350,000,000 SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of September 27, 2019 among iSTAR INC., THE BANKS LISTED HEREIN, and JPMORGAN CHASE BANK, N.A., as Administrative Agent JPMORGAN CHASE BANK, N.A., BOFA SECURITIES, INC., and BARCLAYS...
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$350,000,000 SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of September 27, 2019 among iSTAR INC., THE BANKS LISTED HEREIN, and JPMORGAN CHASE BANK, N.A., as Administrative Agent JPMORGAN CHASE BANK, N.A., BOFA SECURITIES, INC., and BARCLAYS BANK PLC, as Joint Lead Arrangers and Joint Bookrunners
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SCHEDULES: SCHEDULE 1.1A Commitments SCHEDULE 1.1B Collateral and Covered Assets List SCHEDULE 1.1D Excluded Assets SCHEDULE 4.4(d) Existing Indebtedness of the Covered Subsidiaries SCHEDULE 4.6(a) Multiemployer Plans/Collective Bargaining Agreements SCHEDULE 4.27 Indirect Ownership of Covered Assets SCHEDULE 4.28 Covered Parties SCHEDULE 4.29 Filing Jurisdictions EXHIBITS: EXHIBIT A Form of Affiliate Subordination Agreement EXHIBIT B Form of Borrowing Base Certificate EXHIBIT C Form of Negative Pledge Agreement EXHIBIT D Form of Note EXHIBIT E Form of Notice of Borrowing EXHIBIT F Projections EXHIBIT G Form of Security Agreement EXHIBIT H Form of Assignment and Assumption EXHIBITS I Forms of Prepayment Notice EXHIBITS J 1-4 Forms of U.S. Tax Certificates EXHIBIT K Notice Addresses
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) dated as of September 27, 2019, among iSTAR INC., a Maryland Corporation (the “Borrower”), the BANKS listed on the signature pages hereof or otherwise from time to time parties hereto, and JPMORGAN CHASE BANK, N.A., as the Administrative Agent. WITNESSETH WHEREAS, the Borrower, the Banks and the Administrative Agent are parties to the Amended and Restated Credit Agreement dated as of September 27, 2017 (as heretofore amended, supplemented or otherwise modified, the “Existing Credit Agreement”); WHEREAS, the Borrower has requested that the Banks, among other things, extend the maturity date of the Existing Credit Agreement; and WHEREAS, the Banks are willing to do so on the terms and conditions set forth herein; NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree to amend and restate the Existing Credit Agreement in its entirety as follows: ARTICLE I DEFINITIONS Section 1.1. Definitions. The following terms, as used herein, have the following meanings: “Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as the administrative agent hereunder, and its permitted successors in such capacity in accordance with the terms of this Agreement. “Administrative Questionnaire” means with respect to each Bank, an administrative questionnaire in the form prepared by the Administrative Agent and submitted to the Administrative Agent (with a copy to the Borrower) duly completed by such Bank. “Affiliate”, as applied to any Person, means any other Person that directly or indirectly controls, is controlled by, or is under common control with, that Person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power to vote ten percent (10.0%) or more of the equity securities having voting power for the election of directors of such Person or otherwise to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting equity securities or by contract or otherwise. “Affiliate Subordination Agreement” means a Second Amended and Restated Affiliate Subordination Agreement substantially in the form of Exhibit A pursuant to which intercompany obligations and advances owed by the Borrower are subordinated to the Obligations. “Agents” means, collectively, the Administrative Agent and the Arrangers.
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“Agreement” means this Second Amended and Restated Credit Agreement as the same may from time to time hereafter be amended, restated, supplemented or otherwise modified. “Anti-Corruption Laws” means all laws, rules and regulations of any jurisdiction applicable to the Borrower or any of its Subsidiaries from time to time concerning or relating to bribery, money laundering or corruption. “Applicable Advance Rate” means as of any date of determination as to any Borrowing Base Asset: (i) 65%, if the relevant BPO with respect to such Borrowing Base Asset is less than 24 months old as of such date of determination, or if the Borrower is within the 90-day grace period for delivery of a new BPO provided in Section 5.1(k); (ii) 60%, if the relevant BPO with respect to such Borrowing Base Asset is 24 months old or older as of such date of determination; (iii) irrespective of the foregoing clauses (i) and (ii), 50% for any Credit Tenant Lease Asset if (x) the vacancy rate with respect to such Credit Tenant Lease Asset is greater than 20% as of such date of determination, (y) the weighted average remaining lease term with respect to such Credit Tenant Lease Asset is less than two (2) years as of such date of determination or (z) the Borrower is not receiving any income from such Credit Tenant Lease Asset as of such date of determination but such Credit Tenant Lease Asset has not become a Non-Cash Flow Tenant Lease Asset as of such date of determination; (iv) irrespective of the foregoing clauses (i), (ii) and (iii), 0%, if such Credit Tenant Lease Asset is a Non-Cash Flow Credit Tenant Lease Asset; (v) irrespective of the foregoing clauses (i) and (ii), for any Construction Loan, (A) if the LTC is less than or equal to 40%, (x) 60%, if such Construction Loan is wholly-owned by a Pledged Subsidiary and (y) 55%, if such Construction Loan is partially-owned by a Pledged Subsidiary and (B) if the LTC is greater than 40%, (x) 50%, if such Construction Loan is wholly- owned by a Pledged Subsidiary and (y) 45%, if such Construction Loan is partially-owned by a Pledged Subsidiary; and (vi) irrespective of the foregoing clauses (i) and (ii), for any Loan Asset that is not a Construction Loan, (A) 70%, if the Look-Through LTV is less than or equal to 45% and (B) 65%, if the Look-Through LTV is greater than 45%; provided that, if on any date of determination any Borrowing Base Asset meets the requirements for an Applicable Advance Rate based upon the foregoing criteria that is different than the Applicable Advance Rate as of the immediately preceding date of determination, such different Applicable Advance Rate shall apply. “Applicable Lending Office” means with respect to any Bank, (i) in the case of its Base Rate Loans, its Domestic Lending Office and (ii) in the case of its Eurodollar Loans, its Eurodollar Lending Office. “Applicable Margin” means with respect to each Loan, the respective percentages per annum determined, at any time, based on the range into which the Credit Rating then falls, in accordance with the table set forth below. Any change in the Credit Rating causing it to move to a different range on - 2-
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the table shall effect an immediate change in the Applicable Margin. In the event that the Borrower has two (2) or more Credit Ratings that are not equivalent, the Applicable Margin shall be determined by (A) if the difference between such Credit Ratings is one ratings category, the Applicable Margin shall be the rate per annum that would be applicable if the higher of the Credit Ratings were used, and (B) if the difference between such Credit Ratings is two or more ratings categories, the Applicable Margin shall be the rate per annum that would be applicable if the median of the applicable Credit Ratings were used. In the event that the Borrower has only one (1) Credit Rating, the Applicable Margin shall be determined by such Credit Rating. In the event that the Borrower does not have a Credit Rating, the Applicable Margin shall be the highest percentage per annum set forth on the table below. On the Closing Date, the Credit Rating of the Borrower is BB-/Ba3/BB-. Range of the Borrower’s Applicable Margin for Base Applicable Margin for Credit Rating Rate Loans Eurodollar Loans (S&P/Xxxxx’x/Xxxxx Ratings) (% per annum) (% per annum) 1.00% 2.00% 1.25% 2.25% 1.50% 2.50% “Appraisal” means an appraisal, reasonably satisfactory to the Administrative Agent, setting forth the appraised value of a Borrowing Base Asset, which appraisal shall be prepared by an appraiser engaged by the Administrative Agent. “Appraisal Grace Period” means, as to a Borrowing Base Asset, forty-five (45) calendar days following the day the Administrative Agent engages an appraiser to complete an Appraisal for such Borrowing Base Asset. “Appraised Value” means, as to any Borrowing Base Asset, the appraised value of such Borrowing Base Asset, as determined by the most recently delivered Appraisal for such Borrowing Base Asset. “Approved Electronic Platform” has the meaning assigned to it in Section 7.11(a). “Arrangers” means JPMorgan Chase Bank, N.A., BofA Securities, Inc. and Barclays Bank PLC, in their respective capacities as Joint Lead Arranger and Joint Bookrunner hereunder. “Assignee” has the meaning set forth in Section 9.6(c). “Assignment and Assumption” means an Assignment and Assumption, in substantially the form of Exhibit H hereto or any other form (including electronic records generated by the use of an electronic platform) approved by the Administrative Agent. “Available Commitment” means as to any Bank at any time, an amount equal to the excess, if any, of (a) such Bank’s Commitment then in effect over (b) such Bank’s Revolving Loans then outstanding. “Average Utilization” means for any period, an amount, expressed as a percentage, equal to (a) the daily average Total Revolving Loans for such period divided by (b) the daily average Total Commitments for such period. “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution. - 3-
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“Bail-In Legislation” means, 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 for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule. “Bankruptcy Event” means with respect to any Person, such Person becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof, provided, further, that such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person. “Banks” means each entity listed on the signature pages hereof as a “Bank”, each Assignee which becomes a Bank pursuant to Section 9.6(c), and their respective successors. For purposes of this Agreement, BofA Securities, Inc. shall not constitute a “Bank”. “Base Rate” means, for any day, a rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Rate in effect on such day plus ½ of 1% and (c) the Eurodollar Rate on such day (or, if such day is not a Business Day, the next preceding Business Day) for a deposit in Dollars with a maturity of one month plus 1.0%. Any change in the Base Rate due to a change in the Prime Rate, the Federal Funds Rate or such Eurodollar Rate shall be effective as of the opening of business on the day of such change in the Prime Rate, the Federal Funds Rate or such Eurodollar Rate, respectively. If the Base Rate is being used as an alternate rate of interest pursuant to Section 8.1 hereof, then the Base Rate shall be the greater of clause (a) and (b) above and shall be determined without reference to clause (c) above. For the avoidance of doubt, if the Base Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement. “Base Rate Borrowing” means a Borrowing in Dollars the interest on which is calculated by reference to the Base Rate in accordance with the provisions of this Agreement. “Base Rate Loan” means a Loan in Dollars to be made by a Bank the interest on which is calculated by reference to the Base Rate in accordance with the provisions of this Agreement. “Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code, or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan.” “Book Value” means, as to any asset as of any date of determination, the book value of such asset at the end of the most recently ended fiscal quarter as determined in accordance with GAAP, provided that depreciation shall be added back to such book value with respect to Credit Tenant Lease Assets, but such book value with respect to all assets shall be net of any asset specific reserves and impairments. - 4-
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“Borrower” has the meaning set forth in the preamble hereto. “Borrowing” has the meaning set forth in Section 1.3. “Borrowed” shall have a correlative meaning. “Borrowing Base” means, as of any date of determination, the sum of the Borrowing Base Value of each Borrowing Base Asset as of such date as determined by the most recent Borrowing Base Certificate and adjusted as reflected in the Monthly Certificate; provided that, the Borrowing Base shall be subject to the following adjustments: (i) no single Borrowing Base Asset (based on the Borrowing Base Value of such Borrowing Base Asset) shall comprise in excess of 25% of the Borrowing Base at the time such asset is included as a Borrowing Base Asset (and any such excess shall be disregarded for purposes of determining the Borrowing Base); (ii) the aggregate Borrowing Base Value of the Three Largest Assets shall not exceed (x) at any time during a Concentration Test Increase Period, 75% of the Borrowing Base and (y) at any other time, 55% of the Borrowing Base (and in each case of the foregoing clauses (x) and (y) any such excess shall be disregarded for purposes of determining the Borrowing Base); (iii) the aggregate Borrowing Base Value of all Non-Cash Flow Credit Tenant Lease Assets shall not exceed 5% of the Borrowing Base at any one time (and any such excess shall be disregarded for purposes of determining the Borrowing Base); (iv) the aggregate Borrowing Base Value of all Limited Term Credit Tenant Lease Assets shall not exceed 20% of the Borrowing Base at such date of determination (and any such excess shall be disregarded for purposes of determining the Borrowing Base); (v) the aggregate Borrowing Base Value of (x) Credit Tenant Lease Assets (i) with a vacancy rate greater than 20% or (ii) with a weighted average remaining lease term of less than two (2) years in respect of the underlying leases with respect to such Credit Tenant Lease Asset as of such date of determination or (y) Borrowing Base Assets with respect to hospitality and healthcare related stabilized assets shall not, in the aggregate for all such assets described in the foregoing clauses (x) and (y), exceed 35% of the Borrowing Base at such date of determination (and any such excess shall be disregarded for purposes of determining the Borrowing Base); (vi) at all times there shall be no less than ten (10) assets included as Borrowing Base Assets; and (vii) the aggregate Borrowing Base Value of all Construction Loans shall not exceed 20% (the “Construction Basket Percentage”) of the Borrowing Base at such date of determination (and any such excess shall be disregarded for purposes of determining the Borrowing Base), provided that if the Total Corporate Leverage Ratio is less than 2.50 to 1.00, the Construction Basket Percentage shall be 25% of the Borrowing Base at such date of determination (and any such excess shall be disregarded for purposes of determining the Borrowing Base), provided further that if the Borrower shall not have delivered the reporting required under Section 5.1(c)(I)(iii) within the time period set forth therein, the Construction Basket Percentage shall be reduced to 20%). “Borrowing Base Assets” means, as of any date of determination, the Eligible Loan Assets and Eligible Credit Tenant Lease Assets constituting Collateral and Covered Assets and included - 5-
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in the Borrowing Base Certificate delivered on the Closing Date pursuant to Section 3.1(o) and, thereafter, pursuant to Section 5.1(i). “Borrowing Base Certificate” means a certificate, signed and certified as accurate and complete by a senior financial officer of the Borrower, in substantially the form of Exhibit B. “Borrowing Base Value” means, with respect to any Borrowing Base Asset as of any date of determination, the product of (x) the Applicable Advance Rate for such Borrowing Base Asset as of such date and (y) the Designated Valuation Amount of such Borrowing Base Asset as of such date; provided that, the Borrowing Base Value of any Borrowing Base Asset shall be recalculated upon a material amendment or extension of the underlying lease or loan of such Borrowing Base Asset (including, in the case of a Construction Loan, a material increase in the scope or budget in respect of the project that is the subject of such Construction Loan), or the execution of a new lease or loan with respect thereto and reflected in an updated BPO or subsequent Monthly Certificate or Borrowing Base Certificate, in each case delivered pursuant to Section 5.1. “Borrowing Date” means any Business Day specified by the Borrower as a date on which the Borrower requests the relevant Banks to make Loans hereunder. “BPO” means as to any Borrowing Base Asset, a broker’s price opinion, determined in accordance with standard market practices and upon reasonable assumptions, with respect to such Borrowing Base Asset provided by a BPO Broker. “BPO Broker” shall mean HFF, Inc. and its affiliates, or such other broker reasonably acceptable to the Borrower and the Administrative Agent. “BPO Value” means, as to any Borrowing Base Asset that is a Credit Tenant Lease Asset, on any date of determination, the valuation of such Borrowing Base Asset at the time of inclusion thereof in the Borrowing Base as determined by the most recent BPO delivered in accordance with Section 5.1(k) with respect to such Borrowing Base Asset as of such date of determination; provided that, if the BPO Value of such Borrowing Base Asset is on such date of determination more than 100% of the Book Value of such Borrowing Base Asset, the BPO Value of such Borrowing Base Asset shall be the lower of such BPO Value and 130% of such Book Value. “Business Day” means any day except a Saturday, Sunday or other day on which commercial banks in New York City are authorized by law to close. “Capital Lease” as applied to any Person, means any lease of any property (whether real, personal or mixed) by that Person as lessee which, in conformity with GAAP, is or should be accounted for as a capital lease on the balance sheet of that Person. “Cash and Cash Equivalents” means (a) cash; (b) marketable direct obligations issued or unconditionally guaranteed by the United States Government or issued by an agency thereof and backed by the full faith and credit of the United States, in each case maturing within one (1) year after the date of acquisition thereof; (c) marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within ninety (90) days after the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from any two of S&P, Xxxxx’x or Fitch (or, if at any time no two of the foregoing shall be rating such obligations, then from such other nationally recognized rating services acceptable to the Administrative Agent); (d) commercial paper (foreign and domestic) or master notes, other than commercial paper or master notes issued by the Borrower or any of its Affiliates, and, at the time of - 6-
