0001045450-21-000063.txt : 20211006 0001045450-21-000063.hdr.sgml : 20211006 20211006161449 ACCESSION NUMBER: 0001045450-21-000063 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 15 CONFORMED PERIOD OF REPORT: 20211006 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Results of Operations and Financial Condition ITEM INFORMATION: Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant ITEM INFORMATION: Material Modifications to Rights of Security Holders ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20211006 DATE AS OF CHANGE: 20211006 FILER: COMPANY DATA: COMPANY CONFORMED NAME: EPR PROPERTIES CENTRAL INDEX KEY: 0001045450 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 431790877 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-13561 FILM NUMBER: 211309896 BUSINESS ADDRESS: STREET 1: 909 WALNUT STREET STREET 2: SUITE 200 CITY: KANSAS CITY STATE: MO ZIP: 64106 BUSINESS PHONE: 8164721700 MAIL ADDRESS: STREET 1: 909 WALNUT STREET STREET 2: SUITE 200 CITY: KANSAS CITY STATE: MO ZIP: 64106 FORMER COMPANY: FORMER CONFORMED NAME: ENTERTAINMENT PROPERTIES TRUST DATE OF NAME CHANGE: 19970904 8-K 1 epr-20211006.htm 8-K epr-20211006
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 6, 2021
EPR Properties
(Exact name of registrant as specified in its charter)
Maryland 001-13561 43-1790877
(State or other jurisdiction of
incorporation)
 (Commission
File Number)
 (I.R.S. Employer
Identification No.)
909 Walnut Street,Suite 200
Kansas City,Missouri64106
(Address of principal executive offices) (Zip Code)
(816)472-1700
(Registrant’s telephone number, including area code) 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:
Title of each classTrading symbol(s)Name of each exchange on which registered
Common shares, par value $0.01 per shareEPRNew York Stock Exchange
5.75% Series C cumulative convertible preferred shares, par value $0.01 per shareEPR PrCNew York Stock Exchange
9.00% Series E cumulative convertible preferred shares, par value $0.01 per shareEPR PrENew York Stock Exchange
5.75% Series G cumulative redeemable preferred shares, par value $0.01 per shareEPR PrGNew York Stock Exchange

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.    o




Item 1.01.    Entry into a Material Agreement.

On October 6, 2021, EPR Properties (the "Company") entered into a Third Amended, Restated and Consolidated Credit Agreement (the "Amended Credit Agreement") providing for a $1.0 billion senior unsecured revolving credit facility (the "New Revolving Credit Facility") with KeyBank National Association ("KeyBank"), as administrative agent, and the other agents and lenders party thereto.

The Amended Credit Agreement amended, restated and replaced the Company's prior senior unsecured revolving credit and term loan facilities provided under the Second Amended, Restated and Consolidated Credit Agreement, dated as of September 27, 2017, as amended, among the Company, as borrower, KeyBank, as administrative agent, and the other agents and lenders party thereto. The amendments to the prior senior unsecured revolving credit and term loan facilities reflected in the Amended Credit Agreement, among other things: (i) eliminated the term loan facility (which the Company had previously prepaid in full on September 13, 2021); (ii) extended the maturity date of the revolving credit facility; (iii) improved the valuation of certain asset types for purposes of certain financial covenants under the revolving credit facility; and (iv) modified the Company's option to extend the maturity date of the revolving credit facility, subject to certain conditions.

The Amended Credit Agreement provides for an initial maximum principal amount of $1.0 billion available under the New Revolving Credit Facility (which includes a $100.0 million letter-of-credit subfacility and a $300.0 million foreign currency revolving credit subfacility). The Amended Credit Agreement contains an "accordion" feature under which the Company may increase the total maximum principal amount available under the Amended Credit Agreement by $1.0 billion, to a total of $2.0 billion. If the Company exercises all or any portion of the $1.0 billion accordion feature referenced above, the resulting increase in the New Revolving Credit Facility may have a shorter or longer maturity date and different pricing terms. Any exercise of the accordion feature requires the consent of each lender participating in the increased facility.

The New Revolving Credit Facility matures on October 6, 2025, subject to two six-month extensions (for a total of 12 months) exercisable at the Company's option. The Company's exercise of an extension option is subject to the absence of any default under the Amended Credit Agreement and the Company's compliance with certain conditions, including the payment of extension fees to the lenders under the New Revolving Credit Facility.

The full $1.0 billion of borrowing availability under the New Revolving Credit Facility was available at closing. The Company's ability to obtain revolving credit advances under the Amended Credit Agreement is contingent upon certain conditions, including the absence of a default under the Amended Credit Agreement. Revolving credit loan proceeds may be used for general business purposes, including the acquisition of real estate and other permitted investments.

The outstanding principal balance of U.S. dollar-denominated loans under the New Revolving Credit Facility bears interest at fluctuating rates. These rates are based on LIBOR or the Base Rate, at the Company's option, plus an applicable spread based on the ratings periodically assigned to the Company's senior long-term unsecured debt by rating agencies, as set forth in the table below. The Company also pays a facility fee on the total facility amount ($1.0 billion or, upon the exercise of the "accordion" feature described above, the resulting increased amount), which fee is calculated by multiplying the total facility amount by a fluctuating annual rate based on the ratings periodically assigned to the Company's senior long-term unsecured debt by rating agencies, as set forth in the table below.

S&P ratingMoody's ratingFitch's ratingBase rate spreadLIBOR spreadFacility fee
≥ A-≥ A3≥ A-0.00%0.825%0.125%
= BBB+= Baa1= BBB+0.00%0.875%0.15%
= BBB= Baa2= BBB0.10%1.00%0.20%
= BBB-= Baa3= BBB-0.20%1.20%0.25%
≤ BB+≤ Ba1≤ BB+0.55%1.55%0.30%




During any period that the Company has received credit ratings from any of the three rating agencies set forth in the table above which are not equivalent, pricing will be determined by the highest of the credit ratings, provided that the next highest credit rating is only one level below that of the highest credit rating. If the next highest credit rating is more than one level below that of the highest credit rating, pricing will be determined by the credit rating one level higher than the second highest credit rating. Different interest rates apply to loans outstanding under the New Revolving Credit Facility that are not denominated in U.S. Dollars.

The New Revolving Credit Facility does not require payment of an unused line fee on the unused portion of the New Revolving Credit Facility.

For purposes of the New Revolving Credit Facility: (i) "LIBOR" is determined based upon the Company's selection of interest periods of one-, two-, three- or six-months for LIBOR loans, subject to availability; and (ii) "Base Rate" is the greater of (a) the agent's prime rate of interest announced from time to time, or (b) 0.5% above the then-current Federal Funds Rate, or (c) 1.0% above the then-current 30-day LIBOR. The New Revolving Credit Facility includes customary LIBOR transition language that addresses the succession of LIBOR at a future date.

The Amended Credit Agreement contains customary covenants for credit facilities of this type, including restrictions on the ability of the Company and/or all or certain of its subsidiaries to take the following actions: (i) make distributions; (ii) incur debt; (iii) make investments; (iv) grant or suffer liens; (v) undertake mergers, consolidations, asset sales and other fundamental entity changes; (vi) make material changes to contracts and organizational documents; and (vii) enter into transactions with affiliates.

