaware limited liability company
Agree Orange CT, LLC,
a Delaware limited liability company
Agree Oxford Commons AL, LLC,
a Delaware limited liability company
Agree Paterson NJ, LLC,
a Delaware limited liability company
Agree SB, LLC,
a Delaware limited liability company
Agree Secaucus NJ, LLC,
a Delaware limited liability company
Agree Shelf ES PA, LLC,
a Delaware limited liability company
Agree Shelf PA, LLC,
a Delaware limited liability company
Agree Southfield, LLC,
a Michigan limited liability company
Agree St Petersburg, LLC,
a Florida limited liability company
Agree Stores, LLC,
a Delaware limited liability company
Agree TK, LLC,
a Delaware limited liability company
Lunacorp, LLC,
a Delaware limited liability company
Mt. Pleasant Shopping Center, L.L.C.,
a Michigan limited liability company
Pachyderm Chattanooga TN, LLC,
a Delaware limited liability company
Pachyderm Marietta GA, LLC,
a Delaware limited liability company
Pachyderm Myrtle Beach SC, LLC,
a Delaware limited liability company
By: Agree Limited Partnership,
a Delaware limited partnership
Its: Sole Member
By: Agree Realty Corporation,
A Maryland corporation
Its: Sole General Partner
By: _/s/ Xxxx X. Xxxxx_______________
Name: Xxxx X. Xxxxx
Title: President and Chief Executive Officer
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Pachyderm Philadelphia PA, LLC,
a Delaware limited liability company
Pachyderm Properties, LLC,
a Delaware limited liability company
Pachyderm Riverdale GA, LLC,
a Delaware limited liability company
Pachyderm Xxxxx Park MN, LLC,
a Delaware limited liability company
Paint PA, LLC,
a Delaware limited liability company
Safari Properties II, LLC,
a Delaware limited liability company
By: Agree Limited Partnership,
a Delaware limited partnership
Its: Sole Member
By: Agree Realty Corporation,
A Maryland corporation
Its: Sole General Partner
By: _/s/ Xxxx X. Xxxxx________________
Name: Xxxx X. Xxxxx
Title: President and Chief Executive Officer
AGREE NJ, LLC,
a Delaware limited liability company
By: Agree Limited Partnership,
a Delaware limited partnership
Its: Sole Member
By: Agree Realty Corporation,
A Maryland corporation
Its: Sole General Partner
By: _/s/ Xxxx X. Xxxxx________________
Name: Xxxx X. Xxxxx
Title: President and Chief Executive Officer
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PNC Bank, National Association,
as Administrative Agent, an L/C Issuer, a Swing Line Lender and as a Lender
By: _/s/ Xxxxx X. Xxxxxxxxxx__________________
Title: SVP
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CITIBANK, N.A., as an L/C Issuer, a Swing Line Lender and as a Lender
By: _/s/ Xxxxxxxxxxx X. Xxxxxx______________
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Authorized Signatory
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XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as an L/C Issuer, a Swing Line Lender and as a Lender
By: _/s/ Xxxxxxx Xxxx____________________
Name: Xxxxxxx Xxxx
Title: Director
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CAPITAL ONE, NATIONAL ASSOCIATIOn,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxxxx_________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Authorized Signatory
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REGIONS BANK,
as a Lender
By:_/s/ Xxxxx Xxxx_____________________
Name: Xxxxx Xxxx
Title: Senior Vice President
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U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By:_/s/ Xxxxxxxxxx Xxxx__________________
Name: Xxxxxxxxxx Xxxx
Title: Assistant Vice President
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BANK OF AMERICA, N.A.,
as a Lender
By:_/s/ Xxxxxx Xxxxx__________________
Name: Xxxxxx Xxxxx
Title: Vice President
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CITIZENS BANK, N.A.,
as a Lender
By:_/s/ Xxxxx Xxxxxxx__________________
Name: Xxxxx Xxxxxxx
Title: SVP
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JPMORGAN CHASE BANK, N.A.,
as a Lender
By:_/s/ Xxxxxx Xxxxxxx________________
Name: Xxxxxx Xxxxxxx
Title: Authorized Officer
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MIZUHO BANK, LTD.,
as a Lender
By:_/s/ Xxxxx XxXxxxxxxxx_______________
Name: Xxxxx XxXxxxxxxxx
Title: Executive Director
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XXXXXX XXXXXXX BANK, N.A.,
as a Lender
By:_/s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Authorized Signatory
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XXXXXXX XXXXX BANK,
as a Lender
By:_/s/ Xxxx Xxxxxx________________
Name: Xxxx Xxxxxx
Title: Vice President
[Signatures Continued on Next Page]
STIFEL BANK & TRUST,
as a Lender
By:_/s/ Xxxxxx X. Xxxxxx, Xx.________________
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Senior Vice President
ANNEX A
Amended Credit Agreement
[See attached]
EXHIBIT A
[See attached]
EXECUTION VERSION
(Conformed for First Amendment dated November 21, 2022)
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
Dated as of December 15, 2021 among
AGREE REALTY CORPORATION,
as the Parent,
AGREE LIMITED PARTNERSHIP,
as the Borrower,
PNC BANK, NATIONAL ASSOCIATION,
as Administrative Agent, and
THE LENDERS PARTY HERETO
PNC CAPITAL MARKETS LLC, CITIBANK, N.A., and
XXXXX FARGO SECURITIES, LLC, as
Joint Book Managers,
PNC CAPITAL MARKETS LLC, CITIBANK, N.A.,
XXXXX FARGO SECURITIES, LLC, CAPITAL ONE, NATIONAL ASSOCIATION, REGIONS CAPITAL MARKETS, and
U.S. BANK NATIONAL ASSOCIATION, as
Joint Lead Arrangers,
CITIBANK, N.A., and
XXXXX FARGO SECURITIES, LLC, as
Co-Syndication Agents,
CAPITAL ONE, NATIONAL ASSOCIATION, REGIONS BANK, and
U.S. BANK NATIONAL ASSOCIATION, as
Co-Documentation Agents, and
PNC CAPITAL MARKETS LLC, as
Sustainability Coordinator
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS 1
| 1.01 | Defined Terms1 |
| 1.02 | Other Interpretive Provisions36 |
| 1.03 | Accounting Terms.36 |
| 1.04 | Rounding37 |
| 1.05 | Times of Day37 |
| 1.06 | Letter of Credit Amounts37 |
| 1.07 | Classifications of Loans and Borrowings37 |
| 1.08 | Divisions37 |
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS 38
| 2.01 | Committed Loans38 |
| 2.02 | Borrowings, Conversions and Continuations of Committed Loans38 |
| 2.03 | [Intentionally Omitted]39 |
| 2.04 | Letters of Credit.39 |
| 2.05 | Swing Line Loans47 |
| 2.06 | Prepayments49 |
| 2.07 | Termination or Reduction of Commitments50 |
| 2.08 | Repayment of Loans50 |
| 2.09 | Interest50 |
| 2.10 | Fees51 |
| 2.11 | Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate52 |
| 2.12 | Evidence of Debt52 |
| 2.13 | Payments Generally; Administrative Agent’s Clawback53 |
| 2.14 | Sharing of Payments by Lenders54 |
| 2.15 | Extension of Maturity Date55 |
| 2.16 | Increase in Commitments56 |
| 2.17 | Cash Collateral57 |
| 2.18 | Defaulting Lenders58 |
| 2.19 | Reallocation on the Closing Date59 |
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY 60
| 3.01 | Taxes.60 |
| 3.02 | Illegality; Inability to Determine Rates63 |
| 3.03 | Benchmark Replacement Setting64 |
| 3.04 | Increased Costs72 |
| 3.05 | Compensation for Losses73 |
| 3.06 | Mitigation Obligations; Replacement of Lenders74 |
| 3.07 | Survival74 |
ARTICLE IV. [INTENTIONALLY OMITTED] 74
ARTICLE V. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS 74
| 5.01 | Conditions of Initial Credit Extension74 |
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| 5.02 | Conditions to all Credit Extensions76 |
ARTICLE VI. REPRESENTATIONS AND WARRANTIES 77
| 6.01 | Existence, Qualification and Power77 |
| 6.02 | Authorization; No Contravention77 |
| 6.03 | Governmental Authorization; Other Consents77 |
| 6.04 | Binding Effect77 |
| 6.05 | Financial Statements; No Material Adverse Effect77 |
| 6.06 | Litigation78 |
| 6.07 | No Default78 |
| 6.08 | Ownership of Property; Liens78 |
| 6.09 | Environmental Compliance78 |
| 6.10 | Insurance78 |
| 6.11 | Taxes79 |
| 6.12 | ERISA Compliance79 |
| 6.13 | Subsidiaries; Equity Interests80 |
| 6.14 | Margin Regulations; Investment Company Act80 |
| 6.15 | Disclosure80 |
| 6.16 | Compliance with Laws80 |
| 6.17 | Taxpayer Identification Number; Beneficial Ownership81 |
| 6.18 | Anti-Money Laundering/International Trade Law Compliance81 |
| 6.19 | Unencumbered Pool Properties81 |
ARTICLE VII. AFFIRMATIVE COVENANTS 81
| 7.01 | Financial Statements81 |
| 7.02 | Certificates; Other Information82 |
| 7.03 | Notices84 |
| 7.04 | Payment of Obligations84 |
| 7.05 | Preservation of Existence, Etc84 |
| 7.06 | Maintenance of Properties84 |
| 7.07 | Maintenance of Insurance85 |
| 7.08 | Compliance with Laws85 |
| 7.09 | Books and Records85 |
| 7.10 | Inspection Rights85 |
| 7.11 | Use of Proceeds85 |
| 7.12 | Unencumbered Pool Properties85 |
| 7.13 | Subsidiary Guarantor Organizational Documents86 |
| 7.14 | Additional Guarantors; Release of Guarantors86 |
| 7.15 | Environmental Matters87 |
| 7.16 | REIT Status; New York Stock Exchange Listing87 |
| 7.17 | Anti-Money Laundering/International Trade Law Compliance87 |
ARTICLE VIII. NEGATIVE COVENANTS 87
| 8.01 | [Intentionally Omitted]87 |
| 8.02 | [Intentionally Omitted]87 |
| 8.03 | Fundamental Changes87 |
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| 8.04 | Dispositions88 |
| 8.05 | Restricted Payments89 |
| 8.06 | Change in Nature of Business89 |
| 8.07 | Transactions with Affiliates89 |
| 8.08 | Burdensome Agreements89 |
| 8.09 | Use of Proceeds89 |
| 8.10 | [Intentionally Omitted]89 |
| 8.11 | [Intentionally Omitted]89 |
| 8.12 | [Intentionally Omitted]89 |
| 8.13 | Negative Pledge89 |
| 8.14 | Financial Covenants89 |
ARTICLE IX. EVENTS OF DEFAULT AND REMEDIES
90
| 9.01 | Events of Default90 |
| 9.02 | Remedies Upon Event of Default92 |
| 9.03 | Application of Funds93 |
ARTICLE X. ADMINISTRATIVE AGENT 94
| 10.01 | Appointment and Authority94 |
| 10.02 | Rights as a Lender94 |
| 10.03 | Exculpatory Provisions94 |
| 10.04 | Reliance by Administrative Agent96 |
| 10.05 | Delegation of Duties96 |
| 10.06 | Resignation of Administrative Agent96 |
| 10.07 | Non-Reliance on Administrative Agent and Other Lenders97 |
| 10.08 | No Other Duties, Etc97 |
| 10.09 | Administrative Agent May File Proofs of Claim97 |
| 10.10 | Collateral and Guaranty Matters98 |
| 10.11 | No Reliance on Administrative Agent’s Customer Identification Program98 |
| 10.12 | Consents and Approvals99 |
| 10.13 | Erroneous Payments99 |
| 10.14 | LIBORSOFR Notification101 |
ARTICLE XI. MISCELLANEOUS 101
| 11.01 | Amendments, Etc101 |
| 11.02 | Notices; Effectiveness; Electronic Communication103 |
| 11.03 | No Waiver; Cumulative Remedies; Enforcement105 |
| 11.04 | Expenses; Indemnity; Damage Waiver105 |
| 11.05 | Payments Set Aside107 |
| 11.06 | Successors and Assigns107 |
| 11.07 | Treatment of Certain Information; Confidentiality111 |
| 11.08 | Right of Setoff112 |
| 11.09 | Interest Rate Limitation112 |
| 11.10 | Counterparts; Integration; Effectiveness112 |
| 11.11 | Survival of Representations and Warranties113 |
| 11.12 | Severability113 |
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| 11.13 | Replacement of Lenders113 |
| 11.14 | Governing Law; Jurisdiction; Etc114 |
| 11.15 | Waiver of Jury Trial114 |
| 11.16 | No Advisory or Fiduciary Responsibility115 |
| 11.17 | Electronic Execution of Assignments and Certain Other Documents115 |
| 11.18 | USA PATRIOT Act115 |
| 11.19 | ENTIRE AGREEMENT116 |
| 11.20 | Effect on Existing Credit Agreement116 |
| 11.21 | Acknowledgement and Consent to Bail-In of Affected Financial Institutions116 |
| 11.22 | Acknowledgement Regarding Any Supported QFCs117 |
iv
SCHEDULES
1.01(A)Commitments 1.01(B)Guarantors
| 6.05 | Material Indebtedness and Other Liabilities |
| 6.06 | Litigation |
| 6.08 | Existing Liens |
| 6.09 | Environmental Matters |
6.13Subsidiaries; Other Equity Investments; Equity Interests
6.17Loan Parties’ Taxpayer Identification Numbers
6.19Initial Unencumbered Pool Properties
11.02Administrative Agent’s Office; Certain Addresses for Notices
EXHIBITS
Form of
| A | Committed Loan Notice |
C-2Swing Line Note
| D | Compliance Certificate |
| E | Assignment and Assumption |
| F | Unencumbered Pool Report |
| G | Certificate of Beneficial Ownership |
| H | Sustainability Notice |
i
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
This THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this
“Agreement”) is entered into as of December 15, 2021 by and among AGREE REALTY CORPORATION, a Maryland corporation (the “Parent”), AGREE LIMITED PARTNERSHIP, a Delaware limited partnership (the “Borrower”), each of the Loan Parties from time to time party hereto, each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), PNC BANK, NATIONAL ASSOCIATION, as Administrative Agent, a Swing Line Lender and an L/C Issuer, and CITIBANK, N.A. and XXXXX FARGO BANK, NATIONAL ASSOCIATION, each as a
Swing Line Lender and an L/C Issuer, with PNC CAPITAL MARKETS LLC, CITIBANK, N.A. and XXXXX FARGO SECURITIES, LLC, as Joint Book Managers, PNC CAPITAL MARKETS LLC, CITIBANK, N.A., XXXXX FARGO SECURITIES, LLC, CAPITAL ONE, NATIONAL ASSOCIATION, REGIONS CAPITAL MARKETS and U.S. BANK NATIONAL ASSOCIATION, as
Joint Lead Arrangers, CITIBANK, N.A. and XXXXX FARGO SECURITIES, LLC, as Co-Syndication Agents, CAPITAL ONE, NATIONAL ASSOCIATION, REGIONS BANK and U.S. BANK NATIONAL
ASSOCIATION, as Co-Documentation Agents, and PNC CAPITAL MARKETS LLC, as Sustainability Coordinator.