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Credit Ratings that are not equivalent, the Commitment Fee Rate shall be determined by (A) if the difference between such Credit Ratings is one ratings category, the Commitment Fee Rate shall be the rate per annum that would be applicable if the higher of the Credit Ratings were used, and (B) if the difference between such Credit Ratings is two or more ratings categories, the Commitment Fee Rate shall be the rate per annum that would be applicable if the median of the applicable Credit Ratings were used. In the event that the Borrower has only one (1) Credit Rating, the Commitment Fee Rate shall be determined by such Credit Rating. In the event that the Borrower does not have a Credit Rating, the Commitment Fee Rate shall be the highest percentage per annum set forth on the table below. On the Closing Date, the Credit Rating of the Borrower is BB-/B1/BB-. Range of the Borrower’s Credit Rating Commitment Fee Rate (S&P/Xxxxx’x/Fitch Ratings) (% per annum) 0.25% 0.35% 0.45% “Communications” has the meaning assigned to it in Section 7.11(c). “Concentration Test Holiday Period” means: (i) with respect to a Concentration Test Increase Initial Notice, the period of ninety (90) days from and after the delivery by the Borrower to the Administrative Agent of such Concentration Test Increase Initial Notice or, if shorter, the Appraisal Grace Period for any of the Three Largest Assets; (ii) with respect to a Concentration Test Increase Renewal Notice, as to a Borrowing Base Asset that is one of the Three Largest Assets, the period of ninety (90) days from and after the last day of the twelve-month anniversary of the delivery of the then existing Appraisal for such Borrowing Base Asset or, if shorter, the Appraisal Grace Period for such Borrowing Base Asset; and (iii) with respect to a Concentration Test Increase Substitution Notice, as to a Borrowing Base Asset that is a new Three Largest Asset, the period of ninety (90) days from and after the delivery by the Borrower to the Administrative Agent of such Concentration Test Increase Substitution Notice for such Borrowing Base Asset or, if shorter, the Appraisal Grace Period for such Borrowing Base Asset. “Concentration Test Increase Initial Notice” means the first written notice delivered by the Borrower to the Administrative Agent requesting an increase to the Borrowing Base concentration limit of the Three Largest Assets described in clause (ii) of the definition of “Borrowing Base”, which shall include and constitute such notice for all. The Borrower may deliver a Concentration Test Increase Initial Notice no more than once per twelve-month period and a Concentration Test Increase Initial Notice must be a notice for all of the Three Largest Assets. “Concentration Test Increase Period” means the period during which, as to each Borrowing Base Asset that is one of the Three Largest Assets, one of the following shall have been satisfied: (i) an Appraisal shall have been delivered at any time in the prior twelve-month period with respect to such Borrowing Base Asset; or - 8-
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(ii) after proper delivery of a Concentration Test Increase Initial Notice, a Concentration Test Increase Renewal Notice or a Concentration Test Increase Substitution Notice to the Administrative Agent, as the case may be, (A) the Concentration Test Holiday Period shall be in effect or (B) if, prior to the end of the Concentration Test Holiday Period, the Administrative Agent shall have engaged an appraiser to complete an Appraisal with respect to such Borrowing Base Asset, the Appraisal Grace Period shall be in effect for such Borrowing Base Asset. “Concentration Test Increase Renewal Notice” means, at any time when the Concentration Test Increase Period is in effect and clause (i) under its definition is satisfied, a written notice delivered by the Borrower to the Administrative Agent requesting an extension of the Concentration Test Increase Period no later than fifteen (15) Business Days prior to the end of the period when clause (i) under its definition is satisfied. “Concentration Test Increase Substitution Notice” means, at any time when the Concentration Test Increase Period is in effect and the Borrower seeks to include a Borrowing Base Asset as a new Three Largest Asset, a written notice delivered by the Borrower to the Administrative Agent requesting the continuation of the Concentration Test Increase Period and the inclusion of such Borrowing Base Asset as a new Three Largest Asset for purposes thereof. “Consolidated Cash Flow” means as of any date of determination, for the period of four fiscal quarters ended on such date of determination on a consolidated basis in accordance with GAAP, the sum, without duplication, of (a) cash flows from operating activities of the Borrower and its Consolidated Subsidiaries for such period, plus (b) repayments and collections of loans, plus (c) net proceeds from the sale/monetization of loans, real estate and other investments of the Borrower and its Consolidated Subsidiaries for such period, plus (d) distributions from other investments of the Borrower and its Consolidated Subsidiaries for such period, plus (e) cash interest payments paid on debt of the Borrower and its Consolidated Subsidiaries for such period, plus (f) Taxes paid in Cash by the Borrower and its Consolidated Subsidiaries for such period, in each case as reflected in the Borrower’s consolidated statements of cash flow for such period in the form delivered pursuant to Section 5.1(a) and (b). “Consolidated Coverage Ratio” means, for each date of determination set forth in Section 5.9(a), the ratio of (a) Consolidated Cash Flow as of such date of determination to (b) Consolidated Fixed Charges as of such date of determination. “Consolidated Fixed Charges” means as of any date of determination, for the period of four fiscal quarters ended on such date of determination, the sum of (a) the total cash interest expense (including imputed interest expense attributable to Capital Leases) of the Borrower and its Consolidated Subsidiaries on all outstanding Indebtedness of the Borrower and its Consolidated Subsidiaries for such period (assuming for purposes of determining such interest expense that the Total Commitments have been fully Borrowed hereunder during such period) determined in accordance with GAAP and (b) total cash dividends on preferred units payable by the Borrower during such period. “Consolidated Subsidiary” means at any date (i) any Covered Subsidiary and (ii) any other Subsidiary or other entity which is consolidated with the Borrower in accordance with GAAP. “Consolidated Tangible Net Worth” means, at any time, the tangible net worth of the Borrower, on a consolidated basis, determined in accordance with GAAP. “Construction Loan” means a Loan Asset that is a loan or participation in a loan made for the construction or development of real property owned by the borrower thereof and secured at such time - 9-
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by a Mortgage on such real property or secured by an interest in a special purpose entity substantially similar to the organizational and corporate structure and documentation of the Covered Subsidiaries that directly or indirectly owns the real property, in each case the term of which loan shall not exceed five years; provided, that upon issuance of a temporary certificate of occupancy related to the underlying real property, the loan shall qualify as a Loan Asset that is not a Construction Loan for so long as a temporary or final certificate of occupancy is in effect (including pursuant to any renewals thereof). “Contingent Obligation” as to any Person means, without duplication, (i) any contingent obligation of such Person required to be shown on such Person’s balance sheet in accordance with GAAP which is not otherwise Indebtedness, and (ii) any obligation required to be disclosed in accordance with GAAP in the footnotes to such Person’s financial statements, guaranteeing partially or in whole any Non- Recourse Indebtedness, lease, dividend or other obligation including guarantees of completion and guarantees of representations and warranties, provided, however, Contingent Obligations shall not include contractual indemnities (including, without limitation, any indemnity or price-adjustment provision relating to the purchase or sale of securities or other assets) and guarantees of non-monetary obligations (other than as described above) which have not yet been called on or quantified, of such Person or of any other Person. The amount of any Contingent Obligation described in clause (ii) shall be deemed to be (a) with respect to a guaranty of interest or interest and principal, or operating income guaranty, the Net Present Value of the sum of all payments required to be made thereunder (which in the case of an operating income guaranty shall be deemed to be equal to the debt service for the note secured thereby), through (i) in the case of an interest or interest and principal guaranty, the stated date of maturity of the obligation (and commencing on the date interest could first be payable thereunder), or (ii) in the case of an operating income guaranty, the date through which such guaranty will remain in effect, and (b) with respect to all guarantees not covered by the preceding clause (a), an amount equal to the stated or determinable amount of the primary obligation in respect of which such guaranty is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as recorded on the balance sheet and on the footnotes to the most recent financial statements of the Borrower required to be delivered pursuant to Section 5.1 hereof. Notwithstanding anything contained herein to the contrary, guarantees of completion shall not be deemed to be Contingent Obligations unless and until a claim for payment or performance has been made thereunder, at which time any such guaranty of completion shall be deemed to be a Contingent Obligation in an amount equal to any such claim. All matters constituting “Contingent Obligations” shall be calculated without duplication. “Conversion Notice” has the meaning set forth in Section 2.2(a). “Covered Assets” means, as of any date of determination, (a) the Loan Assets and the Credit Tenant Lease Assets directly owned by a Pledged Subsidiary and (b) interests in a Pledged Subsidiary owned by the Borrower, in each case listed on the Collateral and Covered Asset List. “Covered Party” means (i) the Borrower and (ii) each Covered Subsidiary. “Covered Subsidiary” means each (i) Pledged Subsidiary and (ii) Subsidiary of a Pledged Subsidiary set forth on Schedule 4.28. “Credit Ratings” means the Borrower’s corporate rating assigned by the Rating Agencies. “Credit Tenant Lease Asset” means (a) for any such assets initially included in the Borrowing Base on the Closing Date, a property owned by the Covered Subsidiaries and identified on the Collateral and Covered Assets List on the Closing Date as a credit tenant lease asset, or (b) for any assets added to the Borrowing Base after the Closing Date, a property owned by a Pledged Subsidiary which is - 10-
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(i) leased to a governmental entity, (ii) leased to a tenant (or guaranteed by a Person) with an Investment Grade Rating, (iii) a property which, if unavailable to a tenant, would materially impair the continued operation of such tenant, including without limitation, a headquarters facility, distribution center, manufacturing facility, or a pool or class of multiple properties leased under a blanket lease or (iv) identified by the Borrower as a credit tenant lease asset in the ordinary course of business and consistent with its past practices. “Default” means any condition or event which with the giving of notice or lapse of time or both would, unless cured or waived, become an Event of Default. “Default Rate” has the meaning set forth in Section 2.7(c). “Defaulting Bank” means any Bank that (a) has failed, within two Business Days of the date required to be funded or paid, to (i) fund any portion of its Loans, or (ii) pay over to the Administrative Agent or the other Banks any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Bank notifies the Administrative Agent in writing that such failure is the result of such Bank’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) has notified the Borrower or the Administrative Agent and the other Banks in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Bank’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within three Business Days after request by a the Administrative Agent or applicable Bank, acting in good faith, to provide a certification in writing from an authorized officer of such Bank that it will comply with its obligations (and is financially able to meet such obligations as of the date of certification) to fund prospective Loans under this Agreement, provided that such Bank shall cease to be a Defaulting Bank pursuant to this clause (c) upon the Administrative Agent or the applicable Bank’s receipt of such certification in form and substance satisfactory to it and the Administrative Agent, (d) has become the subject of a Bankruptcy Event, or (e) has, or has a direct or indirect parent company that has, become the subject of a Bail-In Action. “Designated Valuation Amount” means, as of any date of determination, as to any single asset included as a Borrowing Base Asset, the BPO Value of such Borrowing Base Asset as of such date of determination; provided that: (i) if there is a write-down with respect to the Book Value of such asset or a specific reserve is taken with respect to such asset, the Designated Valuation Amount of such asset shall be (a) other than for those Borrowing Base Assets as described in sub-clauses (b) and (c) below, the lesser of (x) the Book Value of such asset, after giving effect to such write-down or asset specific reserve, and (y) the BPO Value of such asset, after giving effect to such write-down and asset specific reserve, (b) in the case of a Borrowing Base Asset described in clause (viii) below, the lesser of (x) the Book Value of such Borrowing Base Asset, after giving effect to such write- down or asset specific reserve and (y) to the extent available, the Appraised Value of such Borrowing Base Asset, after giving effect to such write-down an asset specific reserve and (c) in the case of a Loan Asset, the Book Value of such Borrowing Base Asset, after giving effect to such write-down or asset specific reserve; (ii) the Designated Valuation Amount of a Loan Asset shall be the Book Value of such Loan Asset adjusted (but, in no event below zero) to reflect principal payments actually paid or prepaid on account of such Loan Assets as reflected on the most recent Monthly Certificate; - 11-
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(iii) the Designated Valuation Amount of a Loan Asset that is included as a Borrowing Base Asset after the Closing Date and for which the Look-Through LTV is greater than 70% as of such date shall be reduced such that the Look-Through LTV is not greater than 70% after giving effect to such reduction; (iv) the Designated Valuation Amount of a Borrowing Base Asset during the applicable grace period during which a BPO is required to be delivered pursuant to Section 5.1(k) shall be the Book Value until such BPO is delivered in accordance with Section 5.1(k); provided that, the Designated Valuation Amount of a Borrowing Base Asset for which a BPO has not been delivered within the applicable grace period required by Section 5.1(k) shall be zero; (v) the Designated Valuation Amount of a Loan Asset that becomes a Non- Performing Loan Assets shall be zero; (vi) the Designated Valuation Amount of any Borrowing Base Asset that is subject to a Lien that is not a Permitted Lien shall be zero; (vii) the Designated Valuation Amount of any Eligible Loan Asset that is a Construction Loan shall be adjusted to reflect any additional funds loaned to the applicable borrower and principal payments actually paid or prepaid by such borrower, in each case, on account of such Construction Loan, including scheduled repayments from sales proceeds received on the underlying real estate; and (viii) irrespective of the foregoing clause (iv), the Designated Valuation Amount of any Credit Tenant Lease Asset that is one of the Three Largest Asset at a time when the Concentration Test Increase Period is in effect and an Appraisal for such Credit Tenant Lease Asset has been completed during such Concentration Test Increase Period shall be the lesser of (x) the Book Value of such Credit Tenant Lease Asset and (y) the Appraised Value of such Credit Tenant Lease Asset. “Dollars” and “$” means the lawful money of the United States. “Domestic Lending Office” means, as to each Bank, its office located at its address in the United States set forth in its Administrative Questionnaire (or identified in its Administrative Questionnaire as its Domestic Lending Office) or such other office as such Bank may hereafter designate as its Domestic Lending Office by notice to the Borrower and the Administrative Agent. “Earnings Presentation” means an earnings presentation of the Borrower in a substantially similar form as the one attached as Exhibit 99.2 to the Borrower’s Current Report on Form 8-K filed August 1, 2019 announcing the Borrower’s results of operations and financial condition, including the Total Corporate Leverage Ratio for such reporting period, as filed with the Securities and Exchange Commission. “EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent. - 12-