The Amended Credit Agreement also contains financial covenants applicable to the Company and some or all of its subsidiaries involving (i) maximum total debt to total asset value, (ii) maximum permitted investments, (iii) minimum tangible net worth, (iv) maximum secured debt to total asset value, (v) maximum unsecured debt to eligible unencumbered properties, (vi) minimum unsecured interest coverage, and (vii) minimum fixed charge coverage.

The Amended Credit Agreement provides for certain customary events of default, including among others, non-payment of principal, interest or other amounts when due, inaccuracy of representations and warranties, violation of covenants, cross defaults with certain other indebtedness, insolvency or inability to pay debts, bankruptcy, or a change of control.

The foregoing description of the Amended Credit Agreement does not purport to be complete and is subject to, and qualified in its entirety by, reference to the Amended Credit Agreement, which is attached hereto as Exhibit 10.1 and incorporated herein by reference.

Item 2.02.    Results of Operations and Financial Condition.

On October 6, 2021, the Company issued a press release providing a general business update. The Company's press release is attached as Exhibit 99.1 hereto and is incorporated by reference in this Item 2.02.

The information set forth in this Item 2.02, including Exhibit 99.1, is being "furnished" and shall not be deemed "filed" for the purposes of or otherwise subject to liabilities under Section 18 of the Securities Exchange Act of 1934, as amended, and shall not be deemed to be incorporated by reference into the filings of the Company under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended.

Item 2.03.    Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The information set forth under Item 1.01 above is incorporated herein by reference as if fully set forth herein.




Item 3.03.    Material Modification to Rights of Security Holders.

The information set forth under Item 1.01 above is incorporated herein by reference as if fully set forth herein.

Item 9.01. Financial Statements and Exhibits.

Exhibit No.Description
Third Amended, Restated and Consolidated Credit Agreement, dated as of October 6, 2021, among the Company, as borrower, KeyBank National Association, as administrative agent, and the other agents and lenders party thereto.
Press Release, dated October 6, 2021, issued by EPR Properties.
104Cover Page Interactive Data File (embedded within the Inline XBRL document)




SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
EPR PROPERTIES
By: /s/ Mark A. Peterson
 Mark A. Peterson
 Executive Vice President, Treasurer and Chief Financial
Officer
Date: October 6, 2021



















































EX-10.1 2 a8-k1062021exhibit101.htm EX-10.1 Document
Exhibit 10.1

_____________________________________________________________________________

THIRD AMENDED, RESTATED AND CONSOLIDATED CREDIT AGREEMENT

Dated as of October 6, 2021

by and among
EPR PROPERTIES,
as Borrower,
KEYBANK NATIONAL ASSOCIATION,
as Administrative Agent,

Each of JPMORGAN CHASE BANK, N.A., RBC CAPITAL MARKETS CORPORATION, CITIBANK, N.A., BANK OF AMERICA, N.A., AND BARCLAYS BANK PLC,
as Co-Syndication Agents,

each of
KEYBANC CAPITAL MARKETS, LLC, JPMORGAN CHASE BANK, N.A., RBC CAPITAL MARKETS CORPORATION, BOFA SECURITIES, INC., BARCLAYS BANK PLC, CITIGROUP GLOBAL MARKETS INC. AND BANK OF THE WEST,
as Joint Book Runners and Joint Lead Arrangers,