Certain of the Lenders and other financial institutions have made available to the Borrower (i) a revolving facility in the amount of $500,000,000, (ii) a term loan facility in the amount of $35,000,000 and (iii) a term loan facility in the amount of $65,000,000, in each case on the terms and conditions contained in that certain Second Amended and Restated Revolving Credit and Term Loan Agreement dated as of December 5, 2019 (as amended and in effect immediately prior to the date hereof, the “Existing Credit Agreement”) by and among the Parent, the Borrower, such Lenders, certain other financial institutions, and PNC Bank, National Association, as Administrative Agent, and the other parties thereto; and
The Borrower has requested that the Lenders amend and restate the Existing Credit Agreement to make available to the Borrower a revolving facility in an aggregate initial amount of $1,000,000,000 on the terms and conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant, and agree that the Existing Credit Agreement is amended and restated in its entirety, as follows:
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
“Adjusted Daily Simple SOFR Rate” means, for purposes of any calculation, the rate per annum equal to the greater of (a) the sum of (i) Daily Simple SOFR for such calculation plus (ii) the SOFR Adjustment and (b) the SOFR Floor.
“Adjusted EBITDA” means EBITDA for the Consolidated Group for the most recently ended period of four fiscal quarters minus the aggregate Annual Capital Expenditure Adjustment.
1
“Adjusted Term SOFR Rate” means, for purposes of any calculation, the rate per annum equal to the greater of (a) the sum of (i) the Term SOFR Rate for such calculation plus (ii) the SOFR Adjustment and (b) the SOFR Floor.
“Administrative Agent” means PNC in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.
“Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account set forth on Schedule 11.02, or such other address or account as the Administrative Agent may from time to time notify the Borrower and the Lenders.
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.
“Affected Eurodollar Rate Loan” has the meaning specified in Section 3.02(a).
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affected SOFR Loan” has the meaning specified in Section 3.02(a).
“Affiliate” means, with respect to any 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.
“Agreement” has the meaning specified in the introductory paragraph hereto.
“Annual Capital Expenditure Adjustment” means for all Properties, an amount equal to (i) $0.10 multiplied by (ii) the aggregate net rentable area (determined on a square feet basis) of all Properties multiplied by (iii) the number of days in such period divided by (iv) 365.
“Anti-Terrorism Laws” means any Laws concerning or relating to terrorism, Sanctions and embargoes, import/export licensing, money laundering, bribery or corruption, and any regulation, order, or directive promulgated, issued or enforced pursuant to such Laws (including, without limitation, the United States Foreign Corrupt Practices Act of 1977 and the rules and regulations thereunder and the
U.K. Xxxxxxx Xxx 0000 and the rules and regulations thereunder), all as amended, supplemented or replaced from time to time.
“Applicable Facility Fee” means the percentage set forth in the table below corresponding to the Pricing Level at which the “Applicable Rate” is determined in accordance with the definition thereof:
Pricing Level | Facility Fee |
1 | 0.125% |
2 | 0.150% |
3 | 0.200% |
4 | 0.250% |
5 | 0.300% |
2
Any change in the applicable Pricing Level at which the Applicable Rate is determined shall result in a corresponding and simultaneous change in the Applicable Facility Fee. The provisions of this definition shall be subject to Section 2.11(b).
“Applicable Maturity Date” has the meaning specified in Section 2.15.
“Applicable Percentage” means with respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of (a) the aggregate Commitments represented by (b) such Xxxxxx’s Commitment, subject to adjustment as provided in Section 2.18. If the Commitments and the obligation of the L/C Issuers to make L/C Credit Extensions have been terminated pursuant to Section 9.02 or if the Commitments have expired, then the Applicable Percentage of each Lender shall be the percentage (carried out to the ninth decimal place) of the aggregate outstanding principal amount of all Committed Loans represented by the aggregate outstanding principal amount of such Xxxxxx’s Committed Loans.
“Applicable Rate” means:
Pricing Level | Credit Rating | Applicable Rate for Eurodollar RateSOFR Loans/Letter of Credit Fees | Applicable Rate for Base Rate Loans |
1 | ≥ A-/A3 | 0.725% | 0.00% |
2 | BBB+/Baa1 | 0.775% | 0.00% |
3 | BBB/Baa2 | 0.850% | 0.00% |
4 | BBB-/Baa3 | 1.050% | 0.050% |
5 | <BBB-/Baa3/Un rated | 1.400% | 0.400% |
; provided, notwithstanding the Credit Rating set forth in foregoing table, if (i) the Leverage Ratio as of the last day of the most recently ending fiscal quarter of the Borrower as set forth in the corresponding Compliance Certificate delivered pursuant to Section 7.02(a) is less than 37.5% or, for only one fiscal quarter during the term of this Agreement, greater than 37.5% but less than 42.5%, and (ii) the Parent’s or Borrower’s, as applicable, Credit Rating is not lower than BBB/Baa2, the Applicable Rate shall be set at Pricing Level 2. Any increase or decrease in the Applicable Rate with respect to Revolving Loans resulting from a change in the Leverage Ratio in accordance with the foregoing proviso shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 7.02(a); provided, that if a Compliance Certificate is not delivered when due in accordance with such Section, then the Pricing Level corresponding to the Credit Rating then in effect shall apply as of the fifth Business Day after the date on which such Compliance Certificate was required to have been delivered and shall remain in effect until the date on which such Compliance Certificate is delivered.
During any period that the Parent or Borrower has received Credit Ratings from each of S&P, Fitch and Moody’s that are not equivalent and the difference between the highest and lowest of such Credit Ratings is (i) one Pricing Level, then the Applicable Rate shall be determined based on the highest of such Credit Ratings or (ii) two or more Pricing Levels, then the Applicable Rate shall be determined based on the average of the two highest Credit Ratings (unless the average is not a recognized Pricing Level, in which
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case the Applicable Rate shall be determined based on the second highest Credit Rating). During any period that the Parent or Borrower has received only two Credit Ratings from any of S&P, Fitch and Moody’s that are not equivalent and the difference between such Credit Ratings is (x) one Pricing Level, then the Applicable Rate shall be determined based on the higher of such Credit Ratings or (y) two or more Pricing Levels, then the Applicable Rate shall be determined based on the Pricing Level that would be applicable if the rating was one higher than the lower of the two applicable Credit Ratings received. During any period that the Parent or Borrower has only received a Credit Rating from Moody’s or S&P, then the Applicable Rate shall be based upon such Credit Rating. During any period that the Parent or Borrower has (A) not received a Credit Rating from any Rating Agency or (B) only received a Credit Rating from a Rating Agency that is neither S&P nor Moody’s, then the Applicable Rate shall be determined based on Pricing Level 5 in the table above. The provisions of this definition shall be subject to Section 2.11(b). Any adjustment to the Applicable Rate made in accordance with the foregoing sentence resulting from any change in the applicable Credit Rating(s) shall be effective as of the date of such change in such Credit Rating(s).
Notwithstanding the foregoing, if as of any Measurement Date (i) the Borrower is Sustainability Metric Compliant (Tier 1) for the most recent Test Period prior to such Measurement Date, then from and after the tenth (10th) Business Day following the date the Borrower provides to the Administrative Agent a notice in the form of Exhibit H (the “Sustainability Notice”) that the Borrower is Sustainability Metric Compliant (Tier 1) as of such Measurement Date, the Applicable Rate shall decrease by 0.01% (but not to below zero percent per annum) from the Applicable Rate that would otherwise be applicable, and (ii) the Borrower is Sustainability Metric Compliant (Tier 2) for the most recent Test Period prior to such Measurement Date, then from and after the tenth (10th) Business Day following the date the Borrower provides to the Administrative Agent a Sustainability Notice that the Borrower is Sustainability Metric Compliant (Tier 2) as of such Measurement Date, the Applicable Rate shall decrease by 0.025% (but not to below zero percent per annum and without duplication of any reduction in the foregoing clause (i)) from the Applicable Rate that would otherwise be applicable; provided that (x) at no time shall the reduction in the Applicable Rate resulting from the delivery of the Sustainability Notice exceed (1) with respect to Sustainability Metric Compliant (Tier 1), 0.01%, and (2) with respect to Sustainability Metric Compliant (Tier 2), 0.025%, and (y) if the Borrower has not delivered a Sustainability Notice to the Administrative Agent within 30 days of the first anniversary of any such change to the Applicable Rate as set forth above, the Applicable Rate shall automatically revert to the original pricing grid set forth above unless and until the Borrower has delivered a Sustainability Notice to the Administrative Agent indicating that the Borrower is Sustainability Metric Compliant (Tier 1) or Sustainability Metric Compliant (Tier 2), as applicable, for the Test Period immediately preceding the most recent Measurement Date.
“Applicable Revolving Percentage” means, with respect to any Revolving Lender at any time, the percentage (carried out to the ninth decimal place) of the aggregate Commitments represented by such Xxxxxx’s Commitment at such time, subject to adjustment as provided in Section 2.18. If the Commitments and the obligation of the L/C Issuers to make L/C Credit Extensions have been terminated pursuant to Section 9.02 or if the Commitments have expired, then the Applicable Revolving Percentage of each Revolving Lender shall be determined based on the Applicable Revolving Percentage of such Lender most recently in effect, giving effect to any subsequent assignments.
“Approved Fund” means any Fund 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.
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“Arrangers” mean PNC Capital Markets LLC, Citibank, N.A., Xxxxx Fargo Securities LLC, Capital One, National Association, Regions Capital Markets and U.S. Bank National Association in their capacity as joint lead arrangers and/or joint book managers.
“Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.
“Assignee Lender” has the meaning specified in Section 2.19. “Assignor Lender” has the meaning specified in Section 2.19.
“Assignment and Assumption” means an assignment and assumption entered into by a Xxxxxx and an Eligible Assignee (with the consent of any party whose consent is required by Section 11.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit E or any other form approved by the Administrative Agent.
“Attributable Indebtedness” means, on any date, (a) in respect of any capital lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a capital lease.
“Audited Financial Statements” means the audited consolidated balance sheet of the Parent and its Subsidiaries for the fiscal year ended December 31, 2020, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of the Parent and its Subsidiaries, including the notes thereto.
“Availability Period” means the period from and including the Closing Date to the earliest of (a) the Maturity Date, (b) the date of termination of the Commitments pursuant to Section 2.07, and (c) the date of termination of the commitment of each Revolving Lender to make Revolving Loans pursuant to Section 9.02 and of the obligation of the L/C Issuers to make L/C Credit Extensions pursuant to Section 9.02.
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if the then-current Benchmark is a term rate or is based on a term rate, any tenor for such Benchmark that is or may be used for determining the length of an Interest Period or (y) otherwise, any payment period for interest calculated with reference to such Benchmark, as applicable, pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Xxxxxxxxx that is then-removed from the definition of “Interest Period” pursuant to Section 3.03(d).
“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
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banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bankruptcy Code” means the Bankruptcy Reform Act of 1978, as heretofore and hereafter amended, as codified at 11 U.S.C. § 101 et seq., and the rules and regulations promulgated thereunder, or any successor provision thereto.
“Base Rate” means, for any day, a fluctuating per annum rate of interest equal to the highest of (ai) the interest rate per annum in effect for such day announced from time to time by PNC at the Administrative Agent’s Office as its then prime rate, which rate may not be the lowest rate then being charged commercial borrowers by the Administrative Agent, (b) the Federal Funds OpenOvernight Bank Funding Rate, plus 0.5%, and (cii) the Daily Eurodollar RatePrime Rate, and (iii) the Adjusted Daily Simple SOFR Rate, plus 11.00%, so long as the Daily Eurodollar RateSimple SOFR is offered, ascertainable and not unlawful; provided, that in no event shallhowever, if the Base Rate as determined above would be less than 0.0%.one percent (1.00%), then such rate shall be deemed to be one percent (1.00%). Any change in the Base Rate (or any component thereof) shall take effect at the opening of business on the day such change occurs.
“Base Rate Loan” means a Loan that bears interest based on the Base Rate.
“Benchmark” means, initially, the Adjusted Term SOFR Rate or the Adjusted Daily Simple SOFR Rate, as applicable; provided that if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to the Adjusted Term SOFR Rate or the Adjusted Daily Simple SOFR Rate, as applicable, 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 this Section. Any reference to “Benchmark” shall include, as applicable, the published component used in the calculation thereof.
“Benchmark Replacement” means, for any Available Tenor, the sum of (A) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by the Relevant Governmental Body, for U.S. dollar-denominated syndicated credit facilities at such time and
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Available Tenor for any setting of such Unadjusted Benchmark Replacement 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 for the applicable Corresponding Tenor giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by the Relevant Governmental Body, for U.S. dollar-denominated syndicated credit facilities at such time; provided that, if the then-current Benchmark is a term rate, more than one tenor of such Benchmark is available as of the applicable Benchmark Replacement Date and the applicable Unadjusted Benchmark Replacement will not be a term rate, the Available Tenor of such Benchmark for purposes of this definition of “Benchmark Replacement Adjustment” shall be deemed to
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be the Available Tenor that has approximately the same length (disregarding business day adjustments) as the payment period for interest calculated with reference to such Unadjusted Benchmark Replacement.