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“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. “Eligible Credit Tenant Lease Asset” means the Credit Tenant Lease Assets, provided that: (a) such Credit Tenant Lease Asset shall (i) as to any Credit Tenant Lease Asset added as a Covered Asset after the Closing Date, be wholly-owned by a Pledged Subsidiary and the underlying real property in respect of such Credit Tenant Lease Asset shall be owned in fee simple by such Pledged Subsidiary, (ii) have a vacancy rate of less than 20% as of the date such Credit Tenant Lease Asset is added as a Borrowing Base Asset, and (iii) as to any Credit Tenant Lease Asset added as a Covered Asset after the Closing Date, have one or more leases with a weighted average remaining lease term of not less than five (5) years as of the date such Credit Tenant Lease Asset is added as a Borrowing Base Asset; (b) the real property underlying any such Credit Tenant Lease Asset shall not be subject to a Mortgage; and (c) such Credit Tenant Lease Asset shall have been added to the Covered Assets in accordance with Section 2.18. “Eligible Loan Assets” means the Loan Assets of any Pledged Subsidiary, including without limitation, Loan Assets with respect to hospitality and healthcare related stabilized assets and Construction Loans, provided that: (a) any such Loan Asset shall be wholly-owned by a Pledged Subsidiary, except in the case of Construction Loans in which case participations in such Construction Loan shall be permitted; (b) with respect to a Construction Loan, LTC shall be less than or equal to 70% and the construction project being financed by such Construction Loan shall be more than 50% complete in accordance with the terms of such Construction Loan; (c) any such Loan Asset shall not be in respect of undeveloped land or transitional properties; (d) any such Loan Asset shall not be contractually or structurally junior to or pari passu with any other loans, or secured by Mortgages that are junior to or pari passu with the Mortgages securing other loans encumbering shared collateral, unless such senior or pari passu loan is also a Borrowing Base Asset; (e) such Loan Assets shall have been added to the Covered Assets in accordance with Section 2.18; and (f) in the case of any Loan Asset that is not a Construction Loan and for which the Look-Through LTV is less than or equal to 45%, the Borrower shall have delivered an Investment Memo with respect to such Loan Asset. - 13-
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if the Screen Rate shall not be available at such time for such Interest Period (an “Impacted Interest Period”) with respect to Dollars, then the Eurodollar Base Rate shall be the Interpolated Rate at such time (provided that if the Interpolated Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement). “Eurodollar Borrowing” has the meaning set forth in Section 1.3. “Eurodollar Business Day” means any Business Day on which banks are open for dealings in deposits in Dollars in the London interbank market. “Eurodollar Lending Office” means, as to each Bank, its office, branch or affiliate located at its address set forth in its Administrative Questionnaire (or identified in its Administrative Questionnaire as its Eurodollar Lending Office) or such other office, branch or affiliate of such Bank as it may hereafter designate as its Eurodollar Lending Office by notice to the Borrower and the Administrative Agent. “Eurodollar Loan” means a Loan in Dollars, the interest on which is calculated by reference to the Eurodollar Rate, made or to be made by a Bank in accordance with the applicable Notice of Borrowing. “Eurodollar Rate” means with respect to each day during each Interest Period pertaining to a Eurodollar Loan, a rate per annum determined for such day in accordance with the following formula: Eurodollar Base Rate 1.00 - Eurocurrency Reserve Requirement “Event of Default” has the meaning set forth in Section 6.1. “Excluded Assets” means the assets owned by the Covered Subsidiaries identified from time to time on Schedule 1.1D, none of which shall constitute a Covered Asset. “Existing Credit Agreement” has the meaning set forth in the recitals hereto “Facility Collateral Cash Flow” means, for any date of determination, the regularly scheduled amortization, interest and rent income from the Borrowing Base Assets included in the Borrowing Base as of the date of determination for the period of four fiscal quarters ended as of such date of determination; provided that, with respect to any Credit Tenant Lease Asset that was added as a Borrowing Base Asset since the end of such period and that has a lease term that begins on or after such date of determination, the Facility Collateral Cash Flow with respect to such Borrowing Base Asset shall equal, on a pro forma basis, the projected rental income therefrom for the period of four fiscal quarters commencing on such date of determination (or for each date of determination for the subsequent three quarters, for the three quarter, two quarter and one quarter period, respectively, after such date of determination). “Facility Collateral Coverage Ratio” means, for each date of determination set forth in Section 5.9(b), the ratio of (a) Facility Collateral Cash Flow as of such date of determination to (b) Facility Interest Expense as of such date of determination. “Facility Interest Expense” means, for any date of determination, the total cash interest expense (including Commitment Fees) of the Borrower payable with respect to the Loans for the period of four fiscal quarters ended as of such date of determination (assuming for purposes of determining such - 15-
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interest expense that the Total Commitments have been fully Borrowed hereunder during such period) determined in accordance with GAAP. “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any intergovernmental agreements related thereto, and any agreement entered into pursuant to Section 1471(b)(1) of the Code and any law, regulation, rule, promulgation, guidance notes, practices or official agreement implementing an official government agreement with respect to the foregoing. “Federal Funds Rate” means, for any day, the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for the day of such transactions received by JPMorgan Chase Bank, N.A. from three federal funds brokers of recognized standing selected by it; provided that if the Federal Funds Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement. “Federal Reserve Board” means the Board of Governors of the Federal Reserve System as constituted from time to time. “Fiscal Quarter” means a fiscal quarter of a Fiscal Year. “Fiscal Year” means the fiscal year of the Borrower. “Fitch” means Fitch Investor Services, Inc., or any successor thereto. “GAAP” means generally accepted accounting principles in the United States as in effect from time to time, except that for purposes of Section 5.1, GAAP shall be determined on the basis of such principles in effect on the date hereof and consistent with those used in the preparation of the most recent audited financial statements referred to in Section 5.1(a); provided, that (i) revenues, expenses, gains and losses that are included in results of discontinued operations because of the application of SFAS No. 144 will be treated as revenues, expenses, gains and losses from continuing operations. In the event that any “Accounting Change” (as defined below) shall occur and such change results in a change in the method of calculation of financial covenants, standards or terms in this Agreement, then the Borrower and the Administrative Agent agree to enter into negotiations in order to amend such provisions of this Agreement so as to reflect equitably such Accounting Changes with the desired result that the criteria for evaluating the Borrower’s financial condition shall be the same after such Accounting Changes as if such Accounting Changes had not been made. Until such time as such an amendment shall have been executed and delivered by the Borrower, the Administrative Agent and the Required Banks, all financial covenants, standards and terms in this Agreement shall continue to be calculated or construed as if such Accounting Changes had not occurred. “Accounting Changes” refers to changes in accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants or, if applicable, the SEC. “Governmental Authority” means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government, any securities exchange and any self-regulatory organization (including the National Association of Insurance Commissioners). - 16-
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“Group of Loans” means, at any time, a group of Loans consisting of (i) all Loans which are Base Rate Loans at such time, or (ii) all Eurodollar Loans having the same Interest Period at such time; provided that, if a Loan of any particular Bank is converted to or made as a Base Rate Loan pursuant to Section 8.2 or Section 8.5, such Loan shall be included in the same Group or Groups of Loans from time to time as it would have been in if it had not been so converted or made. “Indebtedness” as applied to any Person, means, at any time, without duplication, (a) all indebtedness, obligations or other liabilities of such Person (i) for borrowed money (including construction loans) or evidenced by debt securities, debentures, acceptances, notes or other similar instruments, and any accrued interest, fees and charges relating thereto, (ii) under profit payment agreements or in respect of obligations to redeem, repurchase or exchange any Securities of such Person or to pay dividends in respect of any stock, (iii) with respect to letters of credit issued for such Person’s account, (iv) to pay the deferred purchase price of property or services, except accounts payable and accrued expenses arising in the ordinary course of business, (v) in respect of Capital Leases, (vi) which are Contingent Obligations or (vii) under warranties and indemnities; (b) all indebtedness, obligations or other liabilities of such Person or others secured by a Lien on any property of such Person, whether or not such indebtedness, obligations or liabilities are assumed by such Person, all as of such time (provided that the value of such indebtedness, obligations or liabilities shall be limited to the lesser of (x) the amount of such indebtedness, obligations or liabilities assumed by such Person and (y) the undepreciated book value of the property subject to such Lien, determined in accordance with GAAP, and less any impairment charge; (c) all indebtedness, obligations or other liabilities of such Person in respect of Interest Rate Contracts and foreign exchange contracts, net of liabilities owed to such Person by the counterparties thereon; (d) all preferred stock subject (upon the occurrence of any contingency or otherwise) to mandatory redemption; and (e) all contingent contractual obligations with respect to any of the foregoing. “Indemnitee” has the meaning set forth in Section 9.3(b). “Insolvency” means with respect to any Multiemployer Plan, the condition that such plan is insolvent within the meaning of Section 4245 of ERISA. “Interest Period” means, with respect to each Eurodollar Borrowing, the period commencing on the date of such Borrowing specified in the Notice of Borrowing or on the date specified in the applicable Notice of Interest Rate Election and ending 1, 2, 3 or 6 months (or, if available to all Banks, one week) thereafter as the Borrower may elect in the applicable Notice of Interest Rate Election; provided, that: (a) any Interest Period which would otherwise end on a day which is not a Eurodollar Business Day shall be extended to the next succeeding Eurodollar Business Day unless such Eurodollar Business Day falls in another calendar month, in which case such Interest Period shall end on the immediately preceding Eurodollar Business Day; (b) any Interest Period which begins on the last Eurodollar Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Eurodollar Business Day of a calendar month; and (c) no Interest Period may end later than the Maturity Date. “Interest Rate Contracts” means, collectively, interest rate swap, collar, cap or similar agreements providing interest rate protection. - 17-
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“Investment Affiliate” means any joint venture or Subsidiary, whose financial results are not consolidated under GAAP with the financial results of the Borrower on the consolidated financial statements of the Borrower. “Interpolated Rate” means, at any time, the rate per annum (rounded to the same number of decimal places as the Screen Rate) determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the Screen Rate (for the longest period for which that Screen Rate is available in Dollars) that is shorter than the Impacted Interest Period and (b) the Screen Rate (for the shortest period for which that Screen Rate is available for Dollars) that exceeds the Impacted Interest Period, in each case, as of the Specified Time on the Quotation Day for such Interest Period. When determining the rate for a period which is less than the shortest period for which the Screen Rate is available, the Screen Rate for purposes of clause (a) above shall be deemed to be the overnight rate for Dollars determined by the Administrative Agent from such service as the Administrative Agent may select. “Investment Grade Rating” means a rating for a Person’s senior long-term unsecured debt of BBB- or better from S&P, of Baa3 or better from Xxxxx’x or of BBB- or better from Fitch. In the event that the Borrower receives Credit Ratings from S&P and Xxxxx’x, and such Credit Ratings are not equivalent, the lower of such two (2) Credit Ratings shall be used to determine whether an Investment Grade Rating was achieved. “Investment Memo” means, as to a Covered Asset, the Borrower’s memorandum delivered to its internal investment committee or similar committee in connection with obtaining internal approval for investment in such Covered Asset prepared in accordance with the Borrower’s underwriting standards in accordance with past practice, without any modification, deletion or redaction to such memorandum as to the Borrower’s determination of value as to such Covered Asset (it being understood that Borrower may make non-material redactions as to competitor-specific information therein). “Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind, or any other type of preferential arrangement, in each case that has the effect of creating a security interest in respect of such asset. For the purposes of this Agreement, the Borrower or any Consolidated Subsidiary shall be deemed to own subject to a Lien any asset which it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement relating to such asset. “Limited Term Credit Tenant Lease Asset” means a Credit Tenant Lease Asset that is a Borrowing Base Asset and for which the weighted average remaining lease term is greater than five (5) years but less than eight (8) years from the date such Credit Tenant Lease Asset is added. “Loan” means the Revolving Loans until such time that such Loans are converted into Term Loans pursuant to Section 2.2 and Section 3.3 and the Term Loans. “Loan Assets” means senior or subordinated loans that may be either fixed or variable rate, including, without limitation, first mortgages, second mortgages, mezzanine loans, repurchase agreements, participations in loans, interim facilities, corporate loans, debt securities, “B” notes and collateralized mortgage-backed securities. “Loan Documents” means this Agreement, any Notes and each Collateral Document. “Look-Through LTV” means, as to any Loan Asset as of any determination date, the ratio of (x) the sum of the principal amount of such Loan Asset (including all capitalized interest) plus the - 18-