CITIZENS BANK, NATIONAL ASSOCIATION AND TRUIST BANK,
as Documentation Agents
and

THE FINANCIAL INSTITUTIONS INITIALLY SIGNATORY HERETO
AND THEIR ASSIGNEES PURSUANT TO SECTION 12.5,
as Lenders

_____________________________________________________________________________



TABLE OF CONTENTS
ARTICLE I. - DEFINITIONS
1
Section 1.1.    Definitions.
1
Section 1.2.    General; References to Times.
44
Section 1.3.    Currencies; Currency Equivalents.
45
Section 1.4.    Letter of Credit Amounts
47
Section 1.5.    Divisions
47
Section 1.6.    Benchmark Notification
47
ARTICLE II. - CREDIT FACILITY
47
Section 2.1.    Loans.
47
Section 2.2.    Letters of Credit.
49
Section 2.3.    Rates and Payment of Interest on Loans.
55
Section 2.4.    Number of Interest Periods.
55
Section 2.5.    Repayment of Loans.
56
Section 2.6.    Prepayments.
56
Section 2.7.    Continuation.
57
Section 2.8.    Conversion.
58
Section 2.9.    Notes.
58
Section 2.10.    Voluntary Reductions of the Commitment.
59
Section 2.11.    Expiration or Maturity Date of Letters of Credit Past Termination Date.
59
Section 2.12.    Amount Limitations.
60
Section 2.13.    [Reserved].
60
Section 2.14.    The Increased Loan Amount.
60
Section 2.15.    [Reserved].
62
Section 2.16.    Extension of Revolving Credit Termination Date.
62
ARTICLE III. - Payments, Fees and Other General Provisions
63
Section 3.1.    Payments.
63
Section 3.2.    Pro Rata Treatment.
64
Section 3.3.    Sharing of Payments, Etc.
65
Section 3.4.    Several Obligations.
65
Section 3.5.    Minimum Amounts.
65
Section 3.6.    Fees.
66
Section 3.7.    Computations.    
67
Section 3.8.    Usury.
67
Section 3.9.    Agreement Regarding Interest and Charges.
68
Section 3.10.    Statements of Account.
68
Section 3.11.    Defaulting Lenders.
68
Section 3.12.    Taxes.
72
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Section 3.13.    Special Provisions Regarding Alternate Currency Loans; Adjusted Sharing Event Commitments and Sharing Event Percentages
76
ARTICLE IV. - Yield Protection, Etc.
78
Section 4.1.    Additional Costs; Capital Adequacy.
78
Section 4.2.    Suspension of Eurocurrency Loans.
80
Section 4.3.    Illegality.
81
Section 4.4.    Compensation.
81
Section 4.5.    Affected Lenders.
82
Section 4.6.    Treatment of Affected Loans.    
82
Section 4.7.    Change of Lending Office.
84
Section 4.8.    Assumptions Concerning Funding of Eurocurrency Loans.
84
Section 4.9.    Benchmark Replacement Setting
84
ARTICLE V. - Conditions Precedent    
92
Section 5.1.    Initial Conditions Precedent.
92
Section 5.2.    Conditions Precedent to All Loans and Letters of Credit.
94
ARTICLE VI. - Representations and Warranties
95
Section 6.1.    Representations and Warranties.
95
Section 6.2.    Survival of Representations and Warranties, Etc.
102
ARTICLE VII. - Affirmative Covenants
103
Section 7.1.    Preservation of Existence and Similar Matters.
103
Section 7.2.    Compliance with Applicable Law and Material Contracts.
103
Section 7.3.    Maintenance of Property.
103
Section 7.4.    Conduct of Business.
104
Section 7.5.    Insurance.
104
Section 7.6.    Payment of Taxes and Claims.
104
Section 7.7.    Visits and Inspections.
104
Section 7.8.    Use of Proceeds; Letters of Credit.
105
Section 7.9.    Environmental Matters.
105
Section 7.10.    Books and Records.
106
Section 7.11.    Further Assurances.    
106
Section 7.12.    Replacement or Addition of Unencumbered Properties.
106
Section 7.13.    Removal of Unencumbered Property.    
107
Section 7.14.    Failure of Certain Unencumbered Assets Representations and Warranties.
107
Section 7.15.    Subsidiary Guaranty.
107
Section 7.16.    [Reserved].
108
Section 7.17.    REIT Status.
108
Section 7.18.    Exchange Listing.
108
Section 7.19.    Distributions of Income to the Borrower.
109
Section 7.20.    [Reserved].
109
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Section 7.21.    Unencumbered Property.
109
Section 7.22.    Beneficial Ownership
111
ARTICLE VIII. - Information
111
Section 8.1.    Financial Statements, Certificates and Information.
111
Section 8.2.    Other Information.
113
ARTICLE IX. - Negative Covenants
115
Section 9.1.    Financial Covenants.
115
Section 9.2.    Distributions.
116
Section 9.3.    Indebtedness.
117
Section 9.4.    Permitted Investments.
119
Section 9.5.    ERISA Exemptions.
120
Section 9.6.    Liens.    
121
Section 9.7.    Merger, Consolidation, Sales of Assets and Other Arrangements.
121
Section 9.8.    Fiscal Year.
122
Section 9.9.    Modifications to Material Contracts.    
122
Section 9.10.    Modifications of Organizational Documents.    
122
Section 9.11.    Transactions with Affiliates.
122
ARTICLE X. - Default
122
Section 10.1.    Events of Default.
122
Section 10.2.    Limitation of Cure Periods.
126
Section 10.3.    Remedies Upon Default.
127
Section 10.4.    Allocation of Proceeds.
127
Section 10.5.    Collateral Account.
128
Section 10.6.    Performance by Agent.
129
Section 10.7.    Rights Cumulative.
129
ARTICLE XI. - The Agent
130
Section 11.1.    Authorization and Action.
130
Section 11.2.    Agent’s Reliance, Etc.    
130
Section 11.3.    Notice of Defaults.
131
Section 11.4.    KeyBank as Lender.
131
Section 11.5.    Approvals of Lenders.    
132
Section 11.6.    Lender Credit Decision, Etc.
132
Section 11.7.    Indemnification of Agent.
133
Section 11.8.    Successor Agent.
134
Section 11.9.    Titled Agents.    
134
Section 11.10.    Erroneous Payments.
135
ARTICLE XII. - MISCELLANEOUS
137
Section 12.1.    Notices.
137
Section 12.2.    Expenses.
138
Section 12.3.    Setoff.    
139
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Section 12.4.    Litigation; Jurisdiction; Other Matters; Waivers.
139
Section 12.5.    Successors and Assigns.
140
Section 12.6.    Amendments.    
143
Section 12.7.    Nonliability of Agent and Lenders.
146
Section 12.8.    Confidentiality.
146
Section 12.9.    Indemnification.
147
Section 12.10.    Termination; Survival.
149
Section 12.11.    Severability of Provisions.
149
Section 12.12.    GOVERNING LAW.
149
Section 12.13.    Patriot Act.
149
Section 12.14.    Counterparts.
150
Section 12.15.    Acknowledgement and Consent to Bail-In of EEA Financial Institutions
151
Section 12.16.    Limitation of Liability.
151
Section 12.17.    Entire Agreement.
151
Section 12.18.    Construction.
152
Section 12.19.    Amendment and Restatement    
152
Section 12.20.    Judgment Currency.
152
Section 12.21.    ACKNOWLEDGEMENT REGARDING ANY SUPPORTED QFCS
153



- iv -




SCHEDULE 6.1.(b)        Ownership Structure
SCHEDULE 6.1.(f)        Title to Properties; Liens
SCHEDULE 6.1.(g)        Indebtedness and Guaranties
SCHEDULE 6.1.(h)        Material Contracts
SCHEDULE 6.1.(i)        Litigation
SCHEDULE 6.1.(j)        Taxes Subject to Audit
SCHEDULE CA            Commitments

EXHIBIT A    Form of Assignment and Assumption Agreement
EXHIBIT B    Form of Notice of Borrowing
EXHIBIT C    Form of Notice of Continuation
EXHIBIT D    Form of Notice of Conversion
EXHIBIT E    Form of Revolving Credit Note
EXHIBIT F    Form of Compliance Certificate
EXHIBIT G    Form of Subsidiary Guaranty
EXHIBIT H    Tax Certificates


- v -



THIRD AMENDED, RESTATED AND CONSOLIDATED CREDIT AGREEMENT

THIS THIRD AMENDED, RESTATED, AND CONSOLIDATED CREDIT AGREEMENT (this “Agreement”) dated as of October 6, 2021 by and among EPR PROPERTIES, a Maryland real estate investment trust (the “Borrower”), KEYBANK NATIONAL ASSOCIATION, as administrative agent (“KeyBank” and/or the “Agent”), JPMORGAN CHASE BANK, N.A., RBC CAPITAL MARKETS CORPORATION, CITIBANK, N.A., BANK OF AMERICA, N.A., and BARCLAYS BANK PLC, as co-syndication agents (the “Syndication Agents”), each of KEYBANC CAPITAL MARKETS, LLC, JPMORGAN CHASE BANK, N.A., RBC CAPITAL MARKETS CORPORATION, BOFA SECURITIES, INC., BARCLAYS BANK PLC, CITIGROUP GLOBAL MARKETS INC. and BANK OF THE WEST, as joint lead arrangers and joint book runners (each as “Arrangers”), CITIZENS BANK, NATIONAL ASSOCIATION and TRUIST BANK, as Documentation Agents, and each of the financial institutions initially a signatory hereto together with their assignees pursuant to Section 12.5(d).
WHEREAS, certain lenders have made available to the Borrower a revolving credit facility and a term loan facility pursuant to the terms of that certain Second Amended, Restated and Consolidated Credit Agreement dated as of September 27, 2017, as amended by that certain Amendment No. 1 to Second Amended, Restated and Consolidated Credit Agreement dated as of June 29, 2020 and that certain Amendment No. 2 to Second Amended, Restated and Consolidated Credit Agreement dated as of November 3, 2020 (as amended, the “Existing Agreement”);
WHEREAS, the term loan facility under the Existing Agreement was repaid in full on September 13, 2021; and
WHEREAS, the Borrower has requested, and the Agent and the Lenders have agreed, to amend and restate, in full, the Existing Agreement in accordance with the terms and conditions contained herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereto agree that the Existing Agreement is hereby amended and restated to read as follows:
ARTICLEI. - DEFINITIONS
Section 1.1.Definitions.
In addition to terms defined elsewhere herein, the following terms shall have the following meanings for the purposes of this Agreement:
Additional Costs” has the meaning given that term in Section 4.1.