“Benchmark Replacement Date” means a date and time determined by the Administrative Agent, which date shall be at the end of an Interest Period and no later than the earliest to occur of the following events with respect to the then-current Benchmark:
For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) 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 any then-current Benchmark:
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Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative.
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 Unavailability Period” means the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition 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 3.03 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 3.03.
“Beneficial Owner” means, for the Parent, each of the following: (a) each individual, if any, who, directly or indirectly, owns 25% or more of such Parent’s equity interests; and (b) a single individual with significant responsibility to control, manage, or direct the Parent.
“BHC Act Affiliate” has the meaning specified in Section 11.22. “Borrower” has the meaning specified in the introductory paragraph hereto. “Borrower Materials” has the meaning specified in Section 7.02.
“Borrowing” means a Revolving Loan Borrowing or a Swing Line Borrowing, as the context may require.
“Business Day” means any day other than a Saturday, or Sunday or a legal holiday on which commercial lendersbanks are authorized or required to be closed, or are in fact closed, for business in Pittsburgh, Pennsylvania and if such day relates to any Eurodollar Rate Loan,(or, if otherwise, the state where the Lending Office of the Administrative Agent is located); provided that, when used in connection with an amount that bears interest at a rate based on SOFR or any direct or indirect calculation or determination of SOFR, the term “Business Day” means any such day that is also a day on which dealings are carried on in the London interbank marketU.S. Government Securities Business Day.
“Capitalization Rate” means 6.75% for all properties.
“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Administrative Agent, L/C Issuers or Swing Line Lenders (as applicable) and the Revolving Lenders, as collateral for L/C Obligations, Obligations in respect of Swing Line Loans, or obligations of Revolving Lenders to fund participations in respect of either thereof (as the context may require), cash or deposit account balances or, if an L/C Issuer or a Swing Line Lender benefitting from such collateral shall agree in its sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to (a) the Administrative Agent and (b) the L/C Issuers or the Swing Line Lenders (as applicable). “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
“Cash Equivalents” means (a) securities issued, guaranteed or insured by the United States of America or any of its agencies with maturities of not more than one year from the date acquired; (b) certificates of deposit with maturities of not more than one year from the date acquired issued by a
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United States federal or state chartered commercial bank of recognized standing, or a commercial bank organized under the laws of any other country which is a member of the Organisation for Economic Co-operation and Development, or a political subdivision of any such country, acting through a branch or agency, which bank has capital and unimpaired surplus in excess of $500,000,000 and which bank or its holding company has a short term commercial paper rating of at least A-2 or the equivalent by S&P or at least P-2 or the equivalent by Moody’s; (c) reverse repurchase agreements with terms of not more than seven days from the date acquired, for securities of the type described in clause (a) above and entered into only with commercial banks having the qualifications described in clause (b) above; (d) commercial paper issued by any Person incorporated under the laws of the United States of America or any State thereof and rated at least A-2 or the equivalent thereof by S&P or at least P-2 or the equivalent thereof by Moody’s, in each case with maturities of not more than one year from the date acquired; and (e) investments in money market funds registered under the Investment Company Act of 1940 which have net assets of at least $500,000,000 and at least 85% of whose assets consist of securities and other obligations of the type described in clauses (a) through (d) above.
“Certificate of Beneficial Ownership” means, for the Parent, a certificate in substantially the form of Exhibit G hereto (as amended or modified by Administrative Agent from time to time in its sole discretion), certifying, among other things, the Beneficial Owner of the Parent.
“Cessation Announcements” has the meaning specified in Section 3.03(a).
“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; 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 a United States Governmental Authority, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
“Change of Control” means an event or series of events by which:
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to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body; or
“CIP Regulation” has the meaning specified in Section 10.11. “Citibank” means Citibank, N.A. and its successors.
“Closing Date” means the first date on which all the conditions precedent in Section 5.01 are satisfied or waived in accordance with Section 11.01.
“Code” means the Internal Revenue Code of 1986.
“Commitment” means, as to each Revolving Lender, its obligation to (a) make Revolving Loans to the Borrower pursuant to Section 2.01, (b) purchase participations in L/C Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 1.01(A) as its “Revolving Commitment” or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.
“Committed Borrowing” means a borrowing consisting of simultaneous Committed Loans of the same Type and, in the case of Eurodollar RateTerm SOFR Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.01.
“Committed Loan” means a Revolving Loan.
“Committed Loan Notice” means a notice of (a) a Committed Borrowing, (b) a conversion of Committed Loans from one Type to the other, or (c) a continuation of Eurodollar RateTerm SOFR Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A.
“Comparable Credit Facility” means any agreement that evidences Unsecured Indebtedness which contains (a) restrictions on Contractual Obligations of the types set forth in Section 8.08, and (b) a negative pledge and restrictions of the type referred to in clause (d) of the definition of Eligible Property, in each case, that are not more restrictive than the corresponding provisions of this Agreement.
“Compliance Certificate” means a certificate signed by the chief executive officer, chief financial officer, treasurer or controller of the Parent substantially in the form of Exhibit D.
“Conforming Changes” means, with respect to the Adjusted Term SOFR Rate, the Adjusted Daily Simple SOFR Rate or any Benchmark Replacement, any technical, administrative or operational changes (including changes to (or addition of) the definition of “Base Rate,” the definition of “Business Day”, the definition of “U.S. Government Securities Business Day”, the definition of “Interest Period”, timing and frequency of determining rates and making payments of interest and other administrative matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of the Adjusted Term SOFR Rate, the Adjusted Daily Simple SOFR Rate or such
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Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of the Adjusted Term SOFR Rate, the Adjusted Daily Simple SOFR Rate or the Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Consolidated Group” means the Loan Parties and their consolidated Subsidiaries, as determined in accordance with GAAP.
“Construction in Progress” means each Property that is either (a) new ground up construction which has commenced or is intended to be under construction within twelve (12) months or (b) under renovation in which (i) greater than thirty percent (30%) of the square footage of such Property is unavailable for occupancy due to renovation and (ii) no rents are being paid on such square footage. A Property will cease to be classified as “Construction in Progress” on the earlier to occur of (A) with respect to a multi-tenant Property, the time that such Property has an occupancy rate of greater than seventy-five percent (75%) from tenants occupying such Property and paying rent, or (B) one hundred eighty (180) days after completion of construction or renovation of such Property or (C) with respect to a single-tenant Property, rent commences from the tenant occupying such Property, as applicable.
“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“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.
“Corporate Rating Score” means the “ISS Corporate Rating” (with a range of “A+” to “D-” , with “A+” being “higher” than “D-”) assigned to the Borrower by ISS in respect of the Borrower for the most recent Test Period.
“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 (a) the Borrower, each of the Borrower’s Subsidiaries and each Guarantor and (b) each Person that, directly or indirectly, is in control of a Person described in clause (a) above. For purposes of this definition, control of a Person means the direct or indirect (x) ownership of, or power to vote, 25% or more of the issued and outstanding Equity Interests having ordinary voting power for the election of directors of such Person or other Persons performing similar functions for such Person, or (y) power to direct or cause the direction of the management and policies of such Person, whether through the ability to exercise voting power, by contract or otherwise.
“Covered Party” has the meaning specified in Section 11.22.
“Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
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“Credit Rating” means the published or private rating assigned by a Rating Agency to the senior unsecured long term Indebtedness of a Person.
“Daily Eurodollar RateSimple SOFR” means, for any day (a “SOFR Rate Day”), the interest rate per annum determined by the Administrative Agent by dividing (a) the Published Rate by (b) a number equal to 1.00 minus the Eurodollar Reserve Percentage; provided that in no event shall the Eurodollar Rate be less than 0.0%. The Daily Eurodollar Rate shall be adjusted with respect to any Base Rate Loan on and as of the effective date of any change in the Eurodollar Reserve Percentage. The Administrative Agent shall give prompt notice to the Borrower of the Daily Eurodollar Rate as determined or adjusted in accordance herewith, which determination shall be conclusive absent manifest errorequal to SOFR for the day (the “SOFR Determination Date”) that is 2 Business Days prior to (i) such SOFR Rate Day if such SOFR Rate Day is a Business Day or (ii) the Business Day immediately preceding such SOFR Rate Day if such SOFR Rate Day is not a Business Day. If Daily Simple SOFR as determined above would be less than the SOFR Floor, then Daily Simple SOFR shall be deemed to be the SOFR Floor. If SOFR for any SOFR Determination Date has not been published or replaced with a Benchmark Replacement by 5:00 p.m. (Pittsburgh, Pennsylvania time) on the second Business Day immediately following such SOFR Determination Date, then SOFR for such SOFR Determination Date will be SOFR for the first Business Day preceding such SOFR Determination Date for which SOFR was published in accordance with the definition of “SOFR”; provided that SOFR determined pursuant to this sentence shall be used for purposes of calculating Daily Simple SOFR for no more than 3 consecutive SOFR Rate Days. If and when Daily Simple SOFR as determined above changes, any applicable rate of interest based on Daily Simple SOFR will change automatically without notice to the Borrower, effective on the date of any such change.
“Daily Simple SOFR Loan” means a Loan that bears interest based on the Adjusted Daily Simple SOFR Rate (other than pursuant to clause (iii) of the definition of Base Rate).
“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
“Default Rate” means (a) when used with respect to Obligations other than Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if any, applicable to Base Rate Loans that are Revolving Loans plus (iii) 3.0% per annum; provided, however, that with respect to the principal amount of the Loans, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) plus 3.0% per annum, and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus 3.0% per annum.
“Default Right” has the meaning specified in Section 11.22.
“Defaulting Lender” means, subject to Section 2.18(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any L/C Issuer, any Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in
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respect of its participation in Letters of Credit or Swing Line Loans) within two Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent or any L/C Issuer or Swing Line Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Xxxxxx’s obligation to fund a Loan hereunder and states that such position is based on such Xxxxxx’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided, that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or
(d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.18(b)) upon delivery of written notice of such determination to the Borrower, each L/C Issuer, each Swing Line Lender and each Lender.
“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.
“Dollar” and “$” mean lawful money of the United States.
“EBITDA” means for the Consolidated Group, without duplication, the sum of (a) Net Income of the Consolidated Group, in each case, excluding (i) any non-recurring or extraordinary gains and losses for such period, (ii) any income or gain and any loss in each case resulting from early extinguishment of indebtedness and (iii) any net income or gain or any loss resulting from a swap or other derivative contract (including by virtue of a termination thereof), plus (b) an amount which, in the determination of net income for such period pursuant to clause (a) above, has been deducted for or in connection with (i) Interest Expense (plus, amortization of deferred financing costs, to the extent included in the determination of Interest Expense per GAAP), (ii) income taxes, and (iii) depreciation and amortization, all determined in accordance with GAAP for the prior four quarters and (iv) adjustments as a result of the straight lining of rents, all as determined in accordance with GAAP, plus (c) the Consolidated Group’s pro rata share of the above attributable to interests in Unconsolidated Affiliates. EBITDA shall be adjusted to remove any impact from amortization of above and below market rent intangibles pursuant to GAAP applicable to business combinations and/or asset acquisitions.
“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
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definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Federal Funds Rate” means for any day the rate per annum (based on a year of 360 days and actual days elapsed and rounded upward to the nearest 1/100 of 1% announced by the NYFRB (or any successor) on such day as being the weighted average of the rates on overnight federal funds transactions arranged by federal funds brokers on the previous trading day, as computed and announced by such Federal Reserve Bank (or any successor) in substantially the same manner as such Federal Reserve Bank computes and announces the weighted average it refers to as the “Effective Federal Funds Rate” as of the date of this Agreement; provided that if such Federal Reserve Bank (or its successor) does not announce such rate on any day, the “Effective Federal Funds Rate” for such day shall be the Effective Federal Funds Rate for the last day on which such rate was announced. Notwithstanding the foregoing, if the Effective Federal Funds Rate as determined under any method above would be less than zero percent (0.00%), such rate shall be deemed to be zero percent (0.00%) for purposes of this Agreement.
“Eligible Assignee” means any Person that meets the requirements to be an assignee under Sections 11.06(b)(iii) and 11.06(b)(v) (subject to such consents, if any, as may be required under Section 11.06(b)(iii)).
“Eligible Ground Lease” means a ground lease containing terms and conditions customarily required by mortgagees making a loan secured by the interest of the holder of the leasehold estate demised pursuant to a ground lease, including the following: (a) a remaining term (exclusive of any unexercised extension options) of 30 years or more from the Closing Date; (b) the right of the lessee to mortgage and encumber its interest in the leased property, and to amend the terms of any such mortgage or encumbrance, in each case, without the consent of the lessor; (c) the obligation of the lessor to give the holder of any mortgage Lien on such leased property written notice of any defaults on the part of the lessee and agreement of such lessor that such lease will not be terminated until such holder has had a reasonable opportunity to cure or complete foreclosures, and fails to do so; (d) acceptable transferability of the lessee’s interest under such lease, including ability to sublease; (e) acceptable limitations on the use of the leased property; and (f) clearly determinable rental payment terms which in no event contain profit participation rights.
“Eligible Property” means a Property that meets and continues to satisfy each of the following
criteria:
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Property as security for Indebtedness of the Borrower or such Subsidiary, as applicable, and (ii) to sell, transfer or otherwise dispose of such Property;
If a Property which the Borrower wants to have included as an Eligible Property does not satisfy the requirements of an Eligible Property, then the Borrower shall so notify the Administrative Agent in writing and shall provide to the Administrative Agent a description of all the above-listed criteria that such Property does not meet, historical operating statements and such other Property level diligence materials as the Administrative Agent may reasonably request. The Administrative Agent shall promptly make available to each Lender the items delivered by the Borrower pursuant to the preceding sentence and request that the Lenders determine whether such Property shall be included as an Eligible Property. No later than 10 Business Days after the date on which a Lender has been provided with such request and all of such items, such Lender shall notify the Administrative Agent in writing whether or not such Lender approves that such Property be included as an Eligible Property (which approval shall not be unreasonably withheld, conditioned or delayed). If a Lender fails to give such notice within such time period, such Lender shall be deemed to have not approved of the inclusion of such Property as an Eligible Property. If the Required Lenders have approved such Property being included as an Eligible Property, then such Property shall become an Eligible Property.
“Environmental Laws” means any and all federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower, any other Loan Party or any of their respective Subsidiaries 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, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract,
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agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.