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outstanding principal amount of all other loans (including all capitalized interest) that are pari passu or senior in right of payment (whether structurally or contractually) to such Loan Asset, or that are secured by pari passu or senior Mortgages with respect to common collateral to (y) (1) if such Loan Asset is one of the Three Largest Asset at a time when the Concentration Test Increase Period is in effect and an Appraisal for such Loan Asset has been completed during such Concentration Test Increase Period, the Appraised Value or (2) otherwise, the value of the common collateral as determined in good faith by the Borrower in accordance with its customary underwriting standards consistently applied at the end of the most recently ended fiscal quarter as of such date of determination in accordance with GAAP, consistently applied. “LTC” means, as to any Loan Asset that is a Construction Loan as of any determination date, the ratio of (I) the sum of the aggregate amount of principal of the Construction Loan as of such determination date to (II) the aggregate cost, as of such determination date, of the construction project (including all material and labor costs, land acquisition costs, and architectural, engineering, development, financing, and legal fees, and other pre- and post-construction expenses) in respect of which such Construction Loan is provided as determined in good faith by the Borrower in accordance with its customary underwriting standards consistently applied and set forth in the most recently-delivered Borrowing Base Certificate or Monthly Certificate. “Material Adverse Effect” means an effect resulting from any circumstance or event or series of circumstances or events, of whatever nature (but excluding general economic conditions), which does or would reasonably be expected to, materially and adversely impair (i) the ability of the Covered Parties, taken as a whole, to perform their respective obligations under the Loan Documents, or (ii) the ability of the Administrative Agent or the Banks to enforce the Loan Documents. “Material Default” means (i) any Payment Default, (ii) any Default resulting from the Borrower’s failure to be in compliance with any covenant contained in Section 5.1(a), (b), (c), (d)(i) (provided that the officer of the Borrower that, in such case, has obtained knowledge of the applicable Default or Event of Default is any of the president, chief executive officer, chief financial officer or chief operating officer of the Borrower or any officer performing the customary duties of any such position), (i), (j) or (k), 5.8, 5.9, 5.10, 5.11, 5.15 or 5.18 or (iii) any other material Default as to which the Borrower shall have received written notice. “Materials of Environmental Concern” means and includes any pollutants, contaminants, hazardous wastes, toxic and hazardous substances, asbestos, lead, petroleum and petroleum by-products, and any other substances regulated pursuant to, or that could give rise to liability under, Environmental Law. “Maturity Date” means the date when all Obligations hereunder shall be due and payable, which shall be the Revolving Termination Date or, if the Revolving Loans are converted into Terms Loans subject to Sections 2.2 and 3.3, the Term Loan Maturity Date, unless in either case otherwise accelerated pursuant to the terms hereof; provided, however, in each case, if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day. “Monthly Certificate” has the meaning set forth in Section 5.1(j). “Xxxxx’x” means Xxxxx’x Investors Services, Inc. or any successor thereto. “Mortgage” means a mortgage, deed of trust, deed to secured debt or similar security interest. - 19-
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“Multiemployer Plan” means at any time an employee pension benefit plan within the meaning of Section 4001(a)(3) of ERISA, which is subject to Title IV of ERISA to which any member of the ERISA Group is then making or accruing an obligation to make contributions. “Negative Pledge Agreement” means the Second Amended and Restated Negative Pledge Agreement, dated the date hereof, among the Covered Subsidiaries and the Administrative Agent, substantially in the form of Exhibit C, as the same may be amended, modified or supplemented from time to time. “Net Present Value” means, as to a specified or ascertainable Dollar amount, the present value, as of the date of calculation of any such amount using a discount rate equal to the Base Rate in effect as of the date of such calculation. “Non-Cash Flow Credit Tenant Lease Asset” means, as of any date of determination, a Credit Tenant Lease Asset for which no income is being generated as of such date of determination and no income has been generated for a period of six months or longer as of such date of determination. “Non-Excluded Taxes” has the meaning set forth in Section 8.4(a). “Non-Performing Loan Assets” means any Loan Asset classified as non-performing in accordance with the Borrower’s internal procedures, consistent with past practice. “Non-Recourse Indebtedness” means Indebtedness with respect to which recourse for payment is limited to (i) specific assets related to a particular Property or group of Properties encumbered by a Lien securing such Indebtedness or (ii) for all purposes other than Section 6.1(e) hereof, any Subsidiary (so long as a Subsidiary is a partnership, there is no recourse to the Borrower as a general partner of such partnership); provided that if any portion of Indebtedness is so limited, then such portion shall constitute Non-Recourse Indebtedness and only the remainder of such Indebtedness shall constitute Recourse Debt; provided, further, however, that direct recourse to the Borrower for any such Indebtedness for fraud, misrepresentation, misapplication of cash, waste, Environmental Claims and liabilities and other circumstances customarily excluded by institutional lenders from exculpation provisions and/or included in separate indemnification agreements in non-recourse financing of real estate shall not, by itself, prevent such Indebtedness from being characterized as Non-Recourse Indebtedness. “Notes” means any promissory notes of the Borrower, substantially in the form of Exhibit D hereto, evidencing the obligation of the Borrower to repay the Loans, and “Note” means any one of such promissory notes issued hereunder. “Notice of Borrowing” means a notice from the Borrower in accordance with Section 2.3 and substantially in the form attached of Exhibit E. “Notice of Interest Rate Election” has the meaning set forth in Section 2.6. “Obligations” means all obligations, liabilities, indemnity obligations and Indebtedness of every nature of the Borrower (including interest accruing after the maturity of the Loans and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for post-filing or post- petition interest is allowed in such proceeding), from time to time owing to the Administrative Agent, any other Agent or any Bank under or in connection with the Loans under this Agreement or any other Loan Document. - 20-
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“Other Taxes” has the meaning set forth in Section 8.4(b). “Parent” means, with respect to any Bank, any Person controlling such Bank. “Participant” has the meaning set forth in Section 9.6(b). “Participant Register” has the meaning set forth in Section 9.6(b). “Patriot Act” has the meaning set forth in Section 9.15. “Payment Date” means (a) the first Business Day of each January, April, July and October and (b) the Maturity Date. “Payment Default” means any Default resulting from the Borrower’s failure to pay any principal of any Loan hereunder, including any mandatory prepayment hereunder, or any interest due on any Loan or any fees or other amount payable hereunder. “PBGC” means the Pension Benefit Guaranty Corporation or any entity succeeding to any or all of its functions under ERISA. “Permitted Liens” means: (a) Liens for Taxes, assessments or other governmental charges not yet delinquent or which are being contested in good faith by appropriate proceedings promptly instituted and diligently conducted in accordance with the terms hereof; (b) statutory liens of carriers, warehousemen, mechanics, materialmen and other similar liens imposed by law, which are incurred in the ordinary course of business for sums not more than ninety (90) days delinquent or which are being contested in good faith in accordance with the terms hereof; (c) utility deposits and other deposits or pledges to secure the performance of bids, trade contracts (other than for borrowed money), leases, purchase contracts, construction contracts, governmental contracts, statutory obligations, surety bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business; (d) easements (including reciprocal easement agreements and utility agreements), rights-of-way, zoning restrictions, other covenants, reservations, encroachments, leases, licenses or similar charges or encumbrances (whether or not recorded) and all other items listed on any Schedule B to the Borrower’s owner’s title insurance policies, except in connection with any Indebtedness, for any of the Borrower’s Real Property Assets, so long as the foregoing do not interfere in any material respect with the use or ordinary conduct of the business of the Borrower and do not diminish in any material respect the value of the property to which such Permitted Lien is attached; (e) (I) Liens and judgments which have been or will be bonded (and the Lien on any cash or securities serving as security for such bond) or released of record within forty-five (45) days after the date such Lien or judgment is entered or filed against the Borrower, or any other Covered Party, or (II) Liens which are being contested in good faith by appropriate proceedings for review and in respect of which there shall have been secured a subsisting stay of execution pending such appeal or proceedings and as to which the subject asset is not at risk of forfeiture; - 21-
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(f) Liens created pursuant to the Collateral Documents in favor of the Administrative Agent for the benefit of the Secured Parties; and (g) Liens in favor of the Borrower. “Person” means an individual, a corporation, a partnership, a limited liability company, an association, a trust or any other entity or organization, including, without limitation, a government or political subdivision or an agency or instrumentality thereof. “Plan” means at any time an employee pension benefit plan (other than a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code and either (i) is maintained, or contributed to, by any member of the ERISA Group, (ii) has at any time within the preceding five years been maintained, or contributed to, by any Person which was at such time a member of the ERISA Group or (iii) to which any member of the ERISA Group has had liability within the previous five years. “Plan Asset Regulations” means 29 CFR § 2510.3-101 et seq., as modified by Section 3(42) of ERISA, as amended from time to time. “Pledged Subsidiary” means any Subsidiary of the Borrower the equity or other interests in which constitute Collateral pledged pursuant to the Collateral Documents and that owns, directly or indirectly, Covered Assets or any other Subsidiary that owns, directly or indirectly, Covered Assets. “Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent in consultation with the Borrower) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent in consultation with the Borrower). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective. “Pro Rata Share” means, for any Bank at any time, a fraction (expressed as a percentage), the numerator of which shall be the amount of such Bank’s Commitment and the denominator of which shall be the Total Commitments. “Projections” means the projected cash flows of the Borrower and its Consolidated Subsidiaries, substantially in the form of Exhibit F hereto. “Property” means, with respect to any Person, any real or personal property, building, facility, structure, equipment or unit, or other asset owned by such Person. “PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time. “Rating Agencies” means, collectively, S&P, Xxxxx’x and Fitch. “Real Property Assets” means as to any Person as of any time, the real property assets (including, without limitation, interests in participating mortgages in which such Person’s interest therein is characterized as equity according to GAAP) owned directly or indirectly by such Person at such time. - 22-
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“Recourse Debt” means Indebtedness other than Non-Recourse Indebtedness. “REIT” means a real estate investment trust, as defined under Section 856 of the Code. “Required Banks” means at any time Banks having or holding more than 50% of (i) prior to the conversion of the Revolving Loans into Term Loans in accordance with Section 2.2 and Section 3.3, the aggregate amount of the Total Commitments then in effect, and (ii) on or after such conversion, or any termination of the Total Commitments, the aggregate unpaid principal amount of the Loans then outstanding hereunder. “Revolving Commitment Period” means the period from and including the Closing Date to the Revolving Termination Date. “Revolving Loans” has the meaning set forth in Section 2.1(a). “Revolving Termination Date” means September 27, 2022. “S&P” means Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc., or any successor thereto. “Safety” means Safehold, Inc. (f/k/a Safety, Income & Growth Inc.), a Maryland corporation. “Safety Management Agreement” means the Management Agreement, dated as of June 27, 2017, by and among Safety, Safehold Operating Partnership LP (f/k/a Safety Income and Growth Operating Partnership LP), SFTY Manager LLC and iStar Inc., as the same may be amended from time to time. “Sanctioned Country” means at any time, a country, region or territory which is itself the subject or target of any Sanctions (at the time of this Agreement, Cuba, the Crimea region of the Ukraine, Iran, North Korea and Syria). “Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, by the United Nations Security Council, the European Union, any European Union member state, Her Majesty’s Treasury of the United Kingdom or other relevant sanctions authority, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons described in the foregoing clauses (a) or (b). “Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, (b) the United Nations Security Council, the European Union, any European Union member state or Her Majesty’s Treasury of the United Kingdom or (c) other relevant sanctions authority. “Screen Rate” has the meaning set forth in the definition of “Eurodollar Base Rate.” “Secured Parties” has the meaning set forth in the Security Agreement. - 23-
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“Securities” means any stock, partnership interests, shares, shares of beneficial interest, voting trust certificates, bonds, debentures, notes or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities,” or any certificates of interest, shares, or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire any of the foregoing, and shall include Indebtedness which would be required to be included on the liabilities side of the balance sheet of the Borrower in accordance with GAAP, but shall not include any Cash and Cash Equivalents or any evidence of the Obligations. “Security Agreement” means the Second Amended and Restated Security Agreement, dated the date hereof, made by the Borrower in favor of the Administrative Agent, substantially in the form of Exhibit G, as the same may be amended, modified or supplemented from time to time. “Solvent” means that, when used with respect to any Person, as of any date of determination, (a) the amount of the “present fair saleable value” of the assets of such Person will, as of such date, exceed the amount of all “liabilities of such Person, contingent or otherwise”, as of such date, as such quoted terms are determined in accordance with applicable federal and state laws governing determinations of the insolvency of debtors, (b) the present fair saleable value of the assets of such Person will, as of such date, be greater than the amount that will be required to pay the liability of such Person on its debts as such debts become absolute and matured, (c) such Person will not have, as of such date, an unreasonably small amount of capital with which to conduct its business, and (d) such Person will be able to pay its debts as they mature. For purposes of this definition, (i) “debt” means liability on a “claim”, and (ii) “claim” means any (x) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured. “Specified Time” means 11:00 a.m., London time. “Subsidiary” means any corporation, trust or other entity of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are at the time directly or indirectly owned by the Borrower. “Super Majority Banks” means at any time Banks having or holding more than 66 2/3% of (i) prior to the conversion of the Revolving Loans into Term Loans in accordance with Section 2.2 and Section 3.3, the aggregate amount of the Total Commitments then in effect, and (ii) on or after such conversion or any termination of the Total Commitments, if applicable, the aggregate unpaid principal amount of the Loans then outstanding hereunder. “Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), value added taxes, or any other goods and services, use or sales taxes, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto. “Term Loan Maturity Date” means the first anniversary of the Revolving Termination Date. “Term Loans” has the meaning set forth in Section 2.2(a). - 24-