Adjusted EBITDA” means EBITDA for the most recent quarter ended, less the Replacement Reserve amount.
Adjusted LIBOR” means, with respect to each Interest Period for any Loan, the rate obtained by dividing (a) LIBOR for such Interest Period by (b) a percentage equal to 1 minus the Reserve Percentage.
Adjusted Sharing Event Commitment” means, as to each Revolving Credit Lender, after the occurrence of any Sharing Event, the Revolving Credit Commitment of such Lender (after giving effect to the provisions of Section 3.13) adjusted such that the amount of such Revolving Credit Commitment shall be in an aggregate principal amount at any one time outstanding not to exceed the indicated Dollar amount set forth opposite such Lender’s name on Schedule CA or in the Assignment and Assumption Agreement pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.
Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
Affected Lender” has the meaning given that term in Section 4.5.
Affiliate” means, as applied to any Person, any other Person directly or indirectly controlling, controlled by, or 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 (a) the possession, directly or indirectly, of the power to vote ten percent (10%) or more of the stock, shares, voting trust certificates, beneficial interest, partnership interests, member interests or other interests 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 securities or by contract or otherwise, or (b) the ownership of ten percent (10%) or more of the (i) partnership or other ownership interest of any other Person (other than as a limited partner of such other Person) or (ii) a managing member’s interest in a limited liability company.
Agent” means KeyBank National Association, as administrative agent for the Lenders under the terms of this Agreement, and any of its successors.
Aggregate Credit Exposure” means the aggregate Revolving Credit Exposure of all of the Lenders.
Agreement Date” means the date as of which this Agreement is dated.
Alternate Rate” means, for any day, for any Alternative Currency, the sum of (a) a rate per annum quoted or established as the “prime rate” appearing on a nationally recognized screen (or if no such screen is available a similar rate quoted by a nationally recognized bank) as determined by the Agent in its reasonable discretion, in consultation with the Borrower and
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based on market conditions, reflecting the cost to the Lenders of obtaining funds in such Alternative Currency, which Alternate Rate shall be subject to the approval of the Required Lenders, plus (b) the Applicable Margin for Eurocurrency Revolving Loans. When used in reference to any Revolving Credit Loan, “Alternate Rate” refers to whether such Revolving Credit Loan is bearing interest at a rate determined by reference to the Alternate Rate.
Alternate Rate Loan” means a Loan bearing interest at a rate based on an Alternate Rate.
Alternative Currency” means, at any time, any of Euro, Sterling, Canadian Dollar, Yen, Australian Dollar, Swiss Francs, and any other foreign currency approved (in their sole discretion) by each Revolving Credit Lender issuing an Alternative Currency Revolving Credit Commitment, so long as, in each such case, at such time (i) such Currency is dealt with in the London interbank deposit market or, in the case of Canadian Dollars, the relevant local market for obtaining quotations, (ii) such Currency is readily available to all Lenders and freely transferable and convertible into Dollars in the London foreign exchange market, (iii) the Eurocurrency Rate can be calculated therefor as provided in the definition thereof for such Currency for an Interest Period of one month or such other Interest Period selected by the Borrower pursuant to and in accordance with the terms of this Agreement (as reasonably determined by the Agent), and (iv) no central bank or other governmental authorization in the country of issue of such Currency is required to permit use of such Currency by any Lender for making any Loan hereunder and/or to permit the Borrower to borrow and repay the principal thereof and to pay the interest thereon, unless such authorization has been obtained and is in full force and effect.
Alternative Currency Equivalent” means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as reasonably determined by the Agent at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of such Alternative Currency with Dollars.
Alternative Currency Loan” means a Revolving Credit Loan that is made in an Alternative Currency as requested in the applicable Notice of Borrowing.
Alternative Currency Revolving Commitment Percentage” means, as to each Revolving Credit Lender, the ratio, expressed as a percentage, of (a) the amount of such Revolving Credit Lender’s Alternative Currency Revolving Credit Commitment to (b) the aggregate amount of the Alternative Currency Revolving Credit Commitments of all Revolving Credit Lenders; provided, however, that if at the time of determination the Revolving Credit Lender’s Alternative Currency Revolving Credit Commitments have terminated or been reduced to zero (0), the “Alternative Currency Revolving Commitment Percentage” of each Revolving Credit Lender shall be the Alternative Currency Revolving Commitment Percentage of such Revolving Credit Lender in effect immediately prior to such termination or reduction.
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Alternative Currency Revolving Credit Commitment” means, as to each Revolving Credit Lender, its obligation to (a) make Revolving Credit Loans to the Borrower in Dollars or any Alternative Currency pursuant to Section 2.1(b), and (b) purchase participations in LC Exposures denominated in Dollars or any Alternative Currency, in an amount up to, but not exceeding, the amount set forth for such Lender on Schedule CA attached hereto as such Lender’s “Alternative Currency Revolving Credit Commitment Amount” or as set forth in the applicable Assignment and Assumption Agreement, as the same may be reduced from time to time pursuant to Section 2.10, or increased from time to time pursuant to Section 2.14, or increased or reduced as appropriate to reflect any assignments to or by such Lender effected in accordance with Section 12.5.
Alternative Currency Sublimit” means an amount equal to the lesser of (i) $300,000,000 or (ii) the aggregate amount of all of the Revolving Credit Lenders’ Alternative Currency Revolving Credit Commitments.
Anti-Corruption Laws” means all Applicable Laws of any jurisdiction applicable to Borrower or its Subsidiaries from time to time concerning or relating to bribery or corruption.
Anti-Money Laundering Laws” means all Applicable Laws related to the financing of terrorism or money laundering, including without limitation, any applicable provision of the Patriot Act and The Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act,” 31 U.S.C. §§ 5311-5330 and 12U.S.C. §§ 1818(s), 1820(b) and 1951-1959).
Applicable Law” means all applicable provisions of constitutions, statutes, laws, rules, regulations and orders of all governmental bodies and all orders and decrees of all courts, tribunals and arbitrators.
Applicable Margin” means for any day, with respect to any Base Rate Loan or Eurocurrency Loan, or with respect to the fee payable with respect to any Letter of Credit payable hereunder, or with respect to the facility fee payable pursuant to Section 3.6 hereof, as the case may be, the applicable rate per annum set forth below under the caption “Base Rate Margin,” “Eurocurrency Margin” or “Facility Fee,” as the case may be, based upon the ratings by each Rating Agency on such date for the Index Debt:
Category
S&P/Fitch Ratings:
Moody’s Ratings:Base Rate MarginEurocurrency MarginFacility Fee
1>=A->=A30.0 bps82.5 bps12.5 bps
2=BBB+=Baa10.0 bps87.5 bps15.0 bps
3=BBB=Baa210.0 bps100.0 bps20.0 bps
4=BBB-=Baa320.0 bps120.0 bps25.0 bps
5<=BB+<=Ba155.0 bps155.0 bps30.0 bps
For purposes of the foregoing, (i) if a Rating Agency shall not have in effect a rating for the Index Debt (other than by reason of the circumstances referred to in the last sentence of this definition), then such Rating Agency shall be deemed to have established a rating in Category 5;