“ERISA” means the Employee Retirement Income Security Act of 1974.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
“ERISA Event” means (a) any “reportable event” as defined in Section 4043 of ERISA with respect to a Plan (other than an event as to which the PBGC has waived under subsection .22, .23, .25,
.27 or .28 of PBGC Regulation Section 4043 the requirement of Section 4043(a) of ERISA that it be notified of such event); (b) any failure to make a required contribution to any Plan that would result in the imposition of a lien or other encumbrance or the provision of security under Section 430 of the Code or Section 303 or 4068 of ERISA, or the arising of such a lien or encumbrance, there being or arising any “unpaid minimum required contribution” (as defined or otherwise set forth in Section 4971 of the Code or Part 3 of Subtitle B of Title 1 of ERISA), whether or not waived, or any filing of any request for or receipt of a minimum funding waiver under Section 412 of the Code or Section 303 of ERISA with respect to any Plan, or that such filing may be made, or any determination that any Plan is, or is reasonably expected to be, in at-risk status under Title IV of ERISA; (c) any incurrence by the Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates of any liability under Title IV of ERISA with respect to any Plan or Multiemployer Plan (other than for premiums due and not delinquent under Section 4007 of ERISA); (d) any institution of proceedings, or the occurrence of an event or condition which would reasonably be expected to constitute grounds for the institution of proceedings by the PBGC, under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan; (e) any incurrence by the Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan, or the receipt by the Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates of any notice that a Multiemployer Plan is in endangered or critical status under Section 305 of ERISA; (f) any receipt by the Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates of any notice, or any receipt by any Multiemployer Plan from the Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA; (g) engaging in a non-exempt prohibited transaction within the meaning of Section 4975 of the Code or Section 406 of ERISA; or (h) any filing of a notice of intent to terminate any Plan if such termination would require material additional contributions in order to be considered a standard termination within the meaning of Section 4041(b) of ERISA, any filing under Section 4041(c) of ERISA of a notice of intent to terminate any Plan, or the termination of any Plan under Section 4041(c) of ERISA.
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“Erroneous Payment” has the meaning specified in Section 10.13(a).
“Erroneous Payment Deficiency Assignment” has the meaning specified in Section 10.13(d). “Erroneous Payment Impacted LoanClass” has the meaning specified in Section 10.13(d).
“Erroneous Payment Return Deficiency” has the meaning specified in Section 10.13(d). “Erroneous Payment Subordination Rights” has the meaning specified in Section 10.13(d).
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Eurodollar Rate” means, with respect to a Eurodollar Rate Loans for an Interest Period, the interest rate per annum determined by the Administrative Agent by dividing: (i) the rate which appears on the Bloomberg Page BBAM1 (or on such other substitute Bloomberg page that displays rates at which US dollar deposits are offered by leading banks in the London interbank deposit market), or the rate which is quoted by another source selected by the Administrative Agent as an authorized information vendor for the purpose of displaying rates at which US dollar deposits are offered by leading banks in the London interbank deposit market (for purposes of this definition, an “Alternate Source”), at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such Interest Period as the London interbank offered rate for U.S. Dollars for an amount comparable to such Eurodollar Rate Loan and having a borrowing date and a maturity comparable to such Interest Period (or if there shall at any time, for any reason, no longer exist a Bloomberg Page BBAM1 (or any substitute page) or any Alternate Source, a comparable replacement rate determined by the Administrative Agent at such time (which determination shall be conclusive absent manifest error)); by (ii) a number equal to
1.00 minus the Eurodollar Reserve Percentage; provided that in no event shall the Eurodollar Rate be less than 0.0%. The Eurodollar Rate shall be adjusted with respect to any Eurodollar Rate Loan that is outstanding on the effective date of any change in the Eurodollar Reserve Percentage as of such effective date. The Administrative Agent shall give prompt notice to the Borrower of the Eurodollar Rate as determined or adjusted in accordance herewith, which determination shall be conclusive absent manifest error.
“Eurodollar Rate Loan” means a Committed Loan that bears interest at a rate based on the Eurodollar Rate.
“Eurodollar Reserve Percentage” means, as of any day the percentage in effect on such day as prescribed by the FRB (or any successor) for determining the maximum reserve requirements (including supplemental, marginal and emergency reserve requirements) with respect to eurocurrency funding (currently referred to as “Eurodollar Liabilities”).
“Event of Default” has the meaning specified in Section 9.01.
“Excluded Subsidiary” means (a) any Subsidiary of the Borrower (i) holding title to assets that are or are to become collateral for any Secured Indebtedness of such Subsidiary and (ii) that is prohibited from Guaranteeing the Indebtedness of the Borrower, in each case, pursuant to (x) any document, instrument, or agreement evidencing or that will evidence such Secured Indebtedness or (y) any provision of such Subsidiary’s organizational documents which provision was included in such Subsidiary’s organizational documents as a condition to the extension of such Secured Indebtedness or (b) any Subsidiary that is a non-Wholly Owned Subsidiary.
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“Excluded Taxes” means, with respect to the Administrative Agent, any Lender, any L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under the Laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located, (b) any branch profits taxes imposed by the United States or any similar tax imposed by any other jurisdiction in which the Borrower is located, (c) any backup withholding tax that is required by the Code to be withheld from amounts payable to a Lender that has failed to comply with clause (A) of Section 3.01(e)(ii), (d) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section 11.13), any United States withholding tax that (i) is required to be imposed on amounts payable to such Foreign Lender pursuant to the Laws in force at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office) or (ii) is attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply with clause (B) of Section 3.01(e)(ii), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 3.01(a)(ii) or 3.01(c) and (e) any U.S. federal withholding taxes imposed by XXXXX.
“Existing Credit Agreement” has the meaning specified in the second introductory paragraph
hereof.
“Extension Option” has the meaning specified in Section 2.15.
“Facility” means the extensions of credit made hereunder by Xxxxxxx holding a Commitment. “FASB ASC” means the Accounting Standards Codification of the Financial Accounting
Standards Board.
“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) and any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.
“Federal Funds Open Rate” means, for any day, the rate per annum (based on a year of 360 days and actual days elapsed) which is the daily federal funds open rate as quoted by ICAP North America, Inc. (or any successor) as set forth on the Bloomberg Screen BTMM for that day opposite the caption “OPEN” (or on such other substitute Bloomberg Screen that displays such rate), or as set forth on such other recognized electronic source used for the purpose of displaying such rate as selected by the Administrative Agent (for purposes of this definition, an “Alternate Source”) (or if such rate for such day does not appear on the Bloomberg Screen BTMM (or any substitute screen) or on any Alternate Source, or if there shall at any time, for any reason, no longer exist a Bloomberg Screen BTMM (or any substitute screen) or any Alternate Source, a comparable replacement rate determined by the Administrative Agent at such time (which determination shall be conclusive absent manifest error)); provided, however, that if such day is not a Business Day, the Federal Funds Open Rate for such day shall be the “open” rate on the immediately preceding Business Day. The rate of interest charged shall be adjusted as of each Business Day based on changes in the Federal Funds Open Rate without notice to the Borrower.
“Fee Letters” mean the Fee Letter dated as of November 8, 2021, by and among PNC Capital Markets LLC, PNC and the Borrower and those certain other fee letters, if any, between the Borrower
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and certain other Arrangers and/or their affiliates entered into to document certain arrangement fees payable to such other Arrangers in connection with this Agreement.
“Fitch” means Fitch Ratings, Inc. and any successor thereto.
“Fixed Charges” means for the Consolidated Group, without duplication, the sum of (a) Interest Expense, plus (b) scheduled principal payments, exclusive of balloon payments, plus (c) dividends and distributions on preferred stock, if any, plus (d) the Consolidated Group’s pro rata share of the above attributable to interests in Unconsolidated Affiliates, all for the most recently ended period of four fiscal quarters.
“Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to the Adjusted Term SOFR Rate and Adjusted Daily Simple SOFR Rate or, if no floor is specified, zero.
“Foreign Lender” means any Lender that is organized under the Laws of a jurisdiction other than that in which the Borrower is resident for tax purposes (including such a Lender when acting in the capacity of an L/C Issuer). For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.
“FRB” means the Board of Governors of the Federal Reserve System of the United States. “Fronting Exposure” means, at any time there is a Revolving Lender that is a Defaulting Lender,
| (a) | with respect to the L/C Issuers, such Defaulting Lender’s Applicable Revolving Percentage of the |
outstanding L/C Obligations other than L/C Obligations 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, and (b) with respect to the Swing Line Lenders, such Defaulting Lender’s Applicable Revolving Percentage of Swing Line Loans other than Swing Line Loans 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.
“Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.
“Governmental Authority” means any nation or government, any state or other political subdivision thereof or any entity, authority, agency, division or department exercising the executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to a government (including any supra-national bodies such as the European Union or the European Central Bank) and any group or body charged with setting financial accounting or regulatory capital rules or standards (including, without limitation, the Financial Accounting Standards Board, the Bank for
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International Settlements or the Basel Committee on Banking Supervision or any successor or similar authority to any of the foregoing).
“Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation,
(iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning. The term “Guarantee” shall not include limited guaranties of customary exceptions for fraud, misapplication of funds, environmental indemnities, voluntary bankruptcy, collusive involuntary bankruptcy and other similar exceptions to non-recourse liability.
“Guarantors” means, collectively, Parent and each Subsidiary Guarantor, and “Guarantor” means any one of the Guarantors. The initial Guarantors are listed on Schedule 1.01(B).
“Guaranty” means the Third Amended and Restated Guaranty executed by each by the Parent and each Subsidiary Guarantor in favor of Administrative Agent, for the benefit of the Lenders, in form and substance acceptable to Administrative Agent.
“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” has the meaning specified in Section 3.03(a).
“Increase Request” has the meaning specified in Section 2.16(a).
“Indebtedness” means, for the Consolidated Group, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
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comfort letters, keep-well agreements and capital maintenance agreements) to the extent such instruments or agreements support financial, rather than performance, obligations;
| (c) | net obligations under any Swap Contract; |
| (e) | capital leases, Synthetic Lease Obligations and Synthetic Debt; |
For all purposes hereof, Indebtedness shall include the Consolidated Group’s pro rata share of the foregoing items and components attributable to Indebtedness of Unconsolidated Affiliates. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of any capital lease or Synthetic Lease Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date.
“Indemnified Taxes” means Taxes other than Excluded Taxes. “Indemnitee” has the meaning specified in Section 11.04(b). “Information” has the meaning specified in Section 11.07.
“Interest Expense” means, without duplication, total interest expense of the Consolidated Group determined in accordance with GAAP (including for the avoidance of doubt capitalized interest and interest expense attributable to the Consolidated Group’s ownership interests in Unconsolidated Affiliates), all for the most recently ended period of four fiscal quarters.
“Interest Payment Date” means, (a) as to any Loan other than a Daily Simple SOFR Loan or a Base Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date for such Loans; provided, however, that if any Interest Period for a Eurodollar RateTerm SOFR Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Daily Simple SOFR Loan or Base Rate Loan (including a Swing Line Loan), the last Business Day of each March, June, September and December and the Maturity Date for such Loans.
“Interest Period” means as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed, converted to or continued as a Eurodollar Rate Loan and ending on the date one, three or six months thereafter (or such other period as the Administrative Agent in its
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sole discretion may allow the Borrower to select; provided, that such period is available from all of the Lenders), as selected by the Borrower in the applicable Committed Loan Notice; provided, that:
, (ii) B) the Borrower shall not select, convert to or renew an Interest Period for any portion of the Loans that would end after the Maturity Date, and (C) any Interest Period that beginscommences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month at the end of such Interest Period) shall end on the last Business Day of the last calendar month at the end of such Interest Period; and.
(iii)no Interest Period for Loans shall extend beyond the Maturity Date.
“IRS” means the United States Internal Revenue Service.
“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).
“ISS” means Institutional Shareholder Services, Inc.
“Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by an L/C Issuer and the Borrower (or any Subsidiary) or in favor of such L/C Issuer and relating to such Letter of Credit.
“Laws” means any law(s) (including common law), constitution, statute, treaty, regulation, rule, ordinance, opinion, issued guidance, release, ruling, order, executive order, injunction, writ, decree, bond, judgment, authorization or approval, lien or award of or any settlement arrangement, by agreement, consent or otherwise, with any Governmental Authority, foreign or domestic.
“L/C Advance” means, with respect to each Revolving Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Revolving Percentage.
“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Loan Borrowing.
“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
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“L/C Issuer” means each of PNC, Citibank and Xxxxx Fargo in its capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder.
“L/C Obligations” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings. 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 1.06. 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” has the meaning specified in the introductory paragraph hereto and, as the context requires, includes the Swing Line Lenders.
“Lender Reply Date” has the meaning specified in Section 10.12.
“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Xxxxxx’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent.
“Letter of Credit” means any standby letter of credit issued hereunder.
“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 L/C Issuer.
“Letter of Credit Expiration Date” means the day that is 30 days prior to the Maturity Date then in effect; provided that if a Letter of Credit is Cash Collateralized in accordance with Section 2.17 at least 30 days prior to the Maturity Date, the Letter of Credit Expiration Date may be up to one (1) year after the Maturity Date.
“Letter of Credit Fee” has the meaning specified in Section 2.04(h).
“Letter of Credit Sublimit” means an amount equal to One Hundred Million Dollars ($100,000,000) as such amount may be reduced from time to time pursuant to the terms hereof. The Letter of Credit Sublimit is part of, and not in addition to the Commitments.
“Leverage Ratio” means, as of any date of determination, the ratio of (a) Total Indebtedness to
| (b) | Total Asset Value. |
“Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).
“Loan” means a Revolving Loan and/or a Swing Line Loan, as the context shall require.
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“Loan Documents” means this Agreement, each Note, each Issuer Document, any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.17 of this Agreement, the Fee Letters, and the Guaranty.
“Loan Parties” means, collectively, the Borrower and each Guarantor.