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“Termination Event” means (i) a “reportable event”, as such term is described in Section 4043 of ERISA (other than a “reportable event” for which notice to the PBGC has been waived by statute or regulation), or an event described in Section 4062(e) of ERISA, (ii) the filing of a notice of intent to terminate any Plan under Section 4041 of ERISA, other than in a standard termination within the meaning of Section 4041 of ERISA, or the treatment of a Plan amendment as a distress termination under Section 4041 of ERISA, (iii) the institution by the PBGC of proceedings to terminate, impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or cause a trustee to be appointed to administer, any Plan, (iv) any failure to make by its due date any required installment under Section 430(j) of the Code with respect to any Plan, any failure by the Borrower or any member of the ERISA Group to make any required contribution to any Multiemployer Plan, or any failure to satisfy the minimum funding standards (within the meaning of Section 302 of ERISA or Section 412 of the Code), whether or not waived, shall exist with respect to any Plan, any Lien in favor of the PBGC, a Plan, or a Multiemployer Plan shall arise on the assets of the Borrower or any member of the ERISA Group, or there shall be any determination that any Plan is or is expected to be in “at risk” status (within the meaning of Section 430 of the Code or Section 303 of ERISA), (v) ) the Borrower or any member of the ERISA Group shall, or in the reasonable opinion of the Required Banks is likely to, incur any liability in connection with a withdrawal from any Plan in which it was a substantial employer, or the withdrawal from, termination, Insolvency of, or “endangered” or “critical” status (within the meaning of Section 432 of the Code or Section 305 of ERISA) of, a Multiemployer Plan, (vi) a proceeding shall be instituted by a fiduciary of any Multiemployer Plan against any member of the ERISA Group, to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall not have been dismissed within 30 days thereafter, (vii) the provision by the administrator of any Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA, (viii) the withdrawal by the Borrower or any member of the ERISA Group from any Plan with two or more contributing sponsors or the termination of any such Plan resulting in liability to any member of the ERISA Group pursuant to Section 4063 or 4064 of ERISA, (ix) receipt from the Internal Revenue Service of notice of the failure of any Plan (or any other employee benefit plan sponsored by the Borrower or any of its Subsidiaries which is intended to be qualified under Section 401(a) of the Internal Revenue Code) to qualify under Section 401(a) of the Internal Revenue Code, or the failure of any trust forming part of any such employee benefit plan to qualify for exemption from taxation under Section 501(a) of the Internal Revenue Code or (x) any other event or condition that might reasonably constitute grounds for the termination of, or the appointment of a trustee to administer, any Plan or the imposition of any liability or encumbrance or Lien on the Real Property Assets or any member of the ERISA Group under ERISA or the Code. “Three Largest Assets” means, as of any date of determination, the three most valuable Borrowing Base Assets based on the Borrowing Base Value of each such Borrowing Base Asset as of such date as determined by the most recent Borrowing Base Certificate and adjusted in the Monthly Certificate. “Total Commitments” means at any time, the aggregate amount of the Commitments then in effect. “Total Corporate Leverage Ratio” means the total corporate leverage ratio calculated in the manner calculated in the Borrower’s August 1, 2019 Earnings Presentation, which shall be reflected in each of the Borrower’s Earnings Presentations. “Total Revolving Loans” means at any time, the aggregate amount of the Revolving Loans outstanding at such time. - 25-
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“Uniform Commercial Code” means the Uniform Commercial Code as the same may from time to time be in effect in the State of New York or the Uniform Commercial Code (or similar code or statute) of another jurisdiction, to the extent it may be required to apply to any item or items of Collateral. “United States” means the United States of America, including the fifty states and the District of Columbia. “Weighted Average CTL Lease Term” means, as of any date of determination, the weighted average remaining lease term as of such date of determination for all Credit Tenant Lease Assets that are Borrowing Base Assets as of such date based on the Borrowing Base Value of such Credit Tenant Lease Assets. “Write-Down and Conversion Powers” means, 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. Section 1.2. Accounting Terms and Determinations. (a) As used herein and in the other Loan Documents, and any certificate or other document made or delivered pursuant hereto or thereto, accounting terms relating to the Borrower and its Consolidated Subsidiaries not defined in Section 1.1 and accounting terms partly defined in Section 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP (provided that all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under Accounting Standards Codification 000-00-00 (previously referred to as Statement of Financial Accounting Standards 159) (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Borrower or any Subsidiary at “fair value”, as defined therein. (b) Notwithstanding anything to the contrary contained in Section 1.2(a) or in the definition of “Capital Lease,” in the event of any change in accounting for leases pursuant to GAAP resulting from the adoption of Financial Accounting Standards Board Accounting Standards Update No. 2016-02, Leases (Topic 842) (“FAS 842”), to the extent such adoption would require treating any lease (or similar arrangement conveying the right to use) as a capital lease where such lease (or similar arrangement) would not have been required to be so treated under GAAP as in effect on the date hereof, only those leases that would constitute capital leases in conformity with GAAP as in effect on the date hereof shall be considered capital leases, and all calculations and deliverables under this Agreement or any other Loan Document shall be made or delivered, as applicable, in accordance therewith. Section 1.3. Types of Borrowings. The term “Borrowing” denotes the aggregation of Loans of one or more Banks to be made to the Borrower pursuant to Article II on the applicable Borrowing Date, all of which Loans are of the same type (subject to Article VIII) and, except in the case of Base Rate Loans, have the same Interest Period. Section 1.4. Interest Rates; LIBOR Notification . The interest rate on Eurodollar Loans is determined by reference to the Eurodollar Base Rate, which is derived from the London interbank offered rate. The London interbank offered rate is intended to represent the rate at which contributing banks may obtain short-term borrowings from each other in the London interbank market. In July 2017, the U.K. Financial Conduct Authority announced that, after the end of 2021, it would no longer persuade or compel contributing banks to make rate submissions to the ICE Benchmark Administration (together with any successor to the ICE Benchmark Administrator, the “IBA”) for purposes of the IBA setting the - 26-
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of Term Loans on the Revolving Termination Date and to extend the Maturity Date from the Revolving Termination Date to the Term Loan Maturity Date. (c) The Term Loans may from time to time be (i) Eurodollar Loans or (ii) Base Rate Loans or (iii) a combination thereof, as determined by the Borrower and notified to the Administrative Agent in accordance with Section 2.3 and Section 2.5 (d) The Term Loans shall be repaid in equal quarterly installments of 25% of the original principal amount of Term Loans, payable at the end of each calendar quarter, commencing with the first such quarter ending after the Revolving Termination Date with the last such payment payable on the Term Loan Maturity Date. Section 2.3. Procedures for Revolving Loan Borrowing. (a) The Borrower may borrow under the Commitments during the Revolving Commitment Period on any Business Day, provided that the Borrower shall give the Administrative Agent a Notice of Borrowing (which Notice of Borrowing must be received by the Administrative Agent prior to 10:00 a.m., New York City time, on the day of the requested Borrowing Date (in the case of Base Rate Loans) and three (3) Eurodollar Business Days’ notice (in the case of Eurodollar Loans) prior to the requested Borrowing Date) requesting that the Banks make the Loans on the requested Borrowing Date and specifying: (i) the amount of Revolving Loans to be borrowed; (ii) the requested Borrowing Date; (iii) whether the Revolving Loans comprising such Borrowing are to be Base Rate Loans or Eurodollar Loans; (iv) in the case of a Eurodollar Borrowing, the duration of the Interest Period applicable thereto, subject to the provisions of the definition of Interest Period; (v) payment instructions for delivery of such Borrowing; and (vi) that no Default or Event of Default has occurred or is continuing. (b) Each Borrowing of Revolving Loans shall be in an amount equal to (x) in the case of Base Rate Loans, $1,000,000 or a whole multiple thereof (or, if the then aggregate Available Commitments are less than $1,000,000, such lesser amount) and (y) in the case of Eurodollar Loans, $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Section 2.4. Notice to Banks; Funding of Revolving Loans. (a) Upon receipt of a Notice of Borrowing from the Borrower in accordance with Section 2.3 hereof, the Administrative Agent shall, on the date such Notice of Borrowing is received by the Administrative Agent, notify each applicable Bank of the contents thereof and of such Bank’s Pro Rata Share of such Borrowing and of the interest rate applicable thereto and such Notice of Borrowing shall not thereafter be revocable by the Borrower, unless the Borrower shall pay any applicable expenses pursuant to Section 2.14. (b) Not later than 1:00 p.m. (New York City time) in the case of a Notice of Borrowing of a Base Rate Loan delivered by the Borrower on the Borrowing Date and 12:00 p.m. (New York City time) on the requested Borrowing Date for all other Borrowings, each Bank shall (except as - 28-
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provided in subsection (c) of this Section 2.4) make available its Pro Rata Share of such Borrowing in Federal funds immediately available in New York, New York, to the Administrative Agent at its address referred to in Section 9.1. (c) Unless the Administrative Agent shall have received notice from a Bank prior to the requested Borrowing Date that such Bank will not make available to the Administrative Agent such Bank’s share of a Borrowing, the Administrative Agent may assume that such Bank has made such share available to the Administrative Agent on the requested Borrowing Date in accordance with this Section 2.4 and the Administrative Agent may, in reliance upon such assumption, but shall not be obligated to, make available to the Borrower on such date a corresponding amount on behalf of such Bank. If and to the extent that such Bank shall not have so made such share available to the Administrative Agent, such Bank agrees to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Federal Funds Rate, for each day from the date such amount is made available to the Borrower until the date such amount is repaid to the Administrative Agent. If such Bank shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Bank’s Loan included in such Borrowing for purposes of this Agreement. If such Bank shall not pay to the Administrative Agent such corresponding amount after reasonable attempts are made by the Administrative Agent to collect such amounts from such Bank, the Borrower agrees to repay to the Administrative Agent forthwith on demand such corresponding amounts together with interest thereto, for each day from the date such amount is made available to the Borrower until the date such amount is repaid to the Administrative Agent, at the interest rate applicable thereto one (1) Business Day after demand. Nothing contained in this Section 2.4(c) shall be deemed to reduce the Commitment of any Bank or in any way affect the rights of the Borrower with respect to a Defaulting Bank or the Administrative Agent. The failure of any Bank to make available to the Administrative Agent such Bank’s share of any Borrowing in accordance with Section 2.4(b) hereof shall not relieve any other Bank of its obligations to fund its Commitment, in accordance with the provisions hereof. (d) Subject to the provisions hereof, the Administrative Agent shall make available each Borrowing to the Borrower in Federal funds immediately available in accordance with, and on the date set forth in, the applicable Notice of Borrowing. Section 2.5. Notes. (a) Each Bank may, by notice to the Borrower and the Administrative Agent, request that each of its Loans be evidenced by a Note substantially the form of Exhibit D hereto. Upon the execution and delivery of any such Note, any existing Note payable to such Bank shall be returned to the Borrower and replaced or modified accordingly. Each reference in this Agreement to the “Note” of such Bank shall be deemed to refer to and include any or all of such Notes, as the context may require. (b) Upon receipt of any Bank’s Note pursuant to Section 3.1(a), the Administrative Agent shall forward such Note to such Bank. Such Bank shall record the date, amount, currency, type and maturity of each Loan made by it and the date and amount of each payment of principal made by the Borrower, with respect thereto, and may, if such Bank so elects in connection with any transfer or enforcement of its Note, endorse on the appropriate schedule appropriate notations to evidence the foregoing information with respect to each such Loan then outstanding; provided that the failure of such Bank to make any such recordation or endorsement shall not affect the obligations of the Borrower hereunder or under the Notes. Each Bank is hereby irrevocably authorized by the Borrower so to endorse its Note and to attach to and make a part of its Note a continuation of any such schedule as and when required. - 29-
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payable on the Closing Date. The Borrower agrees to pay to the Administrative Agent for its own account and the account of the Agents such fees as may from time to time be separately agreed upon among the Borrower and such Agents. (c) Fees Non-Refundable. All fees set forth in this Section 2.8 shall be deemed to have been earned on the date payment is due in accordance with the provisions hereof and shall be non- refundable. The obligation of the Borrower to pay such fees in accordance with the provisions hereof shall be binding upon the Borrower and shall inure to the benefit of the Administrative Agent and the Banks regardless of whether any Loans are actually made. Section 2.9. Maturity Date. All Loans (together with accrued interest thereon and all other Obligations) shall be due and payable on the Maturity Date. Section 2.10. Optional Prepayments; Termination or Reduction of Commitments. (a) The Borrower may, upon at least one (1) Business Day’s notice to the Administrative Agent (which notice shall be substantially in the form of Exhibit I hereto), prepay any Group of Base Rate Loans, in whole at any time, or from time to time in part in amounts aggregating $1,000,000 or more, by paying the principal amount to be prepaid together with accrued interest thereon to the date of prepayment. Each such optional prepayment shall be applied to prepay ratably the Loans of the several Banks included in such Group of Loans or Borrowing. (b) The Borrower may, upon at least three (3) Eurodollar Business Days’ notice to the Administrative Agent, given no later than 12:00 Noon (New York City time) (which notice shall be substantially in the form of Exhibit I hereto), prepay all, or from time to time in part in amounts aggregating $5,000,000 or more, any Group of Eurodollar Loans as of the last day of the Interest Period applicable thereto. Except as provided in Article VIII, the Borrower may not prepay all or any portion of the principal amount of any Eurodollar Loan prior to the end of the Interest Period applicable thereto unless the Borrower shall also pay any applicable expenses pursuant to Section 2.14. Any such prepayment notice shall be given on or prior to the third (3rd) Eurodollar Business Day prior to, but excluding, the date of prepayment to the Administrative Agent. Each such optional prepayment shall be applied to prepay ratably the Loans of the Banks included in any Group of Eurodollar Loans. (c) Any amount of Revolving Loans so prepaid pursuant to Section 2.10(a) or (b) may be reborrowed during the Revolving Commitment Period subject to the terms of this Agreement. Any amounts of Term Loans so prepaid pursuant to Section 2.10(a) or (b) may not be borrowed or reborrowed and the amount of each such prepayment of Term Loans shall be applied to reduce the then remaining installments of Term Loans described in Section 2.2(d) in direct order of maturity. Each prepayment of the Loans under this Section 2.10 shall be accompanied by accrued and unpaid interest thereon to the date of such prepayment on the amount so prepaid. (d) The Borrower shall have the right, upon not less than three (3) Business Days’ notice to the Administrative Agent, to terminate the Commitments or, from time to time, to reduce the amount of the Commitments; provided that no such termination or reduction of Commitments shall be permitted if, after giving effect thereto and to any prepayments of the Revolving Loans made on the effective date thereof, the Total Revolving Loan would exceed the lesser of the Total Commitments and the Borrowing Base. Any such reduction shall be in an amount equal to $5,000,000, or a whole multiple thereof, and shall reduce permanently the Commitments then in effect. Section 2.11. Mandatory Prepayments of Loans. - 32-