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(ii) if the ratings established or deemed to have been established by the three Rating Agencies for the Index Debt fall within the same category, the Applicable Margin shall be that category, (iii) if the ratings established or deemed to have been established by the three Rating Agencies for the Index Debt do not fall within the same category, the Applicable Margin shall be determined based on (A) the highest of such ratings, if the next highest rating is only one level below that of the highest rating, or (B) the rating that is one level higher than the second highest rating, if the second highest rating is more than one level below that of the highest rating; and (iv) if the ratings established or deemed to have been established by a Rating Agency shall be changed (other than as a result of a change in the rating system of such Rating Agency), such change shall be effective as of the date on which it is first announced by such Rating Agency, irrespective of when notice of such change shall have been furnished by the Borrower to the Agent and the Lenders pursuant to Section 8.1(f) hereof or otherwise. Each change in the Applicable Margin shall apply during the period commencing on the effective date of such change and ending on the date immediately preceding the effective date of the next such change. If the rating system of a Rating Agency shall change, or if any Rating Agency shall cease to be in the business of rating corporate debt obligations, the Borrower and the Required Lenders shall negotiate in good faith to amend this definition to reflect such changed rating system or the unavailability of ratings from such Rating Agency and, pending the effectiveness of any such amendment, the Applicable Margin shall be determined by reference to the rating most recently in effect prior to such change or cessation.
Applicable Time” means, with respect to any borrowings and payments in any Alternative Currency, the local time in the place of settlement for such Alternative Currency as may be determined by the Agent to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.
Arrangers” has the meaning given that term in the preamble hereto.
Assignee” has the meaning given that term in Section 12.5(d).
Assignment and Assumption Agreement” means an Assignment and Assumption Agreement among a Lender, an Assignee and the Agent and Borrower, as applicable, substantially in the form of Exhibit A.
Australian Dollar” or “AUD” means the lawful currency of the Commonwealth of Australia.
Available Tenor” has the meaning given that term in Section 4.9.
Bail-In Action” shall mean the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
Bail-In Legislation” shall mean (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council
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of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
Base Rate” means, for any day, a rate per annum 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 1/2 of one percent (1%), (c) the then applicable Adjusted LIBOR for one month interest periods plus one percent (1%), or (d) one percent (1.0%) per annum. Any change in the Base Rate due to a change in the Prime Rate, the Federal Funds Rate or the Adjusted LIBOR shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Rate or the Adjusted LIBOR, respectively.
Base Rate Loan” means a Loan bearing interest at a rate based on the Base Rate.
Base Rent” means, with respect to any Lease, the minimum periodic contractual rent payable thereunder, excluding reimbursement or recovery of common area maintenance or other property operating expenses and excluding percentage rent.
BBSY Rate” means, for any Interest Period with respect to Revolving Loans denominated in Australian Dollars, the Bank Bill Swap Reference Bid Rate, or a comparable or successor rate which rate is approved by the Agent, for deposits in Australian Dollars and having a maturity approximately equal to the requested Interest Period published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Agent from time to time) at approximately 10:30 a.m. (Melbourne, Australia time) on the day that is two (2) Business Days prior to the first day of such Interest Period. Notwithstanding the foregoing, if at any time the BBSY Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
Benchmark” has the meaning given that term in Section 4.9.
Benchmark Replacement” has the meaning given that term in Section 4.9.
Benchmark Replacement Adjustment” has the meaning given that term in Section 4.9.
Benchmark Replacement Conforming Changes” has the meaning given that term in Section 4.9.
Benchmark Transition Event” has the meaning given that term in Section 4.9.
Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation, which certification shall be
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substantially similar in form and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association.
Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
Benefit Arrangement” means at any time an employee benefit plan within the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan and which is maintained or otherwise contributed to by any member of the ERISA Group.
BHC Act Affiliate” has the meaning given that term in Section 12.21.
Bonds” means, (a) the $275,000,000 original face amount 5.25% Senior Notes due 2023, (b) the $148,000,000 original face amount 4.35% notes due 2024, (c) the $300,000,000 original face amount 4.50% Senior Notes due 2025, (d) the $192,000,000 original face amount 4.56% notes due 2026, (e) the $450,000,000 original face amount 4.75% Senior Notes due 2026, (f) the $450,000,000 original face amount 4.50% Senior Notes due 2027, (g) the $400,000,000 original face amount 4.95% Senior Notes due 2028, and (h) the $500,000,000 original face amount 3.75% Senior Notes due 2029; together with any refinancings of such notes that may be incurred in accordance with the terms of this Agreement.
Borrower” has the meaning as defined in the preamble hereto.
Building(s)” means with respect to each parcel of Real Estate, all of the buildings, structures and improvements now or hereafter located thereon.
Business Day” means any day other than Saturday, Sunday or any other day on which commercial banks in New York, New York are authorized or required by law to close; provided that, when used in connection with SOFR, the component of the Base Rate based upon SOFR or any other calculation or determination involving SOFR, the term “Business Day” means any such day that is also a U.S. Government Securities Business Day; provided further that
(a)    if such day relates to any interest rate settings as to an Alternative Currency Loan denominated in Euro, any fundings, disbursements, settlements and payments in Euro in respect of any such Alternative Currency Loan, or any other dealings in Euro to be carried out pursuant to this Agreement in respect of any such Alternative Currency Loan, means a Business Day that is also a TARGET Day;
(b)    if such day relates to any interest rate settings as to an Alternative Currency Loan denominated in (i) Sterling, means a day other than a day banks are closed for general business in London because such day is a Saturday, Sunday or a legal holiday under the laws of the United Kingdom; (ii) Swiss Francs, means a day other than when banks are closed for settlement and payments of foreign exchange transactions in Zurich because such day is a Saturday, Sunday or a legal holiday under the laws of Switzerland; and (iii) Japanese Yen, means a day other than when banks are closed for general business in Japan; and
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(c)    if such day relates to any fundings, disbursements, settlements and payments in a currency other than Euro in respect of an Alternative Currency Loan denominated in a currency other than Euro, or any other dealings in any currency other than Euro to be carried out pursuant to this Agreement in respect of any such Alternative Currency Loan (other than any interest rate settings), means any such day on which banks are open for foreign exchange business in the principal financial center of the country of such currency.
Canadian CDOR Rate” means, for any Interest Period with respect Loans denominated in Canadian Dollars, the rate obtained by dividing (a) the rate determined by the Agent by reference to the average rate quoted on the Reuters Monitor Screen (Page CDOR, or such other Page as may replace such Page on such Screen for the purpose of displaying Canadian interbank bid rates for Canadian Dollar bankers’ acceptances) applicable to Canadian Dollars bankers’ acceptances with a term comparable to such Interest Period as of 10:00 a.m. (Toronto, Canada time) on the first day of such Interest Period (or, if such first day is not a Business Day, then at 10:00 a.m. Toronto, Canada time on the immediately preceding Business Day), adjusted for reserves and taxes if required by future regulations by (b) a percentage equal to 1 minus the Reserve Percentage. If for any reason the Reuters Monitor Screen rates are unavailable, the Canadian CDOR Rate, in respect of any Interest Period applicable to a Loan, shall be determined from such financial reporting service as the Agent shall reasonably determine as of 10:00 a.m. (Toronto, Canada time) on the first day of such Interest Period (or, if such first day is not a Business Day, then at 10:00 a.m. Toronto, Canada time on the immediately preceding Business Day) and reported to the Borrower from time to time; provided further if none of the foregoing rates are available, subject to the provisions of Section 4.9 below, the applicable Canadian CDOR Rate shall be the rate equal to the PRIMCAN Index rate that appears on the Bloomberg screen at 10:15 a.m. Toronto time on such day (or, in the event that the PRIMCAN Index is not published by Bloomberg, any other information services that publishes such index from time to time, as selected by the Agent in its reasonable discretion). Notwithstanding the foregoing, if at any time the Canadian CDOR Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