“Mandatorily Redeemable Stock” means, with respect to any Person, any Equity Interest of such Person which by the terms of such Equity Interest (or by the terms of any security into which it is convertible or for which it is exchangeable or exercisable), upon the happening of any event or otherwise, (a) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise (other than an Equity Interest to the extent redeemable in exchange for common stock or other equivalent common Equity Interests at the option of the issuer of such Equity Interest), (b) is convertible into or exchangeable or exercisable for Indebtedness or Mandatorily Redeemable Stock, or (c) is redeemable at the option of the holder thereof, in whole or part (other than an Equity Interest which is redeemable solely in exchange for common stock or other equivalent common Equity Interests), in each case on or prior to the date on which all Loans are scheduled to be due and payable in full.
“Master Agreement” has the meaning specified in the definition of “Swap Contract”.
“Material Acquisition” means any acquisition by the Borrower or any Subsidiary in which the GAAP book value of the assets acquired exceeds 10.0% of the consolidated total assets of the Borrower and its Subsidiaries determined under GAAP as of the last day of the most recently ending fiscal quarter of the Borrower for which financial statements are publicly available.
“Material Adverse Effect” means (A) a material adverse change in, or a material adverse effect on, the operations, business, assets, properties, liabilities (actual or contingent), or condition (financial or otherwise) of the Parent or the Borrower and its Subsidiaries, taken as a whole; (B) a material adverse effect on the rights and remedies of the Administrative Agent or any Lender under any Loan Documents, or of the ability of the Borrower and the Loan Parties taken as a whole to perform their obligations under any Loan Documents; or (C) a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Documents to which it is a party.
“Material Subsidiary” means (i) with respect to Section 9.01(h), one or more Subsidiaries, individually or in the aggregate, to which 2.5% or more of Total Asset Value is attributable, and (ii) with respect to Section 9.01(i), one or more Subsidiaries, individually or in the aggregate, having assets equal to or greater than $100,000,000 in value.
“Maturity Date” means the earliest of (a) January 15, 2026 (as such date may be extended pursuant to Section 2.15), (b) the date on which the Commitments are terminated pursuant to Section
2.07 or 9.02 or otherwise and (c) the date on which all amounts outstanding under this Agreement have been declared or have automatically become due and payable (whether by acceleration or otherwise); provided, that, in each case, if such date is not a Business Day, the Maturity Date shall be the immediately preceding Business Day.
“Maximum Rate” has the meaning specified in Section 11.09. “Measurement Date” means December 31 of each calendar year.
“Moody’s” means Xxxxx’x Investors Service, Inc. and any successor thereto.
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“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.
“Net Income” means the net income (or loss) of the Consolidated Group for the subject period; provided, however that Net Income shall exclude (a) extraordinary gains and extraordinary losses for such period, (b) the net income of any subsidiary of the Parent during such period to the extent that the declaration or payment of dividends or similar distributions by such subsidiary of such income is not permitted by operation of the terms of its organization documents or any agreement, instrument or law applicable to such subsidiary during such period, except that the Parent’s equity in any net loss of any such subsidiary for such period shall be included in determining Net Income, (c) any income (or loss) for such period of any Person if such Person is not a subsidiary of the Parent, except that the Parent’s equity in the net income of any such Person for such period shall be included in Net Income up to the aggregate amount of cash actually distributed by such Person during such period to the Parent or a subsidiary thereof as a dividend or other distribution (and in the case of a dividend or other distribution to a subsidiary of the Parent, such subsidiary is not precluded from further distributing such amount to the Parent as described in clause (b) of this proviso), and (d) rental or other income from (i) any lease in respect of real property to tenants in any proceedings under any Debtor Relief Laws during the subject period that was not paid on the date rent was due to be paid by such tenant taking into account any applicable grace or cure period provided for by the terms of such lease, (ii) any lease in respect of real property to tenants in any proceedings under any Debtor Relief Laws that did not physically occupy such real property during the entirety of such period, and (iii) any leases in respect of real property to tenants, which leases have been rejected in any proceeding under Debtor Relief Laws during the subject period.
“Net Operating Income” means for any real property and for any period, an amount equal to the following (without duplication): (a) the aggregate gross revenues from the operations of such real property during such period (exclusive of any rental or other income from (i) any lease in respect of such real property to tenants in any proceedings under any Debtor Relief Laws during the subject period that was not paid on the date rent was due to be paid by such tenant taking into account any applicable grace or cure period provided for by the terms of such lease, (ii) any lease in respect of such real property to tenants in any proceedings under any Debtor Relief Laws that did not physically occupy such real property during the entirety of such period, and (iii) any leases in respect of such real property to tenants, which leases have been rejected in any proceeding under Debtor Relief Laws during the subject period) and without any amortization of above and below market rent intangibles pursuant to GAAP applicable to business combinations and/or asset acquisitions, plus (b) the aggregate gross revenues from any ground leases, minus (c) the sum of (i) all expenses and other proper charges incurred in connection with the operation of such real property during such period (including accruals for real estate taxes and insurance and an amount equal to the greater of (x) 1% of rents and (y) actual management fees paid in cash, but excluding capital expenditures, debt service charges, income taxes, depreciation, amortization and other non-cash expenses), which expenses and accruals shall be calculated in accordance with GAAP minus (d) the Annual Capital Expenditure Adjustment.
“Non-Extension Notice Date” has the meaning specified in Section 2.04(b)(ii).
“Non-Recourse Indebtedness” means, with respect to a Person, Indebtedness for borrowed money in respect of which recourse for payment (except for customary exceptions for fraud, misapplication of funds, environmental indemnities, and other similar customary exceptions to nonrecourse liability) is contractually limited to specific assets of such Person encumbered by a Lien securing such Indebtedness.
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“Non-U.S. Plan” means any plan, fund (including any superannuation fund) or other similar program established, contributed to (regardless of whether through direct contributions or through employee withholding) or maintained outside the United States by the Borrower or one or more of its Subsidiaries primarily for the benefit of employees of the Borrower or such Subsidiaries residing outside the United States, which plan, fund or other similar program provides, or results in, retirement income, a deferral of income in contemplation of retirement, or payments to be made upon termination of employment, and which plan is not subject to ERISA or the Code.
“Note” means a Revolving Note or a Swing Line Note. “NYFRB” shall mean the Federal Reserve Bank of New York.
“Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. For the avoidance of doubt, “Obligations” (i) shall not include any obligations or liabilities under any Swap Contract and (ii) shall include any Erroneous Payment Subordination Rights.
“OFAC” means the U.S. Department of Treasury’s Office of Foreign Assets Control, and any successor thereto.
“Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
“Other Taxes” means all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document.
“Outstanding Amount” means (i) with respect to Committed Loans and Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Committed Loans and Swing Line Loans, as the case may be, occurring on such date; and (ii) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Borrower of Unreimbursed Amounts.
“Overnight Bank Funding Rate” means, for any day, the greater of (i) the Federal Funds Open Rate and (ii) an overnightrate comprised of both overnight federal funds and overnight eurocurrency borrowings by U.S.-managed banking offices of depository institutions, as such composite rate shall be
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determined by the NYFRB, as set forth on its public website from time to time, and as published on the next succeeding Business Day as the overnight bank funding rate by the NYFRB (or by such other recognized electronic source (such as Bloomberg) selected by the Administrative Agent for the purpose of displaying such rate); provided, that if such day is not a Business Day, the Overnight Bank Funding Rate for such day shall be such rate on the immediately preceding Business Day; provided, further, that if such rate shall at any time, for any reason, no longer exist, a comparable replacement rate determined by the Administrative Agent in accordance with banking industry rules on interbank xxxxxxxxxxxx.xx such time (which determination shall be conclusive absent manifest error). If the Overnight Bank Funding Rate determined as above would be less than zero, then such rate shall be deemed to be zero. The rate of interest charged shall be adjusted as of each Business Day based on changes in the Overnight Bank Funding Rate without notice to the Borrower.
“Parent” has the meaning specified in the introductory paragraph hereto. “Participant” has the meaning specified in Section 11.06(d).
“Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56, as the same has been, or shall hereafter be, renewed, extended, amended or replaced.
“Payment Recipient” has the meaning specified in Section 10.13(a). “PBGC” means the Pension Benefit Guaranty Corporation.
“Permitted Liens” means, with respect to any asset or property of a Person:
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“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means any “employee benefit plan” as defined in Section 3 of ERISA (other than a Multiemployer Plan) maintained or contributed to by the Borrower or any ERISA Affiliate or to which the Borrower or any ERISA Affiliate has or may have an obligation to contribute, and each such plan that is subject to Title IV of ERISA for the five-year period immediately following the latest date on which the Borrower or any ERISA Affiliate maintained, contributed to or had an obligation to contribute to (or is deemed under Section 4069 of ERISA to have maintained or contributed to or to have had an obligation to contribute to, or otherwise to have liability with respect to) such plan.
“Platform” has the meaning specified in Section 7.02.
“PNC” means PNC Bank, National Association and its successors.
“Prime Rate” means the rate publicly announced by the Administrative Agent from time to time as its prime rate. The Prime Rate is determined from time to time by the Administrative Agent as a means of pricing some loans to its borrowers. The Prime Rate is not tied to any external rate of interest or index and does not necessarily reflect the lowest rate of interest actually charged by the Administrative Agent to any particular class or category of customers.
“Property” means any Real Property which is owned, directly or indirectly, by Borrower or a Subsidiary.
“Property Owners” means, collectively, the Borrower (to the extent the Borrower owns any Unencumbered Pool Property) and each Wholly Owned Subsidiary which owns an Unencumbered Pool Property, and “Property Owner” means any one of the Property Owners.
“Public Lender” has the meaning specified in Section 7.02.
“Published Rate” means the rate of interest published each Business Day in The Wall Street Journal “Money Rates” listing under the caption “London Interbank Offered Rates” for a one-month period (or, if no such rate is published therein for any reason, then the “Published Rate” shall be the eurodollar rate for a one-month period as published for such Business Day in another publication determined by the Administrative Agent.)
“QFC” has the meaning specified in Section 11.22.
“QFC Credit Support” has the meaning specified in Section 11.22. “Rating Agency” means S&P, Moody’s or Fitch.
“Real Property” of any Person means all of the right, title, and interest of such Person in and to land, improvements, and fixtures.
“Recourse Indebtedness” means Indebtedness for borrowed money (other than any Credit Extension) in respect of which recourse for payment (except for customary exceptions for fraud,
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misapplication of funds, environmental indemnities, and other similar exceptions to recourse liability) is to any Loan Party.
“Reference Time” means, with respect to any setting of the then-current Benchmark, the time determined by the Administrative Agent in its reasonable discretion.
“Register” has the meaning specified in Section 11.06(c).
“REIT” means a Person qualifying for treatment as a “real estate investment trust” under the
Code.
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees and advisors of such Person and of such Person’s Affiliates.
“Relevant Governmental Body” means the FRB or the NYFRB, or a committee officially endorsed or convened by the FRB or the NYFRB, or any successor thereto.
“Reportable Compliance Event” means that any Covered Entity, or in the case of a Shareholder Covered Entity, a Responsible Officer of either the Borrower or the Parent obtains actual knowledge that such Shareholder Covered Entity, becomes a Sanctioned Person, or is charged by indictment, criminal complaint or similar charging instrument, arraigned, or custodially detained in connection with any Anti-Terrorism Law or any predicate crime to any Anti-Terrorism Law, or has knowledge of facts or circumstances to the effect that it is reasonably likely that any aspect of its operations is in actual or probable violation of any Anti-Terrorism Law.
“Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Committed Loans, a Committed Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.
“Required Guarantee Conditions” means, as of any date of determination with respect to any Subsidiary, either (i) such Subsidiary Guarantees, or otherwise becomes obligated in respect of, any Indebtedness of the Parent, the Borrower or any other Subsidiary of the Borrower or the Parent; or (ii)(A) such Subsidiary owns an Unencumbered Pool Property or other asset the value of which is included in the determination of Unencumbered Asset Value and (B) such Subsidiary, or any other Subsidiary directly or indirectly owning any Equity Interest in such Subsidiary, has incurred, acquired or suffered to exist, any Indebtedness.
“Required Lenders” means, as of any date of determination, Lenders having greater than 50% of the aggregate amount of the Commitments or, if the Commitments have been terminated pursuant to Section 9.02 or otherwise, Lenders holding in the aggregate greater than 50% of the aggregate Revolving Outstandings (with the aggregate amount of each Revolving Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this definition); provided that the Commitment of, the Revolving Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
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“Responsible Officer” means the chief executive officer, chairman of the board, chief financial officer or president, and solely for purposes of the delivery of incumbency certificates pursuant to Section 5.01, the secretary or any assistant secretary of a Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of the Borrower, Parent or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to the stockholders, partners or members of Borrower, Parent or any Subsidiary (or the equivalent Person thereof).
“Revolving Lender” means a Lender having a Commitment, or if the Commitments have terminated, holding any Revolving Loans.
“Revolving Loan” has the meaning specified in Section 2.01.
“Revolving Loan Borrowing” means a borrowing consisting of simultaneous Revolving Loans of the same Type and, in the case of Eurodollar RateTerm SOFR Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.01.
“Revolving Note” means a promissory note made by the Borrower in favor of a Revolving Lender evidencing Revolving Loans made by such Lender, substantially in the form of Exhibit C-1.
“Revolving Outstandings” means, as of any date of determination, the aggregate Outstanding Amount of all Revolving Loans, Swing Line Loans and all L/C Obligations as of such date.
“Sanctioned Country” means, at any time, a country or territory subject to Sanctions, currently Crimeaincluding, without limitation, Cuba, Iran, North Korea, Sudan and, Syria, the Crimea Region of Ukraine and the so-called Donetsk People’s Republic or Luhansk People’s Republic regions of Ukraine.
“Sanctioned Person” means any individual person, group, regime, entity or thing listed or otherwise recognized as a specially designated, prohibited, sanctioned or debarred person, group, regime, entity or thing, or subject to any limitations or prohibitions (including but not limited to the blocking of property or rejection of transactions), under any Sanctions or Anti-Terrorism Law.
“Sanctions” means sanctions administered or enforced from time to time by the United States government, including those administered by OFAC, the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury or other relevant sanctions authority.
“S&P” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business, and any successor thereto.
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“Secondary Term SOFR Conversion Date” has the meaning specified in Section 3.03(g).
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“Secured Indebtedness” means for any Person, Indebtedness of such Person that is secured by x
Lien.
“Shareholder Covered Entity” means any Person that is a Covered Entity solely because such Person owns Equity Interests in the Parent.