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(a) In the event and on such occasion (whether upon delivery of a Borrowing Base Certificate pursuant to Section 5.1(i), a Monthly Certificate pursuant to Section 5.1(j) or a BPO pursuant to Section 5.1(k) or any other circumstance) that (i) the Total Revolving Loans exceed the Total Commitments or (ii) the aggregate principal amount of the Loans exceed the Borrowing Base, the Borrower shall within 30 days after such occasion prepay the Loans in an aggregate amount equal to such excess or cause one or more additional Eligible Credit Tenant Lease Assets or Eligible Loan Assets to become Covered Assets in accordance with Section 2.18. (b) Any prepayment of Loans pursuant to this Section 2.11 shall be made upon notice (which shall be irrevocable unless otherwise agreed by the Administrative Agent) delivered to the Administrative Agent no later than 12:00 Noon (New York City time), three (3) Eurodollar Business Days prior thereto, in the case of Eurodollar Loans, and no later than 12:00 Noon (New York City time), one (1) Business Day prior thereto, in the case of Base Loans, which notice shall specify the date and amount of prepayment and whether the prepayment is of Eurodollar Loans or Base Rate Loans; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.14. Upon receipt of any such notice the Administrative Agent shall promptly notify each Bank thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein. The application of any mandatory prepayment pursuant to this Section 2.11 shall be made, first, to Base Rate Loans, and second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 shall be accompanied by accrued and unpaid interest thereon to the date of such prepayment on the amount so prepaid. Section 2.12. General Provisions as to Payments. (a) The Borrower shall make each payment of the principal of and interest on the Loans and fees hereunder, without set-off or counterclaim, by initiating a wire transfer not later than 12:00 Noon (New York City time) on the date when due, of Federal funds immediately available in New York, New York, to the Administrative Agent at its address referred to in Section 9.1, it being understood that written or facsimile notice by the Borrower to the Administrative Agent to make a payment from the funds in the Borrower’s account maintained at the Administrative Agent shall constitute the making of such payment to the extent of such funds held in such account. The Administrative Agent will promptly (and in any event within one (1) Business Day after receipt thereof) distribute to each Bank its ratable share in accordance with the amount of such Bank’s relevant outstanding Loans, of each such payment received by the Administrative Agent for the account of the Banks. If and to the extent that the Administrative Agent shall receive any such payment for the account of the Banks on or before 11:00 a.m. (New York City time) on any Business Day (or Eurodollar Business Day, as applicable), and the Administrative Agent shall not have distributed to any Bank its applicable share of such payment on such day, the Administrative Agent shall distribute such amount to such Bank together with interest thereon, for each day from the date such amount should have been distributed to such Bank until the date the Administrative Agent distributes such amount to such Bank, at the Federal Funds Rate. Whenever any payment of principal of, or interest on the Base Rate Loans or of fees shall be due on a day which is not a Business Day, the date for payment thereof shall be extended to the next succeeding Business Day. Whenever any payment of principal of, or interest on, the Eurodollar Loans shall be due on a day which is not a Eurodollar Business Day, the date for payment thereof shall be extended to the next succeeding Eurodollar Business Day unless such Eurodollar Business Day falls in another calendar month, in which case the date for payment thereof shall be the immediately preceding Eurodollar Business Day. If the date for any payment of principal is extended by operation of law or otherwise, interest thereon shall be payable for such extended time. - 33-
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limitations described in this Agreement, and withdraw or substitute (and the Administrative Agent shall be authorized to release liens thereon) any Covered Asset so long as (I) no Payment Default or Event of Default shall have occurred and be continuing, (II) the Facility Collateral Coverage Ratio as of the date of such proposed withdrawal or substitution is greater than 1.90 to 1.00, in the case of both clauses (I) and (II), after giving pro forma effect to such proposed withdrawal or substitution, (III) the inclusion of any new asset as a Covered Asset would not conflict with any of the terms of the debt documents governing any of the Borrower’s material Indebtedness, and an officer of the Borrower shall certify as to the absence of any such conflict prior to or substantially contemporaneously with such inclusion, (IV) the Borrower shall have complied with Section 5.1(n), after giving effect thereto, (i) the Total Revolving Loans shall not exceed the lesser of (x) the Total Commitments and (y) the Borrowing Base as reflected in a Borrowing Base Certificate delivered on such date of inclusion which shall reflect the adjustments required pursuant to clause (vii) of the definition of Designated Valuation Amount and (V) the representations and warranties of the Covered Parties contained in the Loan Documents shall be true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the date of such addition, withdrawal or substitution after giving effect thereto. (c) An asset previously withdrawn as a Covered Asset pursuant to the terms hereof may be subsequently redesignated as a Covered Asset and a Borrowing Base Asset provided it satisfies the criteria described in this Agreement and subject to delivery of a BPO with respect to such asset in accordance with Section 5.1(k)(ii). The Borrower may also withdraw an asset as a Covered Asset (and the Administrative Agent shall be authorized to release liens thereon) at any time if the Borrowing Base Value of such asset is zero. Other than as set forth in this Section 2.18(b), an asset may not be withdrawn as a Covered Asset and the Covered Subsidiaries shall at all times own the Covered Assets. Such withdrawal, and where appropriate release of lien, shall be effected in accordance with Section 9.17 and the Collateral Documents. (d) With respect to any addition of a Covered Asset, the Borrower shall promptly (i) execute and deliver to the Administrative Agent such amendments to the Security Agreement as the Administrative Agent deems necessary or advisable to grant to the Administrative Agent, for the benefit of the Banks, a perfected first priority security interest in the Capital Stock of the Subsidiary that owns such Covered Asset, (ii) deliver to the Administrative Agent (A) the certificates representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of such Subsidiary, and (B) the documents described in Section 3.1(g) as to such Subsidiary, (iii) cause such Subsidiary (A) to execute and deliver to the Administrative Agent an Acknowledgment and Consent in the form attached to the Security Agreement, (B) to become a party to the Negative Pledge Agreement, (C) to become party to the Affiliate Subordination Agreement, and (D) to take such actions necessary or advisable to grant to the Administrative Agent for the benefit of the Banks a perfected first priority security interest in the Collateral with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Security Agreement or by law or as may be requested by the Administrative Agent, (iv) satisfy the condition described in Section 3.1(j) as to such Subsidiary, (v) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent and (vi) if such Covered Asset is a Loan Asset and if the Look-Through LTV for such Loan Asset is less than or equal to 45%, deliver to the Administrative Agent the Investment Memo for such Loan Asset. (e) If at any time, there are less than ten (10) Borrowing Base Assets, the Borrower shall within 30 days after such occasion prepay the Loans to zero or cause one or more additional Eligible Credit Tenant Lease Assets or Eligible Loan Assets to become Covered Assets (and Borrowing Base - 35-
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(c) the Borrower shall have executed and delivered to the Administrative Agent a duly executed original of the Security Agreement and each other Collateral Document and each issuer of equity interests pledged pursuant to the Security Agreement shall have executed and delivered to the Administrative Agent an Acknowledgment and Consent in the form attached to the Security Agreement; (d) the Administrative Agent shall have received a duly executed Affiliate Subordination Agreement, duly executed by the Covered Parties; (e) the Administrative Agent shall have received any certificates representing Pledged Stock described in the Security Agreement and required to be delivered thereunder as of the Closing Date and appropriate transfer documents with respect to any such certificates included in the Collateral as of the Closing Date, signed in blank by the Borrower or the other owner thereof and, each document (including, without limitation, any Uniform Commercial Code financing statement to be filed in the jurisdiction of organization of the Borrower) required by the Security Agreement or under law or reasonably requested by the Administrative Agent to be filed, registered, recorded or delivered in order to create or perfect the Liens intended to be created under the Security Agreement shall have been delivered to the Administrative Agent in proper form for filing, registration or recordation (if applicable); (f) the Administrative Agent shall have received opinions of (i) Xxxxxxxx Chance US LLP, special counsel for the Borrower, (ii) Xxxxxxxx Xxxxx, Esq., in-house counsel for the Borrower, and (iii) Xxxxxxx LLP, special Maryland counsel to the Borrower, each acceptable to the Administrative Agent, the Banks and their counsel; (g) the Administrative Agent shall have received all documents the Administrative Agent may reasonably request relating to the existence of the Borrower and each other Covered Party as of the Closing Date, the authority for and the validity of this Agreement and the other Loan Documents, the incumbency of officers executing this Agreement and the other Loan Documents and any other matters relevant hereto, all in form and substance satisfactory to the Administrative Agent. Such documentation shall include, without limitation, the articles of incorporation, certificate of formation or similar organizational document of each such entity, as amended, modified or supplemented on or prior to the Closing Date, certified to be true, correct and complete by a senior officer of such entity as of the Closing Date, together with a good standing certificate as to each such entity from the Secretary of State (or the equivalent thereof) of its jurisdiction of organization, to be dated as of a date within ten Business Days from the Closing Date. Any such organizational documents of each Covered Subsidiary shall provide for, and require that there at all times be, a special director or member whose consent would be required for a bankruptcy filing by such Covered Subsidiary or for the transfer of any equity interests therein (other than the sale of such equity interests in a transaction permitted under the Loan Documents) and shall otherwise be satisfactory to the Administrative Agent; (h) the Borrower shall have executed a solvency certificate reasonably acceptable to the Administrative Agent; (i) the Administrative Agent shall have received all certificates, agreements and other documents and papers referred to in this Section 3.1 and the Notice of Borrowing referred to in Section 2.3, unless otherwise specified, in sufficient counterparts, satisfactory in form and substance to the Administrative Agent in its reasonable discretion; (j) each Covered Party shall have taken all actions required to authorize the execution and delivery of (i) in the case of the Borrower, this Agreement and (ii) in the case of the Borrower and each other Covered Party, any other Loan Document to which it is a party and the performance thereof by the Borrower or such other Covered Party, as applicable; - 37-
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(k) the Banks shall be satisfied that the Borrower is not subject to any present or contingent Environmental Claim which, if adversely determined, would reasonably be expected to have a Material Adverse Effect on the Borrower, and the Borrower shall have delivered to the Administrative Agent a certificate of a senior officer of the Borrower so stating; (l) (i) the Administrative Agent shall have received, on or before the Closing Date, (x) for its and any other Bank’s account, (A) all accrued and unpaid fees as of the Closing Date pursuant to Section 2.8 of the Existing Credit Agreement and (B) all fees due and payable pursuant to Section 2.8 on or before the Closing Date and (y) all other fees required to be paid and all expenses for which invoices have been presented and (ii) the reasonable and documented fees and expenses accrued through the Closing Date of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP shall have been paid to Xxxxxxx Xxxxxxx & Xxxxxxxx LLP; (m) the Borrower shall have delivered copies of all consents, licenses and approvals (subject to Section 4.3), if any, required in connection with the execution, delivery and performance by the Borrower or any other Covered Party, or the validity and enforceability, of the Loan Documents, or in connection with any of the transactions contemplated thereby, and such consents, licenses and approvals shall be in full force and effect; (n) no Default or Event of Default shall have occurred and be continuing before or immediately after giving effect to the transactions contemplated hereby; (o) the Administrative Agent shall have received (x) the Collateral and Covered Assets List, which shall be in form and substance reasonably satisfactory to the Administrative Agent and (y) a Borrowing Base Certificate, dated as of the Closing Date and duly executed by a financial officer of the Borrower, reflecting a Borrowing Base as of the Closing Date of not less than $350,000,000; (p) the Borrower shall have delivered Projections which shall include (x) the Borrower’s projected sources and uses of cash (and the timing thereof) through a date that is on or after the Term Loan Maturity Date and (y) that such sources are at all times sufficient for such uses; (q) the representations and warranties of the Covered Parties contained in the Loan Documents shall be true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Closing Date both before and after giving effect to the transactions contemplated hereby; (r) the Administrative Agent shall have received the results of a recent Lien search with respect to the Borrower and each other Covered Party and such search shall reveal no Liens on any of the Covered Assets or the Collateral except for Liens permitted by Section 5.15 and the Negative Pledge Agreement or discharged on or prior to the Closing Date pursuant to documentation satisfactory to the Administrative Agent; and (s) any Bank that so reasonably requests (in writing) at least two Business Days prior to the Closing Date shall have received, through the Administrative Agent, all U.S.A. PATRIOT Act information required under Section 9.15. Section 3.2. Borrowings. The obligation of any Bank to make a Revolving Loan is subject to the following conditions: (a) after giving effect to such Borrowing on the applicable Borrowing Date, (i) the Total Revolving Loans shall not exceed the lesser of (x) the Total Commitments and (y) the Borrowing - 38-
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reasonable detail the calculations required to establish whether the Borrower was in compliance with the requirements of Section 5.9 on the date of such financial statements, (ii) certifying (x) that such financial statements fairly present the financial condition and the results of operations of the Borrower and its Consolidated Subsidiaries on the dates and for the periods indicated, on the basis of GAAP, subject, in the case of interim financial statements, to normally recurring year-end adjustments, and (y) that such officer has reviewed the terms of the Loan Documents and has made, or caused to be made under his or her supervision, a review in reasonable detail of the business and condition of the Borrower and its Consolidated Subsidiaries during the period beginning on the date through which the last such review was made pursuant to this Section 5.1(c) (or, in the case of the first certification pursuant to this Section 5.1(c), the Closing Date) and ending on a date not more than ten (10) Business Days prior to, but excluding, the date of such delivery and that (1) on the basis of such financial statements and such review of the Loan Documents, no Event of Default existed under Section 6.1(b) with respect to Section 5.9 at or as of the date of such financial statements, and (2) on the basis of such review of the Loan Documents and the business and condition of the Borrower and its Consolidated Subsidiaries, to the best knowledge of such officer, as of the last day of the period covered by such certificate no Default or Event of Default under any other provision of Section 6.1 occurred and is continuing or, if any such Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof and, the action the Borrower proposes to take in respect thereof (and such certificate shall set forth the calculations required to establish the matters described in clause (1) above) and (iii) setting forth the Total Corporate Leverage Ratio as at the end of such period referred to in clauses (a) and (b) above and setting forth in reasonable detail the calculations required to establish such Total Corporate Leverage Ratio (it being understood that, notwithstanding the proviso in the introductory paragraph of this Section 5.1, this clause (iii) may be satisfied by the delivery of the Borrower’s Earnings Presentation for such period to the extent the Borrower continues to report the Total Corporate Leverage Ratio in the ordinary course therein) and (II) updated Projections for the next successive four-quarter period; (d) (i) within five (5) Business Days after any officer of any Covered Party obtains knowledge of any Default or Event of Default, if such Default or Event of Default is then continuing, a certificate of the chief financial officer, or other executive officer of the Borrower, setting forth the details thereof and the action which the Borrower is taking or proposes to take with respect thereto; and (ii) promptly and in any event within five (5) Business Days after any Covered Party obtains knowledge thereof, notice of (x) any litigation or governmental proceeding pending or threatened against the Borrower or any Consolidated Subsidiary or its directly or indirectly owned Real Property Assets as to which there is a reasonable possibility of an adverse determination and which, if adversely determined, is likely to individually or in the aggregate, result in a Material Adverse Effect, and (y) any other event, act or condition which is likely to result in a Material Adverse Effect; (e) promptly upon the mailing thereof to the shareholders of the Borrower generally, copies of all proxy statements or any other materials so mailed; (f) promptly and in any event within thirty (30) days, if and when any member of the ERISA Group (i) gives or is required to give notice to the PBGC of any “reportable event” (as defined in Section 4043 of ERISA) with respect to any Plan which might constitute grounds for a termination of such Plan under Title IV of ERISA, or knows that the plan administrator of any Plan has given or is required to give notice of any such reportable event, a copy of the notice of such reportable event given or required to be given to the PBGC; (ii) receives notice of complete or partial withdrawal liability under Title IV of ERISA or notice that any Multiemployer Plan is Insolvent or has been terminated, a copy of such notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent to terminate, impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of such notice; (iv) applies for a waiver of the minimum funding standard under Section 412 of the Code, a copy of such application; (v) gives notice of intent to terminate any Plan - 47-