Canadian Dollar” or “CAD” means the lawful currency of Canada.
Capitalized Lease Obligation” means, subject to Section 1.2(b), an obligation under a lease that is required to be capitalized for financial reporting purposes in accordance with GAAP. The amount of a Capitalized Lease Obligation is the capitalized amount of such obligation as would be required to be reflected on a balance sheet of the applicable Person prepared in accordance with GAAP as of the applicable date.
Capitalized Value” has the meaning provided in the definition of Total Real Estate Value.
Cash Equivalents” means: (a) securities issued, guaranteed or insured by the United States of America or any of its agencies with maturities of not more than one year from the date acquired; (b) certificates of deposit with maturities of not more than one year from the date acquired issued by a United States federal or state chartered commercial bank of recognized
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standing, or a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development, or a political subdivision of any such country, acting through a branch or agency, which bank has capital and unimpaired surplus in excess of $500,000,000.00 and which bank or its holding company has a short-term commercial paper rating of at least “A-2” or the equivalent by S&P or at least P-2 or the equivalent by Moody’s; (c) reverse repurchase agreements with terms of not more than seven days from the date acquired, for securities of the type described in clause (a) above and entered into only with commercial banks having the qualifications described in clause (b) above; (d) commercial paper issued by any Person incorporated under the laws of the United States of America or any State thereof and rated at least “A-2” or the equivalent thereof by S&P or at least “P-2” or the equivalent thereof by Moody’s, in each case with maturities of not more than one year from the date acquired; and (e) investments in money market funds registered under the Investment Company Act of 1940, as amended, which have net assets of at least $500,000,000.00 and at least eighty-five percent (85%) of whose assets consist of securities and other obligations of the type described in clauses (a) through (d) above.
Change in Control” means the occurrence of any of the following:
    (a)    any Person (including, without limitation, a Person’s Affiliates and associates) or group (as that term is understood under Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the rules and regulations thereunder) shall have acquired after the Effective Date beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of a percentage (based on voting power, in the event different classes of stock shall have different voting powers) of the voting stock of any such other Person equal to at least fifty percent (50%); or
    (b)    as of any date a majority of the trustees, directors, managers or other individuals or entities performing similar functions of any Person consists of individuals or entities who were not either (i) trustees, directors, managers or such similar controlling individuals or entities, as the case may be, of such Person as of the corresponding date of the previous year (provided, however, that the initial trustees, directors, managers or similar controlling individuals or entities for reference purposes of this clause (b)(i) shall be the trustees, directors, managers or similar controlling individuals or entities as of the Effective Date); (ii) selected or nominated to become trustees, directors, managers or similar controlling individuals or entities by the other trustees, directors, managers or similar controlling individuals or entities of said Person of which a majority consisted of individuals or entities described in clause (b)(i) above; or (iii) selected or nominated to become trustees, directors, managers or similar controlling individuals or entities by such trustees, directors, managers or similar controlling individuals or entities of said Person of which a majority consisted of individuals or entities, as the case may be, described in clause (b)(i), above or individuals or entities, as the case may be, described in clause (b)(ii) above.
Collateral Account” means any collateral account established pursuant to Section 2.6, Section 2.11 or Section 10.1 and which is maintained with or under the custody or control of the
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Agent, as the Agent may elect; which collateral account shall be governed by and subject to the provisions of Section 10.5 and any other applicable provisions of this Agreement.
Commission” means the Securities and Exchange Commission.
Commitment” means, as to each Lender, the Revolving Credit Commitment of such Lender.
Commitment Percentage” means, as to each Lender, the ratio, expressed as a percentage, of (a) the amount of such Lender’s Revolving Credit Commitment to (b) the Revolving Credit Commitments of all Lenders; provided, however, that if at the time of determination any applicable Commitments have been terminated or been reduced to zero, the “Commitment Percentage” of each Lender shall be the ratio, expressed as a percentage of (A) the sum of the unpaid principal amount of all outstanding Revolving Credit Exposure to (B) the sum of the aggregate unpaid principal amount of all outstanding Revolving Credit Exposure of all Lenders as of such date.
Compliance Certificate” has the meaning given that term in Section 8.1(c) herein.
Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
Consolidated” means with reference to any term defined herein, that term as applied to the accounts of a Person and its direct and indirect Subsidiaries, determined on a consolidated basis in accordance with GAAP.
Consolidated EBITDA” means with respect to any period, an amount equal to the EBITDA of the Borrower for such period determined on a Consolidated basis.
Consolidated Interest Incurred” means for any period, interest incurred on all Indebtedness of the Borrower (regardless of whether such interest was expensed or capitalized in accordance with GAAP), determined on a Consolidated basis but excluding amortization of deferred loan costs.
Consolidated Tangible Net Worth” means the Borrower's Tangible Net Worth determined on a Consolidated basis.
Consolidated Unsecured Interest Expense” means for any period, interest incurred on all Unsecured Indebtedness of the Borrower (regardless of whether such interest was expensed or capitalized in accordance with GAAP), determined on a Consolidated basis but excluding amortization of deferred loan costs.
Contingent Obligation(s)” means, as to any Person, any obligation of such Person guaranteeing or intending to guaranty any Indebtedness, leases, dividends or other obligations (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether
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directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent, (a) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (b) to advance or supply funds (i) for the purchase or payment of any such primary obligation or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the payment of, or the ability of the primary obligor to make payment of, such primary obligation or (d) otherwise to assure or hold harmless the owner of such primary obligation against loss in respect thereof; provided that the term Contingent Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business or contracting for purchase of real property in the ordinary course of business, or obligations, indemnifications or guarantees of liabilities other than with respect to the repayment of any Indebtedness, such as environmental indemnities or “bad acts” indemnities, unless such obligations, indemnifications or guarantees are being enforced by any applicable party entitled to rely thereon. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.
Continue”, “Continuation” and “Continued” each refers to the continuation of a Eurocurrency Loan from one Interest Period to another Interest Period pursuant to Section 2.7.
Control” and “Controlled by” shall have, unless expressly noted, the meanings assigned to such terms in Rule 405 under the Securities Act of 1933, as amended.
Convert”, “Conversion” and “Converted” each refers to the conversion of a Loan of one Type into a Loan of another Type pursuant to Section 2.8.
Corresponding Tenor” has the meaning given that term in Section 4.9.
Cost” means the lower of cost or market, as determined in accordance with GAAP.
Covered Party” has the meaning given that term in Section 12.21.
Covered Entity” has the meaning given that term in Section 12.21.
Credit Event” means any of the following: (a) the making (or deemed making) of any Loan, (b) the Conversion of a Loan or (c) the issuance of a Letter of Credit.
Currency” means Dollars or any Alternative Currency.
Currency of Payment” has the meaning given to such term in Section 3.1.