“SOFR” means, for any day, a rate equal to the secured overnight financing rate as administered by the NYFRB (or a successor administrator of the secured overnight financing rate).
“SOFR Adjustment” means ten basis points (0.10%).
“SOFR Floor” means a rate of interest per annum equal to zero percent 0.00%.
“SOFR Loan” means a Daily Simple SOFR Loan or a Term SOFR Loan.
“Solvent” means, when used with respect to any Person, that (a) the fair value and the fair salable value of its assets (excluding any Indebtedness due from any affiliate of such Person) are each in excess of the fair valuation of its total liabilities (including all contingent liabilities); (b) such Person is able to pay its debts or other obligations in the ordinary course as they mature; and (c) such Person has capital not unreasonably small to carry on its business and all business in which it proposes to be engaged.
“Subject Entity” has the meaning specified in Section 11.22.
“Subject Measurement Date” has the meaning specified in the definition of “Sustainability Metric Compliance (Tier 1)”.
“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.
“Subsidiary Guarantor” means, as of any date, a Subsidiary of the Borrower that is a party to the Guaranty.
“Supported QFC” has the meaning specified in Section 11.22.
“Sustainability Metric Compliant (Tier 1)” means, in respect of any Measurement Date (each, a “Subject Measurement Date”), the Borrower obtains a Corporate Rating Score for the most recent Test Period that is higher than the Corporate Rating Score of the Borrower for the Test Period immediately preceding such most recent Test Period. For purposes of determining whether the Borrower is Sustainability Metric Compliant (Tier 1) on the first Measurement Date to occur after the Closing Date, Borrower’s Corporate Rating Score shall be deemed to be “D” for all periods on and prior to the Closing Date.
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“Sustainability Metric Compliant (Tier 2)” means, in respect of any Measurement Date, the Borrower obtains a Corporate Rating Score for the most recent Test Period that is equal to or higher than the Corporate Rating Score corresponding to the Measurement Date set forth in the chart below:
Measurement Date | Corporate Rating Score |
December 31, 2021 | C |
December 31, 2022 | B- |
December 31, 2023 | B |
December 31, 2024 | B+ |
December 31, 2025 | A- |
“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and
(b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).
“Swing Line Availability” has the meaning given that term in Section 2.05(a).
“Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section 2.05. “Swing Line Lender” means each of PNC, Citibank and Xxxxx Fargo in its capacity as provider
of Swing Line Loans, or any successor swing line lender hereunder. “Swing Line Loan” has the meaning specified in Section 2.05(a).
“Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to Section 2.05(b), which, if in writing, shall be substantially in the form of Exhibit B.
“Swing Line Note” means a promissory note made by the Borrower in favor of a Swing Line Lender evidencing the Swing Line Loans, substantially in the form of Exhibit C-2.
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“Swing Line Sublimit” means an amount equal to One Hundred Million Dollars ($100,000,000) as such amount may be reduced from time to time pursuant to the terms hereof. The Swing Line Sublimit is part of, and not in addition to the Commitments.
“Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).
“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 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 Loan” means a Loan that bears interest based on the Adjusted Term SOFR Rate.
“Term SOFR Rate” means, with respect to any amount to which the Term SOFR Rate option applies, for any Interest Period, the interest rate per annum equal to the Term SOFR Reference Rate for a tenor comparable to such Interest Period, as such rate is published by the Term SOFR Administrator on the day (the “Term SOFR Determination Date”) that is two (2) Business Days prior to the first day of such Interest Period. If the Term SOFR Reference Rate for the applicable tenor has not been published or replaced with a Benchmark Replacement by 5:00 p.m. (Pittsburgh, Pennsylvania time) on the Term SOFR Determination Date, then the Term SOFR Reference Rate, for purposes of clause (A) in the preceding sentence, shall be the Term SOFR Reference Rate for such tenor on the first Business Day preceding such Term SOFR Determination Date for which such Term SOFR Reference Rate for such tenor was published in accordance herewith, so long as such first preceding Business Day is not more than three (3) Business Days prior to such Term SOFR Determination Date. The Term SOFR Rate shall be adjusted automatically without notice to the Borrower on and as of the first day of each Interest Period.
“Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.
“Test Period” means, with respect to any Measurement Date, the twelve-month period ending on the date of the most recent “ISS Corporate Rating” published by ISS in respect of the Borrower prior to such Measurement Date.
“Total Asset Value” means at any time for the Consolidated Group, without duplication, the sum of the following: (a) an amount equal to (1) Net Operating Income for the most recently ended period of four fiscal quarters from all real property assets owned by the Consolidated Group for such entire period (excluding Net Operating Income attributable to real property assets disposed of during such period), divided by (2) the Capitalization Rate, plus (b) the aggregate acquisition cost of all owned real property assets owned by the Consolidated Group for less than four fiscal quarters, plus (c) the aggregate book value of all unimproved land holdings, mortgage or mezzanine loans, notes receivable and/or Construction in Progress owned by the Consolidated Group, plus (d) all cash and Cash Equivalents (excluding tenant deposits and other cash and Cash Equivalents the disposition of which is restricted), plus (e) the Consolidated Group’s pro rata share of the foregoing items and components (excluding assets of the type described in the immediately preceding clause (d)) attributable to interests in Unconsolidated
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Affiliates. Notwithstanding the foregoing, (i) to the extent that the book value of unimproved land holdings exceeds 10% of Total Asset Value, such excess shall be excluded, (ii) to the extent that the aggregate book value of mortgage, mezzanine loans and notes receivable exceeds 10% of Total Asset Value, such excess shall be excluded, (iii) to the extent that the book value of Construction in Progress exceeds 20% of Total Asset Value, such excess shall be excluded, (iv) to the extent that the aggregate Total Asset Value attributable to non-Wholly Owned Subsidiaries and Unconsolidated Affiliates exceeds 20% of Total Asset Value, such excess shall be excluded, and (v) to the extent that the Total Asset Value attributable to (I) clause (c) above and (II) non-Wholly Owned Subsidiaries and Unconsolidated Affiliates exceeds 30% of Total Asset Value, such excess shall be excluded.
“Total Indebtedness” means all Indebtedness of the Consolidated Group determined on a consolidated basis.
“Total Secured Indebtedness” means all Secured Indebtedness of the Consolidated Group determined on a consolidated basis.
“Type” when used in reference to a Loan or a Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the EurodollarAdjusted Daily Simple SOFR Rate, the Adjusted Term SOFR Rate or the Base Rate.
“U.S. Special Resolution Regimes” has the meaning specified in Section 11.22.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form 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 an affiliate of the Parent whose financial statements are not required to be consolidated with the financial statements of the Parent in accordance with GAAP.
“Unencumbered Asset Value” means at any time for the Consolidated Group, without duplication, (a) the sum of the Unencumbered Pool NOI divided by the Capitalization Rate plus (b) unencumbered cash and Cash Equivalents (excluding tenant deposits and other cash and Cash Equivalents the disposition of which is restricted) of the Borrower and its Wholly Owned Subsidiaries; provided, however, that if the aggregate value of such cash and Cash Equivalents would exceed 10.0% of Unencumbered Asset Value, the value of such cash and Cash Equivalents in excess of 10.0% of Unencumbered Asset Value shall be excluded in the determination of Unencumbered Asset Value hereunder.
“Unencumbered Pool NOI” means, at any time with respect to an Unencumbered Pool Property, the Net Operating Income from such Property for the fiscal quarter most recently ended multiplied by four. For the avoidance of doubt, the Net Operating Income of a Property that has been owned or leased by a Person for less than one fiscal quarter will be included in calculating Unencumbered Pool NOI as if
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such Property was owned by such Person for the then most recent fiscal quarter. For the avoidance of doubt, the Net Operating Income of a Property that was sold by a Person within the fiscal quarter will be excluded in calculating Unencumbered Pool NOI. Notwithstanding the foregoing, for the purposes of calculating the aggregate Unencumbered Pool NOI of all Unencumbered Pool Properties, to the extent that more than fifteen (15%) of the aggregate Unencumbered Pool NOI would be attributable to Properties leased under Eligible Ground Leases, such excess shall be excluded from the aggregate Unencumbered Pool NOI.
“Unencumbered Pool Property” means an Eligible Property that pursuant to the terms of this Agreement is permitted to be included in determinations of Unencumbered Pool NOI and Unencumbered Asset Value.
“Unencumbered Pool Report” means a report in substantially the form of Exhibit F (or such other form approved by Administrative Agent) certified by the chief executive officer, chief financial officer, treasurer or controller of the Borrower.
“Unfunded Pension Liability” of any Plan means the amount, if any, by which the value of the accumulated plan benefits under the Plan, determined on a plan termination basis in accordance with actuarial assumptions at such time consistent with those prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds the fair market value of all Plan assets allocable to such liabilities under Title IV of ERISA (excluding any accrued but unpaid contributions).
“United States” and “U.S.” mean the United States of America. “Unreimbursed Amount” has the meaning specified in Section 2.04(c)(i).
“Unsecured Indebtedness” means all Indebtedness which is not secured by a lien on any property.
“U.S. Government Securities Business Day” means any day except for (a) a Saturday or Sunday or (b) 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.
“Xxxxx Fargo” means Xxxxx Fargo Bank, National Association and its successors.
“Wholly Owned Subsidiary” means any Subsidiary of a Person in respect of which all of the Equity Interests are at the time directly or indirectly owned or controlled by such Person or one or more other Subsidiaries of such Person or by such Person and one or more other Subsidiaries of such Person.
“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 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
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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.
| 1.03 | Accounting Terms. |
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Accounting Standards Codification 842; provided, however, that upon the reasonable request of the Administrative Agent or any Lender, the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents setting forth a reconciliation between calculations of such covenant made before and after giving effect to Accounting Standards Codification 842 (or such other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) (and related interpretations).
(a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its equity interests at such time.
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ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS
| 2.02 | Borrowings, Conversions and Continuations of Committed Loans.1 |
$1,000,000 or a whole multiple of $500,000 in excess thereof. Except as provided in Sections 2.04(c) and 2.05(c), each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of
$100,000 or a whole multiple of $50,000 in excess thereof. Each Committed Loan Notice shall specify
(i) whether the Borrower is requesting a Revolving Loan Borrowing, a conversion of Committed Loans from one Type to the other, or a continuation of Eurodollar RateTerm SOFR Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day and, in the case of any SOFR Loans, a U.S. Government Securities Business Day), (iii) the principal amount of Committed Loans to be borrowed, converted or continued, (iv) the Type of Committed Loans to be borrowed or the Type to which existing Committed Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto. If the Borrower fails to specify a Type of Committed Loan in a Committed Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or continuation of Term SOFR Loans, then, so long as no Default exists at the time of such making, the applicable Loans shall be made as, continued as, or converted to, Eurodollar RateTerm SOFR Loans having an Interest Period of one month; provided, however, that if a Default exists at the time of such making, continuation or conversion, then the applicable Committed Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurodollar RateTerm SOFR Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar RateTerm SOFR Loans
1 PNC to confirm the timing in 2.02, 2.04 (L/Cs), 2.05 (Swing Line Loans), and 2.06 (notice of prepayments) remains appropriate.
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in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.
| 2.03 | [Intentionally Omitted]. |
| 2.04 | Letters of Credit. |
| (a) | The Letter of Credit Commitment. |
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drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (I) the Revolving Outstandings shall not exceed the aggregate amount of the Commitments, (II) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such Lender’s Applicable Revolving Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Revolving Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Xxxxxx’s Commitment, and (III) the stated amount (calculated in accordance with Section 1.06 hereof) of the L/C Obligations of any L/C Issuer shall not exceed the lesser of (x) 33.33% of the Letter of Credit Sublimit, and (y) the Commitment of such L/C Issuer in its capacity as a Revolving Lender. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
| (ii) | The L/C Issuers shall not issue any Letter of Credit, if: |
| (iii) | No L/C Issuer shall be under any obligation to issue any Letter of Credit if: |
$50,000;
| (D) | the Letter of Credit is to be denominated in a currency other than |
Dollars;
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| (b) | Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of |
Credit.
(C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested Letter of Credit; and (H) such other matters as the applicable L/C Issuer may require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the applicable L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment;
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and (D) such other matters as such L/C Issuer may require. Additionally, the Borrower shall furnish to such L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as such L/C Issuer or the Administrative Agent may require.
| (c) | Drawings and Reimbursements; Funding of Participations. |
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whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Revolving Lender’s obligation to make Revolving Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 5.02 (other than delivery by the Borrower of a Committed Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse an L/C Issuer for the amount of any payment made by such L/C Issuer under any Letter of Credit, together with interest as provided herein.
| (d) | Repayment of Participations. |
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The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Borrower’s instructions or other irregularity, the Borrower will immediately notify the applicable L/C Issuer. The Borrower shall be conclusively deemed to have waived any such claim against an L/C Issuer and its correspondents unless such notice is given as aforesaid.
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to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused by such L/C Issuer’s willful misconduct or gross negligence or such L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, an L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and no L/C Issuer shall be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.
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relating to letters of credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.
| 2.05 | Swing Line Loans. |
$100,000, and (ii) the requested borrowing date, which shall be a Business Day. Unless such Swing Line Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing such Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the first proviso to the first sentence of Section 2.05(a), or (B) that one or more of the applicable conditions specified in Article V is not then satisfied, then, subject to the terms and conditions hereof, such Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the Borrower at the account specified by the Borrower in such Swing Line Loan Notice in immediately available funds.
| (c) | Refinancing of Swing Line Loans. |
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Applicable Revolving Percentage of the amount of such Swing Line Loan then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Committed Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Commitments and the conditions set forth in Section 5.02.Such Swing Line Lender shall furnish the Borrower with a copy of the applicable Committed Loan Notice promptly after delivering such notice to the Administrative Agent.Each Revolving Lender shall make an amount equal to its Applicable Revolving Percentage of the amount specified in such Committed Loan Notice available to the Administrative Agent in immediately available funds (and the Administrative Agent may apply Cash Collateral available with respect to the applicable Swing Line Loan) for the account of such Swing Line Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such Committed Loan Notice, whereupon, subject to Section 2.05(c)(ii), each Lender that so makes funds available shall be deemed to have made a Revolving Loan which is a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to such Swing Line Lender.