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under Section 4041(c) of ERISA, a copy of such notice and other information filed with the PBGC; (vi) gives notice of withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such notice; or (vii) fails to make any payment or contribution to any Plan or Multiemployer Plan or makes any amendment to any Plan which has resulted or could result in the imposition of a Lien or the posting of a bond or other security, in each case to the extent any occurrence covered by any of clauses (i) through (vii) above, would reasonably be expected to result in a Material Adverse Effect. In the event notice is required pursuant to this Section 5.1(f), the Borrower shall provide a certificate of the chief financial officer or the chief accounting officer of the Borrower setting forth details as to such occurrence and action, if any, which the Borrower or applicable member of the ERISA Group is required or proposes to take; (g) promptly and in any event within ten (10) days after any Covered Party obtains actual knowledge of any of the following events, a certificate of the Borrower, executed by an officer of the Borrower, specifying the nature of such condition, and the Borrower’s or, if the Borrower has actual knowledge thereof, the Environmental Affiliate’s proposed initial response thereto: (i) the receipt by the Borrower, or any of the Environmental Affiliates of any communication (written or oral), whether from a governmental authority, citizens group, employee or otherwise, that alleges that the Borrower, or any of the Environmental Affiliates, is not in compliance with applicable Environmental Laws, and such noncompliance would reasonably be expected to have a Material Adverse Effect, (ii) the existence of any Environmental Claim pending against the Borrower or any Environmental Affiliate and such Environmental Claim would reasonably be expected to have a Material Adverse Effect or (iii) any release, emission, discharge or disposal of any Material of Environmental Concern that would reasonably be expected to form the basis of any Environmental Claim against the Borrower or any Environmental Affiliate or would reasonably be expected to interfere with the Borrower’s Business or the fair saleable value or use of any of its Properties, which in any such event would reasonably be expected to have a Material Adverse Effect; (h) promptly and in any event within five (5) Business Days after receipt of any notices or correspondence from any company or agent for any company providing insurance coverage to the Borrower or any other Covered Party relating to any loss which is likely to result in a Material Adverse Effect, copies of such notices and correspondence; (i) as soon as available and in any event within fifteen (15) Business Days after the end of each fiscal quarter, commencing with the first fiscal quarter following the Closing Date, a Borrowing Base Certificate duly executed by a financial officer of the Borrower setting forth in reasonable detail the calculation of the Borrowing Base as at the end of such quarter, together with sufficient information to calculate each of the limitations set forth in the definition of “Borrowing Base” as at the end of such quarter and whether each such Borrowing Base Asset is categorized as construction, healthcare or hospitality, based upon the best available information at such time as certified by a financial officer of the Borrower; (j) as soon as available and in any event (A) on or before the fifteenth day of each calendar month in respect of the immediately prior calendar month (other than a month in which a Borrowing Base Certificate is required to be delivered pursuant to Section 5.1(i)) a certificate from an financial officer of the Borrower (a “Monthly Certificate”) specifying (i) any adjustments in the Borrowing Base Value of any Borrowing Base Asset that is not reflected in the most recent Borrowing Base Certificate, as a result of (x) any principal payments actually paid or prepaid on account of any Loan Assets (excluding any scheduled amortization payments actually paid) and (y) any Borrowing Base Asset becoming a Non-Performing Loan Asset or a Non-Cash Flow Credit Tenant Lease Asset, (ii) the most recent Total Corporate Leverage Ratio delivered in accordance with Section 5.1(c)(I)(iii) and (iii) the resulting aggregate amount of the Borrowing Base and (B) within three Business Days after obtaining - 48-
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(c) the Borrower or any Covered Party shall fail to observe or perform any covenant or agreement contained in this Agreement or any other Loan Document (other than those covered by clause (a), (b), (e), (f), (g), (h), (i), (l) or (n) of this Section 6.1) for 30 days after written notice thereof has been given to the Borrower by the Administrative Agent; or if such default is of such a nature that it cannot with reasonable effort be completely remedied within said period of thirty (30) days such additional period of time as may be reasonably necessary to cure same, provided the Borrower commences such cure within said thirty (30) day period and diligently prosecutes same, until completion, but in no event shall such extended period exceed ninety (90) days; or (d) any representation, warranty, certification or statement that is made by the Borrower in this Agreement or by the Borrower or any other Covered Party in any other Loan Document to which it is a party or that is contained in any certificate, financial statement or other document delivered pursuant to this Agreement or any other Loan Document, shall prove to have been incorrect in any material respect when made (or deemed made); or (e) the Borrower or any Subsidiary shall default in the payment when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) of any amount owing in respect of any Recourse Debt (other than the Obligations) for which the aggregate outstanding principal amounts exceed $75,000,000 and such default shall continue beyond the giving of any required notice and the expiration of any applicable grace period and such default has not been waived, in writing, by the holder of any such Recourse Debt; or the Borrower or any Subsidiary shall default in the performance or observance of any obligation or condition with respect to any such Recourse Debt or any other event shall occur or condition exist beyond the giving of any required notice and the expiration of any applicable grace period, in each case if the effect of such default, event or condition is to accelerate the maturity of any such indebtedness or to permit (without any further requirement of notice or lapse of time) the holder or holders thereof, or any trustee or agent for such holders, to accelerate the maturity of any such indebtedness; or (f) (i) the Borrower or (ii) any Subsidiary of the Borrower or any Investment Affiliate of the Borrower to which, either individually or in the aggregate, $100,000,000 or more of the Borrower’s Consolidated Tangible Net Worth is attributable, or (iii) a Pledged Subsidiary shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due, or shall take any action to authorize any of the foregoing; or (g) an involuntary case or other proceeding shall be commenced against (i) the Borrower, (ii) any Subsidiary of the Borrower or any Investment Affiliate of the Borrower to which, either individually or in the aggregate, $100,000,000 or more of the Borrower’s Consolidated Tangible Net Worth is attributable, or (iii) any Pledged Subsidiary seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of ninety (90) days; or an order for relief shall be entered against the Borrower, any such Subsidiary of the Borrower, any such Investment Affiliate or any such Pledged Subsidiary under the federal bankruptcy laws as now or hereafter in effect; or - 55-
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(h) one or more final, non-appealable judgments or decrees in an aggregate amount of $75,000,000 or more shall be entered by a court or courts of competent jurisdiction against the Borrower or any Subsidiary of the Borrower (other than any judgment as to which, and only to the extent, a reputable insurance company has acknowledged coverage of such claim in writing), and (i) any such judgments or decrees shall not be stayed, discharged, paid, bonded or vacated within ninety (90) days or (ii) enforcement proceedings shall be commenced by any creditor on any such judgments or decrees; or (i) there shall be a replacement of a majority of the Board of Directors of the Borrower over a two-year period from the directors who constituted the Board of Directors of the Borrower at the beginning of such period, and such replacement shall not have been approved by a vote of at least a majority of the Board of Directors of the Borrower then still in office who were either members of such Board of Directors at the beginning of such period or whose election as a member of such Board of Directors was previously so approved; or (j) any Person or “group” (as such term is defined in applicable federal securities laws and regulations) shall become the owner, directly or indirectly, beneficially or of record, of shares representing more than forty percent (40%) of the aggregate ordinary voting power represented by the issued and outstanding common shares of the Borrower; or (k) if any Termination Event with respect to a Plan or Multiemployer Plan shall occur as a result of which Termination Event or Events any member of the ERISA Group has incurred or may incur any liability to the PBGC or any other Person and the sum (determined as of the date of occurrence of such Termination Event) of the insufficiency of such Plan or Multiemployer Plan and the insufficiency of any and all other Plans and Multiemployer Plans with respect to which such a Termination Event shall occur and be continuing (or, in the case of a Multiple Employer Plan with respect to which a Termination Event described in clause (ii) of the definition of Termination Event shall occur and be continuing and in the case of a liability with respect to a Termination Event which is or could be a liability of the Borrower rather than a liability of the Plan, the liability of the Borrower) is equal to or greater than $50,000,000 and which the Required Banks reasonably determine will have a Material Adverse Effect; or (l) if, any member of the ERISA Group shall commit a failure described in Section 303(k)(1) of ERISA or Section 430(k)(1) of the Code and the amount of the lien determined under Section 303(k)(3) of ERISA or Section 430(k)(3) of the Code that could reasonably be expected to be imposed on any member of the ERISA Group or their assets in respect of such failure shall be equal to or greater than $50,000,000 and which the Required Banks reasonably determine will have a Material Adverse Effect; or (m) any assets of the Borrower shall constitute “plan assets” (within the meaning of Section 3(42) of ERISA or Section 4975 of the Code, including but not limited to 29 C.F.R. § 2510.3-101 or any successor regulation thereto) of an “employee benefit plan” within the meaning of Section 3(3) of ERISA and subject to Title I of ERISA or a “plan” within the meaning of, and subject to, Section 4975(e)(1) of the Code; or (n) at any time, for any reason the Borrower repudiates in writing its payment obligations under any Loan Document or any Covered Party repudiates in writing its negative pledge obligations under the Negative Pledge Agreement or any other Loan Document; or (o) this Agreement or any Collateral Document shall not, for any reason, be in full force and effect (or any Covered Party shall so assert), or any security interest purported to be created by any of the Collateral Documents shall not be a valid, enforceable and perfected security interest having - 56-
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making or maintaining any Eurodollar Loan, or to reduce the amount of any sum received or receivable by such Bank (or its Applicable Lending Office) under this Agreement or under its Note with respect to such Eurodollar Loans, by an amount reasonable determined by such Bank to be material, then, within 15 days after demand by such Bank (with a copy to the Administrative Agent), the Borrower shall pay to such Bank such additional amount or amounts (based upon a reasonable allocation thereof by such Bank to the Eurodollar Loans made by such Bank hereunder) as will compensate such Bank for such increased cost or reduction to the extent such Bank generally imposes such additional amounts on other borrowers of such Bank in similar circumstances; provided however, that notwithstanding anything herein to the contrary, the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and Basel III all requests, rules, guidelines or directives thereunder or issued in connection therewith shall be deemed to be a change in law, regardless of the date enacted, adopted or issued. (b) If any Bank shall have reasonably determined that, after the date hereof, the adoption of any applicable law, rule or regulation regarding capital or liquidity requirements, or any change in any such law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or any request or directive regarding capital or liquidity requirements (whether or not having the force of law) made after the Closing Date of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on capital of such Bank (or its Parent) as a consequence of such Bank’s obligations hereunder to a level below that which such Bank (or its Parent) could have achieved but for such adoption, change, request or directive (taking into consideration its policies with respect to capital adequacy) by an amount reasonably deemed by such Bank to be material, then from time to time, within 15 days after demand by such Bank (with a copy to the Administrative Agent), the Borrower shall pay to such Bank such additional amount or amounts as will compensate such Bank (or its Parent) for such reduction to the extent such Bank generally imposes such additional amounts on other borrowers of such Bank in similar circumstances. (c) Notwithstanding anything herein to the contrary, (i) all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or by United States or foreign regulatory authorities, in each case pursuant to Basel III, and (ii) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder or issued in connection therewith or in implementation thereof, shall in each case be deemed to be a change in law, regardless of the date enacted, adopted, issued or implemented. (d) Each Bank will promptly notify the Borrower and the Administrative Agent of any event of which it has knowledge, occurring after the date hereof, which will entitle such Bank to compensation pursuant to this Section and will designate a different Applicable Lending Office if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the reasonable judgment of such Bank, be otherwise disadvantageous to such Bank. Notwithstanding the foregoing, if such Bank shall fail to notify the Borrower of any such event within ninety (90) days following the end of the month during which such event occurred, then the Borrower’s liability for any amounts described in this Section incurred by such Bank as a result of such event shall be limited to those attributable to the period occurring subsequent to the ninetieth (90th) day prior to, but excluding, the date upon which such Bank actually notified the Borrower of the occurrence of such event. A certificate of any Bank claiming compensation under this Section and setting forth a reasonably detailed calculation of the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of demonstrable error. In determining such amount, such Bank may use any reasonable averaging and attribution methods. - 66-