Daily Simple ESTR” has the meaning given that term in Section 4.9.
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Daily Simple SARON” means, for any day, SARON minus a spread adjustment of .0571%, with the conventions for this rate (which shall include a five (5) Business Day lookback) being established by the Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SARON” for business loans; provided that, if the Agent decides that any such convention is not administratively feasible for the Agent, then the Agent may establish another convention in its reasonable discretion.
Daily Simple SOFR” has the meaning given that term in Section 4.9.
Daily Simple SONIA” means, for any day, SONIA plus a spread adjustment of 0.0326%, with the conventions for this rate (which shall include a five (5) Business Day lookback) being established by the Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SONIA” for business loans; provided that, if the Agent decides that any such convention is not administratively feasible for the Agent, then the Agent may establish another convention in its reasonable discretion.
Daily Simple TONA” has the meaning given that term in Section 4.9.
Debt Service” means Consolidated Interest Incurred plus regularly scheduled amortization payments for the most recent quarter (excluding balloon maturities), excluding the non-cash portion of convertible debt interest expense.
Debtor Relief Laws" means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
Default” means any of the events specified in Section 10.1, whether or not there has been satisfied any requirement for the giving of notice, the lapse of time, or both.
Defaulting Lender” means, subject to Section 3.11(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Agent and the Borrower in writing that such failure is the result of such Lender’s good faith determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Agent or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in any Letter of Credit) within two (2) Business Days of the date when due, (b) has notified the Borrower or the Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s good faith determination that a
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condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by the Agent or the Borrower, to confirm in writing to the Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States of America or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 3.11(b)) upon delivery of written notice of such determination to the Borrower and each Lender.
Default Right” has the meaning given that term in Section 12.21.
Derivatives Contract(s)” means any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement. Not in limitation of the foregoing, the term “Derivatives Contract(s)” includes any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement, including any such obligations or liabilities under any such master agreement.
Designated Jurisdiction” means, at any time, a country, territory or region which is, or whose government is, the subject or target of any Sanctions.
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Distribution” means with respect to any Person, the declaration or payment of any cash dividend or distribution on or in respect of any shares of any class of capital stock or other beneficial interest of such Person; the purchase, redemption, exchange or other retirement by such Person of any shares of any class of capital stock or other beneficial interest of such Person, directly or indirectly through a Subsidiary of such Person or otherwise; the return of capital by such Person to its shareholders, partners, members or other owners as such; or any other distribution on or in respect of any shares of any class of capital stock or other beneficial interest of such Person; provided, however, that the dividend or distribution of common stock of a Person shall not constitute a Distribution with respect to such Person.
Division” and “Divide” shall each refer to a division of a limited liability company into two or more newly formed or existing limited liability companies pursuant to a plan of division or otherwise, including, pursuant to the Delaware Limited Liability Company Act.
Documentation Agents” has the meaning set forth in the Preamble hereto.
Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in any Alternative Currency, the equivalent amount thereof in Dollars as determined by the Agent at such time on the basis of the Spot Rate (determined on the relevant Revaluation Date) for the purchase of Dollars with such Alternative Currency.
Dollar Revolving Commitment Percentage” means, as to each Revolving Credit Lender, the ratio, expressed as a percentage, of (a) the amount of such Revolving Credit Lender’s Dollar Revolving Credit Commitment to (b) the aggregate amount of the Dollar Revolving Credit Commitments of all Revolving Credit Lenders; provided, however, that if at the time of determination the Revolving Credit Lender’s Dollar Revolving Credit Commitments have terminated or been reduced to zero (0), the “Dollar Revolving Commitment Percentage” of each Revolving Credit Lender shall be the Dollar Revolving Commitment Percentage of such Revolving Credit Lender in effect immediately prior to such termination or reduction.
Dollar Revolving Credit Commitment” means, as to each Revolving Credit Lender, its obligation to (a) make Revolving Credit Loans to the Borrower in Dollars pursuant to Section 2.1(b), and (b) purchase participations in LC Exposures denominated in Dollars, in an amount up to, but not exceeding, the amount set forth for such Lender on Schedule CA attached hereto as such Lender’s “Dollar Revolving Credit Commitment Amount” or as set forth in the applicable Assignment and Assumption Agreement, as the same may be reduced from time to time pursuant to Section 2.10, or increased from time to time pursuant to Section 2.14, or increased or reduced as appropriate to reflect any assignments to or by such Lender effected in accordance with Section 12.5.
Dollars” or “$” means the lawful currency of the United States of America.
Early Opt-In Effective Date” has the meaning given that term in Section 4.9.
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Early Opt-In Election” has the meaning given that term in Section 4.9.
EBITDA” means with respect to any Person (or any asset of any Person) for any period, all as determined in accordance with GAAP, an amount equal to the sum of (a) the Net Income of such Person (or attributable to such asset) for such period plus (b) depreciation and amortization, interest expense and income taxes for such period minus (c) equity in earnings from unconsolidated Subsidiaries for such period plus (d) ordinary cash distributions (exclusive of any distributions received from capital events) actually received from such unconsolidated Subsidiaries for such period, minus (e) straight line rents for such period, minus (f) any gains (plus the losses) from unusual or extraordinary items or asset sales or writeups or forgiveness of or early extinguishment of debt or preferred shares for such period, plus (g) non-cash impairment charges, plus (h) transaction costs incurred in connection with transactions permitted hereunder, plus (i) non-cash provisions for loan losses, plus (j) retirement and severance expense, plus (k) straight line rent write-offs, plus (l) termination fees associated with tenants’ exercises of buy-out options, plus or minus (m) other such items of a similar nature acceptable to the Agent, in its reasonable discretion. All of the foregoing to be calculated without duplication and with respect to (b) - (m), only to the extent the same has been included in the calculation of such net income.
Education Real Estate” means education real estate as so classified by the Borrower including public charter schools, early childhood centers, private schools (K-12), and similar education properties, in each case as so classified by the Borrower (including but not limited to EPR Senior Property Loans secured by EPR Senior First Mortgages on such properties).
EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
Effective Date” means the later of: (a) the Agreement Date; and (b) the date on which all of the conditions precedent set forth in Section 5.1 shall have been fulfilled or waived in writing by the Required Lenders.
Electronic Copy” has the meaning given that term in Section 12.14.
Electronic Signature” has the meaning given that term in Section 12.14.