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relieve or otherwise impair the obligation of the Borrower to repay Swing Line Loans, together with interest as provided herein.
| (d) | Repayment of Participations. |
| 2.06 | Prepayments. |
$100,000 in excess thereof; and (iii) any prepayment of Base Rate Loans shall be in a principal amount of $100,000 or a whole multiple of $50,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment and the Type(s) of Committed Loans to be prepaid and, if Eurodollar RateTerm SOFR Loans are to be prepaid, the Interest Period(s) of such Loans. The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such prepayment payable to such Lender. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurodollar RateTerm SOFR Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05. Subject to Section 2.18,
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each such prepayment shall be applied to the Committed Loans of the Lenders in accordance with their respective Applicable Percentages.
$1,000,000 in excess thereof, (iii) the Borrower shall not terminate or reduce the Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Revolving Outstandings would exceed the Commitments, and (iv) if, after giving effect to any reduction of the Commitments, the Letter of Credit Sublimit or Swing Line Sublimit exceeds the amount of the Commitments, such applicable sublimits shall be automatically reduced by the amount of such excess. The Administrative Agent will promptly notify the Lenders of any such notice of termination or reduction of the Commitments. Any reduction of the Commitments shall be applied to the Commitment of each Revolving Lender according to its Applicable Revolving Percentage. All fees accrued until the effective date of any termination of the Commitments shall be paid on the effective date of such termination.
| 2.08 | Repayment of Loans. |
| 2.09 | Interest. |
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amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate; and (iiiiv) each Swing Line Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate for Base Rate Loans.
| 2.10 | Fees. In addition to certain fees described in subsections (h) and (i) of Section 2.04: |
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the times specified. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
| 2.11 | Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate. |
| 2.12 | Evidence of Debt. |
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Swing Line Loans. In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Revolving Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.
| 2.13 | Payments Generally; Administrative Agent’s Clawback. |
(ii) Payments by Borrower; Presumptions by Administrative Agent. Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or any L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or an L/C Issuer, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the
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Lenders or the L/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such L/C Issuer, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the OvernightEffective Federal Funds Rate.
A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (b) shall be prima facie evidence of the amount due.
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or participant, other than an assignment to the Borrower or any Subsidiary thereof (as to which the provisions of this Section shall apply).
Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.
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| 2.16 | Increase in Commitments. |
$1,750,000,000 (as reduced by the amount of any permanent reduction of the Commitments under the Facility). Each such Increase Request must be an aggregate minimum amount of $10,000,000 and integral multiples of $5,000,000 in excess thereof. The Administrative Agent, in consultation with the Borrower, shall manage all aspects of the syndication of such increase in the Commitments, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase in Commitments, and the allocations of the increase in the Commitments, among such existing Lenders and/or other banks, financial institutions and other institutional lenders. Promptly after delivery of the Increase Request to the Administrative Agent, the Borrower shall enter into an engagement letter with the Administrative Agent for the Facility governing, among other things, the syndication of such increase in the Commitments, and which shall include, among other things, the fees of the Lenders and the Administrative Agent with respect to such Increase Request. Any additional Commitments established pursuant to this Section shall be regarded as Commitments hereunder and accordingly shall have the same maturity date as, bear interest at the same rates as, and otherwise be subject to the same terms and conditions of, the Loans of the Facility outstanding hereunder at the time such additional Commitments are established. No Lender shall be obligated in any way whatsoever to increase its Commitment or provide a new Commitment, as applicable, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee.
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Borrower shall pay such fees to the Administrative Agent, for its own account and for the benefit of the Lenders providing such additional Commitments, as determined at the time of such increase.
| (d) | This Section shall supersede any provisions in Section 2.14 or 11.01 to the contrary. |
| 2.17 | Cash Collateral. |
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| 2.18 | Defaulting Lenders. |
(x) such payment is a payment of the principal amount of any Loans or L/C Borrowings in
respect of which that Defaulting Lender has not fully funded its appropriate share and (y) such Loans or L/C Borrowings were made at a time when the conditions set forth in Section 5.02 were
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satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Borrowings owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Borrowings owed to, that Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.18(a)(ii) shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.
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Simultaneously with the effectiveness of this Agreement, the Commitments of each of the Revolving Lenders shall be reallocated among the Revolving Lenders pro rata in accordance with their respective Commitments. To effect such reallocations, each Revolving Lender who had no Commitment prior to the effectiveness of this Agreement or whose Commitment upon the effectiveness of this Agreement exceeds its Commitment immediately prior to the effectiveness of this Agreement (each an “Assignee Lender”) shall be deemed to have purchased all right, title and interest in, and all obligations in respect of, the Commitments from the Revolving Lenders whose Commitments are less than their respective Commitment immediately prior to the effectiveness of this Agreement (each an “Assignor Lender”), so that the Commitments of each Revolving Lender will be as set forth on Schedule 1.01(A) attached hereto. Such purchases shall be deemed to have been effected by way of, and subject to the terms and conditions of, Assignment and Assumptions without the payment of any related assignment fee, and, except for Notes to be provided to the Assignor Lenders and Assignee Lenders in the principal amount of their respective Commitments, no other documents or instruments shall be, or shall be required to be, executed in connection with such assignments (all of which are hereby waived). The Assignor Lenders, the Assignee Lenders and the other Revolving Lenders shall make such cash settlements among themselves, through the Administrative Agent, as the Administrative Agent may direct (after giving effect to the making of any Loans to be made on the Closing Date and any netting transactions effected by the Administrative Agent) with respect to such reallocations and assignments so that the aggregate outstanding principal amount of Revolving Loans shall be held by the Revolving Lenders pro rata in accordance with the amount of the Commitments (determined without giving effect to any termination of Commitments effected by the making of any such Loans) of the Revolving Lenders.
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
| 3.01 | Taxes. |
| (b) | Payment of Other Taxes by the Borrower. Without limiting the provisions of subsection |
(a) above, the Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Laws.
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Document are subject to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) such Lender’s entitlement to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Lender by the Borrower pursuant to this Agreement or otherwise to establish such Lender’s status for withholding tax purposes in the applicable jurisdiction. 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 paragraphs (e)(ii)(A) and (ii)(B) of this Section 3.01) 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) | executed originals of Internal Revenue Service Form W-8ECI, |
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be prescribed by applicable Laws to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made.
| 3.02 | Illegality; Inability to Determine Rates. |
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Loans, such Lender shall then have a commitment only to make a Base Rate Loan when an Affected Eurodollar RateSOFR Loan is requested, and (ciii) such Lender’s Loans then outstanding as Affected Eurodollar RateSOFR Loans, if any, shall be converted automatically to Base Rate Loans (A) with respect to any Term SOFR Loans, on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by Law and (B) with respect to any Daily Simple SOFR Loans, immediately. If any such conversion or prepayment of an Affected Eurodollar RateSOFR Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, the Borrower shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.05.
| 3.03 | Benchmark Replacement Setting. |
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Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00
p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders and L/C Issuers without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.
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Rate or the Adjusted Daily Simple SOFR Rate, conversion to or continuation of Loans bearing interest based on USD LIBOR (including the Eurodollar Rate)the Adjusted Term SOFR Rate or the Adjusted Daily Simple SOFR Rate, as applicable, to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Loan of or conversion to Loans bearing interest atunder the Base Rate and (ii) any outstanding affected SOFR Loans will be deemed to have been converted to Base Rate Loans (A) with respect to any Term SOFR Loans, at the end of the applicable Interest Period and (B) with respect to any Daily Simple SOFR Loans, immediately. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the Base Rate.
| (h) | Certain Defined Terms. As used in this Section titled “Benchmark Replacement Setting”: |
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provided that, in the case of clause (1), such Unadjusted Benchmark Replacement is displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion; provided, further, that, in the case of an Other Benchmark Rate Election, the “Benchmark Replacement” shall mean the alternative set forth in clause (3) above and when such clause is used to determine the Benchmark Replacement in connection with the occurrence of an Other Benchmark Rate Election, the alternate benchmark rate selected by the Administrative Agent and the Borrower shall be the term benchmark rate that is used in lieu of a USD LIBOR-based rate in relevant other U.S. dollar-denominated syndicated credit facilities; provided, further, that, with respect to a Term SOFR Transition Event, on the applicable Benchmark Replacement Date, the “Benchmark Replacement” shall revert to and shall be determined as set forth in clause (1) of this definition. If the Benchmark Replacement as determined pursuant to clause (1), (2) or (3) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
Available Tenor | BenchmarkReplacement Adjustment* |
One-Month | 0.11448% (11.448 basis points) |
Three-Months | 0.26161% (26.161 basis points) |
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Six-Months | 0.42826% (42.826 basis points) |
* These values represent the ARRC/ISDA recommended spreadadjustmentvaluesavailablehere: xxxxx://xxxxxx.xxxxx.xx/xxxxxxxxxxxx/xxxxx/00/XXXX-Xxxxxxxxx-XXXXX -Xxxxxxxxx_Xxxxxxxxxxxx_00000000.xxx | |
provided that, if the then-current Benchmark is a term rate, more than one tenor of such Benchmark is available as of the applicable Benchmark Replacement Date and the applicable Unadjusted Benchmark Replacement will not be a term rate, the Available Tenor of such Benchmark for purposes of this definition of “Benchmark Replacement Adjustment” shall be deemed to be the Available Tenor that has approximately the same length (disregarding business day adjustments) as the payment period for interest calculated with reference to such Unadjusted Benchmark Replacement.
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For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) 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).
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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).
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| (xiv) | “Reference Time” with respect to any setting of the then-current Benchmark means |
(1) if such Benchmark is USD LIBOR, 11:00 a.m. (London time) on the day that is two London banking days preceding the date of such setting, and (2) if such Benchmark is not USD LIBOR, the time determined by the Administrative Agent in its reasonable discretion.
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| (xxiii) | “USD LIBOR” means the London interbank offered rate for U.S. dollars. |
| 3.04 | Increased Costs. |
| (a) | Increased Costs Generally. If any Change in Law shall: |
and the result of any of the foregoing shall be to increase the cost to such Lender of making, maintaining, continuing or converting to any Loan the interest on which is determined by reference to the EurodollarAdjusted Term SOFR Rate or the Adjusted Daily Simple SOFR Rate (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or such L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or such L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or such L/C Issuer, the Borrower will pay to such Lender or such L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or such L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered; provided that such Lender or L/C Issuer shall not be entitled to submit a claim for compensation hereunder unless such Person shall 72
have determined that the making of such claim is consistent with its general practices under similar circumstances in respect of similarly situated borrowers with credit agreements entitling it to make such claims (it being agreed that none of the L/C Issuers or Lenders shall be required to disclose any confidential or proprietary information in connection with such determination or the making of such claim).
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including any loss of anticipated profits and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained. The Borrower shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded.
| 3.06 | Mitigation Obligations; Replacement of Lenders. |
ARTICLE IV. [INTENTIONALLY OMITTED]
ARTICLE V. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
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of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
| (ii) | a Note executed by the Borrower in favor of each Lender requesting a Note; |
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| (c) | Any fees required to be paid on or before the Closing Date shall have been paid. |
Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 5.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
(a) and (b) of Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 7.01.
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Each Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Committed Loans to the other Type or a continuation of Eurodollar RateTerm SOFR Loans) submitted by the Borrower shall be deemed to be a representation and warranty that the conditions specified in Sections 5.02(a) and 5.02(b) have been satisfied on and as of the date of the applicable Credit Extension.
ARTICLE VI. REPRESENTATIONS AND WARRANTIES
Each of the Parent and the Borrower represents and warrants to the Administrative Agent and the Lenders that:
(ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party, and (c) is duly qualified and is licensed and, as applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license; except in each case referred to in clause (b)(i) or (c), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
| 6.05 | Financial Statements; No Material Adverse Effect. |
(ii) fairly present the financial condition of the Borrower and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (iii) show all
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material indebtedness and other liabilities, direct or contingent, of the Borrower and its Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and Indebtedness.
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deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Borrower or the applicable Loan Party operates, subject to such self-insurance reasonably acceptable to the Administrative Agent.
| 6.12 | ERISA Compliance. |
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reasonably be expected to result in liability to the Borrower or any of its Subsidiaries. All contributions required to be made with respect to a Non-U.S. Plan have been timely made. Neither the Borrower nor any of its Subsidiaries has incurred any obligation in connection with the termination of, or withdrawal from, any Non-U.S. Plan. The present value of the accrued benefit liabilities (whether or not vested) under each Non-U.S. Plan, determined as of the end of the Borrower’s most recently ended fiscal year on the basis of reasonable actuarial assumptions, did not exceed the current value of the assets of such Non-U.S. Plan allocable to such benefit liabilities.
| 6.14 | Margin Regulations; Investment Company Act. |
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ARTICLE VII. AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the Loan Parties shall, and shall (except in the case of the covenants set forth in Sections 7.01, 7.02, and 7.03) cause each Subsidiary to:
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setting forth in comparative form, as applicable, the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail, such consolidated statements to be certified by the chief executive officer, chief financial officer, treasurer or controller of the Parent as fairly presenting the financial condition, results of operations, shareholders’ equity and cash flows of the Parent and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes.
As to any information contained in materials furnished pursuant to Section 7.02(d), the Parent shall not be separately required to furnish such information under clause (a) or (b) above, but the foregoing shall not be in derogation of the obligation of the Borrower to furnish the information and materials described in clauses (a) and (b) above at the times specified therein.
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agency in any applicable non-U.S. jurisdiction) concerning any material investigation or other material inquiry by such agency regarding financial or other operational results of any Loan Party unless restricted from doing so by such agency;
Documents required to be delivered pursuant to Section 7.01(a) or (b) or Section 7.02(d) (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 listed on Schedule 11.02; or (ii) on which such documents 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 written 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.
Parent and Borrower hereby acknowledge that (a) Administrative Agent and/or the Arrangers will make available to the Lenders and L/C Issuers materials and/or information provided by or on behalf of Xxxxxx and Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to Parent, Borrower or their Affiliates, or the respective Equity Interests of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ Equity Interests. Parent and Borrower hereby agree that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof;
(x) by marking Borrower Materials “PUBLIC,” Parent and Borrower shall be deemed to have authorized Administrative Agent, Arrangers, L/C Issuers and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to Parent and Borrower or their Equity
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Interests for purposes of United States federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 11.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (z) Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.”
| 7.03 | Notices. Promptly notify the Administrative Agent and each Lender: |
| (a) | of the occurrence of any Default; |
| (c) | of the occurrence of any ERISA Event; and |
Each notice pursuant to this Section 7.03 shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to Section 7.03(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached.