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(d) Each Bank that is a United States person for U.S. federal income tax purposes, on or prior to the date of its execution and delivery of this Agreement in the case of each Bank listed on the signature pages hereof and on or prior to the date on which it becomes a Bank in the case of each other Bank (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), shall provide the Borrower and the Administrative Agent with two duly completed copies of Internal Revenue Service Form W-9 or any successor form prescribed by the Internal Revenue Service and shall provide the Borrower and the Administrative Agent with two further copies of any such form on or before the date any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered to the Borrower and the Administrative Agent. Each Bank that is not a United States person for U.S. federal income tax purposes, on or prior to the date of its execution and delivery of this Agreement in the case of each Bank listed on the signature pages hereof and on or prior to the date on which it becomes a Bank in the case of each other Bank (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), shall provide the Borrower and the Administrative Agent with two duly completed copies of an Internal Revenue Service Form W-8BENE, W-8ECI, or W-8IMY as applicable to such Bank, or any successor form prescribed by the Internal Revenue Service, and shall provide the Borrower and the Administrative Agent with two further copies of any such form on or before the date that any such form expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Borrower and the Administrative Agent. A Bank that provides copies of the Internal Revenue Service Form W-8BENE and that is legally entitled to claim the portfolio interest exemption pursuant to Section 881(c) of the Code, shall further provide the Borrower and the Administrative Agent with, together with such Internal Revenue Service Form W- 8BENE, a written confirmation of its entitlement to such exemption substantially in the form of Exhibit J. To the extent that it is legally entitled to do so, a Bank shall properly claim that such Bank is entitled to benefits under an income tax treaty to which the United States is a party which reduces the rate of, or eliminates, withholding tax on payments of interest hereunder. A Bank that is not a United States person and that grants a participating interest in a Loan or Commitment to any other Person shall provide, in addition to its own forms specified above, the Borrower and the Administrative Agent with two duly completed copies of the Internal Revenue Service form applicable to such other Person, each under the cover of an Internal Revenue Service Form W-8IMY and a withholding statement prepared in the manner prescribed by the Internal Revenue Service, or such other forms and/or certificates evidencing such Participant’s entitlement to any exemption from, or reduction in the rate of U.S. withholding tax, and shall provide the Borrower and the Administrative Agent with two further copies of any such forms and statements on or before the date any such forms or statements expire or become obsolete and after the occurrence of any event requiring a change in the most recent form or statement previously delivered to the Borrower and the Administrative Agent. Each Bank that is not a United States person for U.S. federal income tax purposes shall deliver to the Borrower and the Administrative Agent any other form prescribed by applicable requirements of U.S. federal income tax law as a basis for claiming exemption from or a reduction in U.S. federal withholding tax duly completed together with such supplementary documentation as may be prescribed by applicable requirements of law to permit the Borrower and the Administrative Agent to determine the withholding or deduction required to be made. If a Bank fails to timely and properly provide or update such forms or statements (unless such failure is due to a change in treaty, law or regulation occurring subsequently to the time such Bank first becomes a party to this Agreement) or if the form or statement provided by a Bank at the time such Bank first becomes a party to this Agreement indicates a United States withholding tax rate in excess of zero, then backup withholding or withholding tax resulting from the foregoing shall be considered excluded from “Non-Excluded Taxes” as defined in Section 8.4(a), except to the extent that, in the case of United States withholding tax, such Bank’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower or its Consolidated Subsidiary with respect to such United States withholding tax. Notwithstanding any other provision of this paragraph (d)(i), no Bank shall be required to deliver any - 68-
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form, statement, certificate or supplementary documentation pursuant to this paragraph (d)(i) that such Bank is not legally able to deliver. (e) Upon reasonable demand by, and at the expense of, the Borrower or the Administrative Agent to any Bank, the Bank shall deliver to the Borrower and the Administrative Agent, or to such government or taxing authority as the Borrower or the Administrative Agent may reasonably direct, any form or document that may be required or reasonably requested in writing in order to allow a payment to be made hereunder or under any other Loan Document without any deduction or withholding for or on account of any Non-Excluded Taxes or with such deduction or withholding at a reduced rate (so long as the completion, execution or submission of such form or document would not materially prejudice the legal or commercial position of the party in receipt of such demand), with any such form or document to be accurate and completed in a manner reasonably satisfactory to the Borrower or the Administrative Agent making such demand and to be executed and to be delivered with any reasonably required certification. (f) If a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Bank shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (f), “FATCA” shall include any amendments made to FATCA after the date of this Agreement. (g) For any period with respect to which a Bank has failed to provide the Borrower and the Administrative Agent with the appropriate form pursuant to (and to the extent required by) paragraph (d)(i) (unless such failure is due to a change in treaty, law or regulation occurring subsequent to the date on which a form originally was required to be provided), such Bank shall not be entitled to indemnification under Section 8.4(c) with respect to Non-Excluded Taxes imposed by the United States, to the extent that such Non-Excluded Taxes would not have been imposed but for such Bank’s failure to provide such form; provided, however, that should a Bank, which is otherwise exempt from or subject to a reduced rate of withholding tax, become subject to Non-Excluded Taxes because of its failure to deliver a form required hereunder, the Borrower shall take such steps as such Bank shall reasonably request to assist such Bank to recover such taxes so long as the Borrower shall incur no cost or liability as a result thereof. (h) If the Borrower is required to pay additional amounts to or for the account of any Bank pursuant to this Section 8.4, then such Bank will, if requested in writing by the Borrower, use reasonable efforts to change the jurisdiction of its Applicable Lending Office so as to eliminate or reduce any such additional payment which may thereafter accrue if such change, in the reasonable judgment of such Bank, will not subject such Bank to any unreimbursed cost or expense and is not otherwise disadvantageous to such Bank; provided, that nothing in this Section 8.4(h) shall affect or postpone any of the obligations of the Borrower or the rights of any Bank pursuant to this Section 8.4. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Bank in connection with any such change. - 69-
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(i) If at any time, any Bank has demanded compensation pursuant to Section 8.3 or Section 8.4 or the obligation of such Bank to make Eurodollar Loans has been suspended pursuant to Section 8.2, in any such case, the Borrower shall have the right, upon five (5) Business Day’s notice to the Administrative Agent to either (x) in accordance with Section 9.6(c), cause an Assignee to offer to purchase the Commitments of such Bank for an amount equal to such Bank’s outstanding Loans plus accrued interest, fees and other amounts due to such Bank, and to become a Bank hereunder, or to obtain the agreement of one or more existing Banks to offer to purchase the Commitments of such Bank for such amount, which offer such Bank is hereby required to accept, or (y) to repay in full all Loans then outstanding of such Bank, together with interest and all other amounts due thereon; provided that (i) any replacement of a Bank under this paragraph does not conflict with any organizational or governing documents of any Person and any law, treaty rule or regulation applicable to or binding upon such Person or any of its property, (ii) prior to any replacement under this paragraph, such Bank shall have taken no action under Section 8.4(h) so as to eliminate the continued need for payments of amounts owing pursuant to Section 8.3 or 8.4, (iii) the replacement financial institution shall be reasonably satisfactory to the Administrative Agent, (iv) the replaced Bank shall be obligated to make such replacement in accordance with the provisions of Section 9.6 (provided that the Borrower shall be obligated to pay the registration and processing fee referred to therein), (v) until such time as such replacement shall be consummated, the Borrower shall pay all additional amounts (if any) required pursuant to Section 8.3 or 8.4, as the case may be, and (vi) any such replacement shall not be deemed to be a waiver of any rights that the Borrower, the Administrative Agent or any other Bank shall have against the replaced Bank. (j) Each Bank shall severally indemnify the Administrative Agent for the full amount of any taxes, duties, levies, imposts, deductions, charges or withholdings imposed by any taxation authority or other authority, that are attributable to (i) such Bank (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Non-Excluded Taxes or Other Taxes and without limiting the obligation of the Borrower to do so) or (ii) such Bank’s failure to comply with the provisions of Section 9.6(b) relating to the maintenance of a Participant Register and, in either case, that are payable or paid by the Administrative Agent, together with all interest, penalties, reasonable costs and expenses arising therefrom or with respect thereto, as determined by the Administrative Agent in good faith. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to the Bank from any other source against any amount due to the Administrative Agent under this paragraph (j). (k) If a Bank or the Administrative Agent determines, in its sole discretion, that it has received a refund of any Non-Excluded Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section 8.4, it shall pay to the Borrower within five (5) Business Days an amount equal to such refund (but only to the extent of indemnity payments made, or Non-Excluded Taxes paid, by the Borrower under this Section 8.4 with respect to the Non-Excluded Taxes giving rise to such refund), net of all out-of-pocket expenses of such Bank or the Administrative Agent and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided, that the Borrower, upon the request of such Bank or the Administrative Agent, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Bank or the Administrative Agent in the event such Bank or the Administrative Agent is required to repay such refund to such Governmental Authority. This paragraph shall not be construed to require any Bank or the Administrative Agent to make available its tax returns (or any other information relating to its taxes that it deems confidential) to the Borrower or any other person. Notwithstanding anything to the contrary, in no event will any Bank or the Administrative Agent be required to pay any amount to the Borrower the payment of which would place such Bank or the Administrative Agent in a less favorable net after tax - 70-
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Register pursuant to the terms hereof as the owner of such participation for all purposes of this Agreement, notwithstanding notice to the contrary. (c) (i) Subject to the conditions set forth in paragraph (c)(ii) below, any Bank may assign to one or more assignees (each, an “Assignee”), other than a natural person, the Borrower or any of the Borrower’s Affiliates or Subsidiaries, any Defaulting Bank or any of its Subsidiaries, all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments or Loans at the time owing to it) with the prior written consent of: (A) the Borrower (such consent not to be unreasonably withheld and provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within 10 Business Days after having received notice thereof), provided that no consent of the Borrower shall be required for an assignment to a Bank, an affiliate of a Bank, an Approved Fund (as defined below) or, if an Event of Default has occurred and is continuing, any other Person; and (B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of all or any portion of a Loan to a Bank, an affiliate of a Bank, an Approved Fund or an assignment to the Borrower as contemplated by Section 2.13. (ii) Assignments shall be subject to the following additional conditions: (A) except in the case of an assignment to a Bank, an affiliate of a Bank or an Approved Fund or an assignment of the entire remaining amount of the assigning Bank’s Commitments or Loans, the amount of the Commitments or Loans of the assigning Bank subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 (which shall be calculated as necessary to include any concurrent assignments by the assignor to an affiliate, or an Approved Fund, of the assignee) unless each of the Borrower and the Administrative Agent otherwise consents, provided that (1) no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Bank and its affiliates or Approved Funds, if any; (B) (1) the parties to each assignment shall execute and deliver to the Administrative Agent (x) an Assignment and Assumption or (y) to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to an Approved Electronic Platform as to which the Administrative Agent and the parties to the Assignment and Assumption are participants, together with a processing and recordation fee of $3,500 (other than in the case of an assignment to the Borrower as contemplated by Section 2.13) and (2) the assigning Bank shall have paid in full any amounts owing by it to the Administrative Agent; and (C) the Assignee, if it shall not be a Bank, shall deliver to the Administrative Agent an administrative questionnaire in which the Assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non- public information about the Borrower and its Affiliates and their related parties or their respective securities) will be made available and who may receive such information in - 76-
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accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws. For the purposes of this Section 9.6, “Approved Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Bank, (b) an affiliate of a Bank or (c) an entity or an affiliate of an entity that administers or manages a Bank. (iii) Subject to acceptance and recording thereof pursuant to paragraph (c)(iv) below, from and after the effective date specified in each Assignment and Assumption the Assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Bank under this Agreement, and the assigning Bank 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 Bank’s rights and obligations under this Agreement, such Bank shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 8.3, 8.4 and 9.3). Any assignment or transfer by a Bank of rights or obligations under this Agreement that does not comply with this Section 9.6 shall be treated for purposes of this Agreement as a sale by such Bank of a participation in such rights and obligations in accordance with paragraph (b) of this Section. (iv) The Administrative Agent, acting for this purpose as a non-fiduciary agent of the Borrower and permitting access thereto to the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Banks and each of their Assignees, and principal amount of the Loans and interest owing to, each Bank pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, and the Borrower, the Administrative Agent and the Banks shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Bank hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. (v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Bank and an Assignee, the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Bank hereunder), the processing and recordation fee referred to in paragraph (c)(ii)(B) of this Section and any written consent to such assignment required by paragraph (c)(i) of this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph. (d) Any Bank may at any time (1) assign, pledge or assign a security interest in all or any portion of its rights under this Agreement and its Note to secure obligations to a Federal Reserve Bank or (2) pledge or assign a security interest in all or any portion of its rights under this Agreement and its Note to secure obligations of such Bank, and this Section 9.6 shall not apply to any such assignment, pledge or assignment of a security interest. No such assignment, pledge or assignment of a security interest shall release the transferor Bank from its obligations hereunder or substitute such pledgee for such transferor Bank as a party hereto. (e) No Assignee, Participant, pledgee or other transferee of any Bank’s rights shall be entitled to receive any greater payment under Section 8.3 or Section 8.4 than such Bank would have - 77-
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(i) a reduction in full or in part or cancellation of any such liability; (ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or (iii) the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any EEA Resolution Authority. - 82-
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written. iSTAR INC., as the Borrower By: /s/ Authorized Signatory Name: Title: [iStar Second Amended and Restated Credit Agreement]
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JPMORGAN CHASE BANK, N.A., as the Administrative Agent and a Bank By: /s/Authorized Signatory Name: Title: [iStar Second Amended and Restated Credit Agreement]
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BANK OF AMERICA, N.A., as a Bank By: /s/Authorized Signatory Name: Title: [iStar Second Amended and Restated Credit Agreement]
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BARCLAYS BANK PLC, as a Bank By: /s/Authorized Signatory Name: Title: [iStar Second Amended and Restated Credit Agreement]
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XXXXXX XXXXXXX SENIOR FUNDING, INC., as a Bank By: /s/Authorized Signatory Name: Title: [iStar Second Amended and Restated Credit Agreement]
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XXXXXXX SACHS BANK USA, as a Bank By: /s/Authorized Signatory Name: Title: [iStar Second Amended and Restated Credit Agreement]