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any event never permit to be created or exist in respect of any Unencumbered Pool Property or any part thereof any other or additional Lien or security interest other than Permitted Liens;
| 7.14 | Additional Guarantors; Release of Guarantors. |
$15,000,000 or more of Total Asset Value is attributable.
(A) simultaneously with its release from the Guaranty such Subsidiary will cease to be a Subsidiary or
(B) such Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding subsection (a); (ii) no Default shall then be in existence or would occur as a result of such release; (iii) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct on and as of such earlier date); and
(iv) the Administrative Agent shall have received such written notice at least 10 Business Days (or such shorter period as may be acceptable to the Administrative Agent) prior to the requested date of release. Delivery by the Borrower to the Administrative Agent of any such notice shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request. Unless the Administrative Agent notifies the Borrower otherwise, such Guarantor shall be deemed to have been released from its Guaranty upon the later to occur of ten (10) Business Days following the Administrative Agent’s receipt of such notice and the date set forth in such notice as the
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requested date of release. Upon the Borrower’s written request, the Administrative Agent shall execute such documents as the Borrower may reasonably request (and at the expense of the Borrower) to evidence the release of a Guarantor from the Guaranty.
ARTICLE VIII. NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the Loan Parties shall not, nor shall they permit any Subsidiary to, directly or indirectly:
| 8.01 | [Intentionally Omitted]. |
| 8.02 | [Intentionally Omitted]. |
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applicable, shall be the continuing or surviving Person, or (2) any other Person; provided that, with respect to the foregoing subclause (2), if such Loan Party owns an Unencumbered Pool Property and is not the surviving entity, then such Property shall cease to be an Unencumbered Pool Property and (ii) any Subsidiary that is not a Loan Party may merge with (1) any Loan Party so long as such Loan Party shall be the continuing or surviving Person, or (2) any other Person; provided that, with respect to the foregoing subclause (2), unless such Subsidiary is a Wholly Owned Subsidiary and merges with another Wholly Owned Subsidiary, if such Subsidiary owns an Unencumbered Pool Property and is not the surviving entity, then such Property shall cease to be an Unencumbered Pool Property;
Nothing in this Section shall be deemed to prohibit the sale or leasing of Property or portions of Property in the ordinary course of business.
| (b) | Dispositions of inventory in the ordinary course of business; |
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| 8.10 | [Intentionally Omitted]. |
| 8.11 | [Intentionally Omitted]. |
| 8.12 | [Intentionally Omitted]. |
| 8.14 | Financial Covenants. Not, directly or indirectly, permit: |
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(x) such percentage does not exceed sixty percent (60%) after the third fiscal quarter immediately following the fiscal quarter in which such Material Acquisition was completed, (y) the Borrower shall not maintain compliance with this subsection (a) in reliance on this proviso more than twice during the term of this Agreement and (z) such percentage is not greater than sixty-five percent (65%) at any time.
| (c) | [Intentionally Omitted]. |
| (e) | [Intentionally Omitted]. |
ARTICLE IX. EVENTS OF DEFAULT AND REMEDIES
| 9.01 | Events of Default. Any of the following shall constitute an Event of Default: |
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to be performed or observed and such failure continues for 30 days, or such longer period of time as is reasonably necessary to cure such failure, provided that the Loan Party has commenced and is diligently prosecuting the cure of such failure and cures it within an additional 30 day period; or
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execution or similar process is issued or levied against all or any material part of the property of any such Person and is not released, vacated or fully bonded within 30 days after its issue or levy; or
(ii) there is or arises Unfunded Pension Liability for all Plans (not taking into account Plans with negative Unfunded Pension Liability) in an aggregate amount exceeding $100,000,000, or (iii) there is or arises any Withdrawal Liability as regards the Borrower or any ERISA Affiliate in an aggregate amount exceeding $100,000,000; or
| (m) | Change of Control. There occurs any Change of Control; or |
| (n) | REIT Status of Parent. Parent ceases to be treated as a REIT. |
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provided, however, that upon the occurrence of an Event of Default described in Section 9.01(h) with respect to the Borrower, the obligation of each Lender to make Loans and any obligation of each L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender.
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 and amounts payable under Article III) 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) payable to the Lenders and the L/C Issuers (including fees, charges and disbursements of counsel to the respective Lenders and L/C Issuers and amounts payable under Article III), 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 accrued and unpaid Letter of Credit Fees and interest on the Loans, L/C Borrowings and interest on other Obligations, ratably among the Lenders and the L/C Issuers 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 L/C Borrowings ratably among the Lenders and the L/C Issuers in proportion to the respective amounts described in this clause Fourth held by them;
Fifth, to the Administrative Agent for the account of the applicable L/C Issuers, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit to the extent not otherwise Cash Collateralized by the Borrower pursuant to Sections 2.04 and
2.17; and
Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Law.
Subject to Sections 2.04(c) and 2.17, amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit
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have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above.
ARTICLE X. ADMINISTRATIVE AGENT
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The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 11.01 and 9.02) or (ii) in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be fully justified in failing or refusing to take any action under this Agreement or any of the other Loan Documents unless it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense which may be incurred by the Administrative Agent by reason of taking or continuing to take any such action. The Administrative Agent shall not be deemed to have knowledge of any Default unless and until notice describing such Default and stating that such notice is a “notice of default” is given to the Administrative Agent by the Borrower, a Lender or an L/C Issuer.
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 thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article V or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. No claim may be made by any Lender, any L/C Issuer, the Administrative Agent, or any of their Related Parties against the Administrative Agent, any Lender, any L/C Issuer or any of their Related Parties, or any of them, for any special, indirect or consequential damages or, to the fullest extent permitted by Law, for any punitive damages in respect of any claim or cause of action (whether based on contract, tort, statutory liability, or any other ground) based on, arising out of or related to any Loan Document or the transactions contemplated hereby or any act, omission or event occurring in connection therewith, including the negotiation, documentation, administration or collection of the Loans, and the Administrative Agent and each Lender hereby waives, releases and agrees never to sue upon any claim for any such damages, whether such claim now exists or hereafter arises and whether or not it is now known or suspected to exist in its favor. Each Lender hereby agrees that, except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder, the Administrative Agent and each of its Related Parties shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, property, condition (financial or otherwise), prospects or creditworthiness of any of the Loan Parties that may come into the possession of the Administrative Agent or any of its Related Parties.
In the absence of gross negligence or willful misconduct, the Administrative Agent shall not be liable for any error in computing the amount payable to any Lender or any L/C Issuer whether in respect of any Loan, any fees or any other amounts due to the Lenders or any L/C Issuer under this Agreement. In the event an error in computing any amount payable to any Lender or any L/C Issuer is made, the Administrative Agent, the Borrower and each affected Lender shall, forthwith upon discovery of such error, make such adjustments as shall be required to correct such error, and any compensation therefor will be calculated at the Effective Federal Funds Open Rate.
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| 10.06 | Resignation of Administrative Agent. |
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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 the retiring Administrative Agent was acting as Administrative Agent.
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and each L/C Issuer to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders and the L/C Issuers, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.10 and 11.04.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or any L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or any L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or any L/C Issuer in any such proceeding.
(ii) that is sold or to be sold as part of or in connection with any sale permitted hereunder or under any other Loan Document, or (iii) subject to Section 11.01, if approved, authorized or ratified in writing by all Lenders;
| (b) | [intentionally omitted]; and |
Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 10.10.
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| 10.13 | Erroneous Payments. |
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as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or L/C Issuer, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
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applicable Lender or L/C Issuer shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender or L/C Issuer (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender or L/C Issuer and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or L/C Issuer under the Loan Documents with respect to each Erroneous Payment Return Deficiency (the “Erroneous Payment Subrogation Rights”).
ARTICLE XI. MISCELLANEOUS
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| (a) | waive any condition set forth in Section 5.01(a) without the written consent of each |
Lender;
provided further, that (i) no amendment, waiver or consent shall, unless in writing and signed by the applicable L/C Issuers in addition to the Lenders required above, affect the rights or duties of the applicable L/C Issuers under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Swing Line Lenders in addition to the Lenders required above, affect the rights or duties of the Swing Line Lenders under this Agreement; (iii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document; and (iv) a Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected
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with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) a Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the consent of such Defaulting Lender.
| 11.02 | Notices; Effectiveness; Electronic Communication. |
Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by telecopier 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 and other communications delivered through electronic communications to the extent provided in subsection (b) below, shall be effective as provided in such subsection (b).
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement); provided that if such notice 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, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the
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intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.
Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any Lender, any L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrower’s or the Administrative Agent’s transmission of Borrower Materials through the Internet, 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, any L/C Issuer or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).
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Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 9.02 for the benefit of all the Lenders and the L/C Issuers; provided, however, that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) any L/C Issuer or any Swing Line Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as an L/C Issuer or a Swing Line Lender, as the case may be) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in accordance with Section 11.08 (subject to the terms of Section 2.14), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided, further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 9.02 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.14, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.
| 11.04 | Expenses; Indemnity; Damage Waiver. |
(B) in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit).
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connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents (including in respect of any matters addressed in Section 3.01), (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by any L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by the Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by the Borrower or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if the Borrower or such other Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction.
(b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final and nonappealable judgment of a court of competent jurisdiction.
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| 11.06 | Successors and Assigns. |
| (i) | Minimum Amounts. |
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$5,000,000 unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); provided, however, that concurrent assignments to members of an Assignee Group and concurrent assignments from members of an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount has been met.
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Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement 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 3.01, 3.04, 3.05, and 11.04 with respect to facts and circumstances occurring prior to the effective date of such assignment. Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection 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 subsection (d) of this Section.
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inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 11.01 that affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.08 as though it were a Lender; provided such Participant agrees to be subject to Section 2.14 as though it were a Lender.
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thereto (including the right to require the Revolving Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.04(c)). If a Swing Line Xxxxxx resigns, it shall retain all the rights of a Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Revolving Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.05(c). Upon the appointment of a successor L/C Issuer and/or successor Swing Line Lender, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or retiring Swing Line Lender, as the case may be, and (b) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring L/C Issuer and/or retiring Swing Line Lender to effectively assume the obligations of retiring L/C Issuer and/or retiring Swing Line Lender with respect to such Letters of Credit.
Each of the Administrative Agent, the Lenders and the L/C Issuers acknowledges that (a) the Information may include material non-public information concerning the Borrower or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable Law, including United States federal and state securities Laws.
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| (e) | such assignment does not conflict with applicable Laws. |
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
| 11.14 | Governing Law; Jurisdiction; Etc. |
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MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON 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 AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
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numbers of the Loan Parties and other information that will allow such Lender or the Administrative Agent, as applicable, to identify the Loan Parties in accordance with the Patriot Act. The Borrower shall, promptly following a request by the Administrative Agent or any Lender, provide all documentation and other information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.
| 11.20 | Effect on Existing Credit Agreement. |
| 11.21 | Acknowledgement and Consent to Bail-In of Affected Financial Institutions. |
Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
| (b) | the effects of any Bail-in Action on any such liability, including, if applicable: |
| (i) | a reduction in full or in part or cancellation of any such liability; |
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accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
| 11.22 | Acknowledgement Regarding Any Supported QFCs. |
To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any hedge agreement or any other agreement or instrument that is a QFC (such support, “QFC Credit Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
| (b) | As used in this Section 11.22, the following terms have the following meanings: |
| (ii) | “Subject Entity” means any of the following: |
| (1) | a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); |
| (2) | a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or |
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| (3) | a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). |
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EXHIBIT A
[See attached]
EXHIBIT A
FORM OF COMMITTED LOAN NOTICE [DATE]
To: | PNC Bank, National Association, as Administrative Agent Mail Stop: P7-PFSC-04-T |
000 Xxxxx Xxxxxx, 0xx Xxxxx Xxxxxxxxxx, XX 00000 Attention: Xxxxxx Xxxxxxx Telephone: 000-000-0000
Telecopier: 000-000-0000
E-mail: xxxxxx.xxxxxxx@xxx.xxx
Ladies and Gentlemen:
Reference is made to that certain Third Amended and Restated Revolving Credit Agreement dated as of December 15, 2021 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement”; capitalized terms used but not defined herein shall have the meanings given to them in the Agreement), among Agree Realty Corporation, a Maryland corporation (the “Parent”), Agree Limited Partnership, a Delaware limited partnership (the “Borrower”), the Lenders from time to time party thereto, PNC Bank, National Association, as Administrative Agent, a Swing Line Lender and an L/C Issuer, and Citibank, N.A. and Xxxxx Fargo Bank, National Association, each as a Swing Line Lender and an L/C Issuer.
Pursuant to Section [2.01][2.02] of the Agreement, the undersigned hereby requests:
| 1. | [Select One] |
| ◻ | A Revolving Loan Borrowing |
| ◻ | A conversion of Committed Loans from Loans to Loans for the Revolving Loans |
| ◻ | A continuation of Term SOFR Loans for the Revolving Loans |
| 2. | On(a Business Day)1 |
| 3. | In the principal amount of $ |
| 4. | Comprised of [Base Rate Loans][Daily Simple SOFR Loans][Term SOFR Loans] |
| 5. | With an Interest Period of months [For Term SOFR Loans only] |
[Use following paragraph for each Credit Extension (other than a request for conversion of Committed Loans to the other Type or a continuation of Term SOFR Loans)]
Pursuant to Section 5.02 of the Agreement, the undersigned hereby certifies:
1 The requested date of the Borrowing, conversion or continuation, as the case may be, of any SOFR Loans must be a U.S. Government Securities Business Day.
| 1. | The representations and warranties of the Borrower and each other Loan Party contained in Article VI of the Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection with the Loan Documents, are true and correct in all material respects on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that the representations and warranties contained in subsections (a) and (b) of Section 6.05 of the Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01 of the Agreement. |
| 2. | No Default exists or would result from the proposed Credit Extension or from the application of the proceeds thereof. |
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AGREE LIMITED PARTNERSHIP, a Delaware limited partnership
By: | Agree Realty Corporation, a Maryland corporation, its general partner |
By: Name: Title:
[Signature Page to Committed Loan Notice]