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Eligible Assignee” means any of (a) a commercial bank or other financial institution organized under the laws of the United States, or any State thereof or the District of Columbia, and having total assets in excess of $1,000,000,000.00; (b) a savings and loan association or savings bank organized under the laws of the United States, or any State thereof or the District of Columbia, and having a net worth of at least $100,000,000.00, calculated in accordance with generally accepted accounting principles; (c) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development (the “OECD”), or a political subdivision of any such country, and having total assets in excess of $1,000,000,000.00, provided that such bank is acting through a branch or agency located in the country in which it is organized or another country which is also a member of the OECD; (d) the central bank of any country which is a member of the OECD; (e) any other assignee that, in the reasonable judgment of the Agent, is a reputable institutional investor with substantial experience in lending and originating loans similar to the Loan, or in purchasing, investing in or otherwise holdings such loans, having a financial net worth of at least $500,000,000.00; (f) any Lender or Lender Affiliate or a Related Fund of a Lender. For the purposes hereof, “Lender Affiliate” shall mean, (i) with respect to any Person who would otherwise be an Eligible Assignee under clauses (a) - (e), above (a “Qualified Assignee”), an Affiliate of such Qualified Assignee which is an entity (whether a corporation, partnership, trust or otherwise) that is engaged in making, purchasing, holding or otherwise investing in bank loans and similar extensions of credit in the ordinary course of its business, with sufficient assets to meet its funding obligations hereunder, and is administered (including as placement agent therefor) or managed by a Qualified Assignee or an Affiliate of such Qualified Assignee and (ii) with respect to any Lender that is a fund which invests in bank loans and similar extensions of credit, any other fund that invests in bank loans and similar extensions of credit, with sufficient assets to meet its funding obligations hereunder, and is managed by the same investment advisor as such Lender or by an Affiliate of such investment advisor (i.e., a Related Fund of such Lender). Further, for the purposes hereof, “Related Fund” shall mean, with respect to a Lender, a fund that invests in loans, any other such fund managed by the same investment advisor as such Lender or by an Affiliate of such Lender or such advisor with sufficient assets to meet its funding obligations hereunder. Neither the Borrower nor any affiliate of the Borrower shall be an Eligible Assignee.
Eligible Real Estate” means Real Estate:
    (a)    (i) which is owned in fee by the Borrower or an Eligible Subsidiary; (ii) which is encumbered by a ground lease to the Borrower or an Eligible Subsidiary, acceptable to the Agent in its reasonable discretion; or (iii) in which the Borrower or an Eligible Subsidiary holds an EPR Senior First Mortgage, acceptable to the Agent in its reasonable discretion;
    (b)    which is located within the United States or is an International Investment;
    (c)    which consists of one or more of the following income-producing properties:
        (i)    Entertainment Real Estate;
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        (ii)    Education Real Estate;
        (iii)    Recreation Real Estate;
(iv)    Gaming Real Estate; or
        (iv)    Other Real Estate (including, without limitation, property under development subject to a Lease or an EPR Senior First Mortgage);
    (d)    which is subject to a Lease to a third party (or parties) or to an EPR Senior First Mortgage, in each case which is not in material default, and under which the Tenant, other approved tenant or EPR Mortgagor, as the case may be, is in actual occupancy of the property (or the property is under construction and the Tenant or EPR Mortgagor, as the case may be, has entered into a Lease or EPR Senior First Mortgage, as applicable, with respect to such property); it being understood that copies of all Leases or EPR Senior First Mortgages for any Unencumbered Property shall be provided to Agent or any Lender upon request therefor;
    (e)    as to which all of the representations set forth in Section 7.21 of this Agreement concerning Unencumbered Property are true and correct; and
    (f)    if such Unencumbered Property does not meet any of the foregoing requirements, such Unencumbered Property has been approved by the Agent in its reasonable discretion.
For purposes of clause (d) immediately above, it is understood and agreed that, in the case of real property under development, the Tenant or EPR Mortgagor need not physically occupy the property during the development phase so long as the Tenant or EPR Mortgagor is not in material default under the applicable Lease or EPR Senior First Mortgage Loan with respect to such property under development.
Eligible Subsidiary” means (a) with respect to any Real Estate located in the United States of America, a direct or indirect Wholly Owned Domestic Subsidiary of the Borrower or (b) with respect to an International Investment, (i) a direct or indirect Wholly Owned Domestic Subsidiary of the Borrower or (ii) a Subsidiary that is existing under the laws of the jurisdiction where such International Investment is located and that is a direct or indirect Wholly Owned Subsidiary of the Borrower. Notwithstanding the foregoing, a Subsidiary that is not a Wholly-Owned Subsidiary of the Borrower shall be deemed to be an Eligible Subsidiary if the Borrower or one or more Wholly-Owned Subsidiaries of the Borrower (a) has the power (whether as the general partner of such Subsidiary, by virtue of the organizational documents of such Subsidiary, by contract, or otherwise) to control the affairs of such Subsidiary, including the power of such Subsidiary to become a Subsidiary Guarantor and whether such Subsidiary may voluntarily encumber its properties, and (b) owns at least eighty five percent (85%) of the Equity Interests in such Subsidiary; provided the income and value from such Property shall be limited to the percentage of Equity Interests owned by the Borrower, directly or indirectly, in such Eligible Subsidiary when calculating the financial covenants hereunder.
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Entertainment Real Estate” means entertainment real estate as so classified by the Borrower including Theaters, eat & play properties and live venues, in each case as so classified by the Borrower (including, but not limited to, EPR Senior Property Loans secured by EPR Senior First Mortgages on such properties).
Environmental Laws” means any Applicable Law relating to environmental protection or the manufacture, storage, treatment, disposal or clean-up of Hazardous Materials including, without limitation, the following: Clean Air Act, 42 U.S.C. § 7401 et seq.; Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.; Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.; Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq.; National Environmental Policy Act, 42 U.S.C. § 4321 et seq.; regulations of the United States Environmental Protection Agency and any applicable rule of common law and any judicial interpretation thereof relating primarily to environmental protection or Hazardous Materials.
EPR Mortgagor” means a party which borrows pursuant to the terms of an EPR Senior Property Loan, which loan is secured by an EPR Senior First Mortgage and is otherwise evidenced by the EPR Senior Property Loan Documents.
“EPR Senior First Mortgage(s)” means a first priority senior mortgage granted to the Borrower or an Eligible Subsidiary by an EPR Mortgagor securing an EPR Senior Property Loan and encumbering any real estate and improvements thereon, and upon which no other lien exists except for liens for unpaid taxes, assessments and the like, not yet due and payable and liens on equipment and the like owned or leased by the EPR Mortgagor which are permitted pursuant to the terms of the related EPR Senior Property Loan Documents, consisting of purchase money liens or liens on capital leases. References in this Agreement to a “mortgage” or a “mortgage interest” shall be deemed to include a deed of trust, deed to secure debt or similar real property security instrument.
EPR Senior Property Loan” means a first priority mortgage loan made to the owner of any real estate and improvements thereon.
EPR Senior Property Loan Documents” means, collectively, a promissory note from an EPR Mortgagor to the Borrower or an Eligible Subsidiary, the EPR Senior First Mortgage serving as collateral for such note, along with any related assignment of leases and rents from such EPR Mortgagor to the Borrower or such Eligible Subsidiary and any other documents or instruments delivered to the Borrower or such Eligible Subsidiary evidencing or securing a EPR Senior Property Loan. This term may also refer to such loan documents evidencing more than one EPR Senior Property Loan.
Equity Interest” means, with respect to any Person, any share of capital stock of (or other ownership or profit interests in) such Person, any warrant, option or other right for the purchase or other acquisition from such Person of any share of capital stock of (or other ownership or profit interests in) such Person, any security convertible into or exchangeable for any share of capital stock of (or other ownership or profit interests in) such Person or warrant,
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right or option for the purchase or other acquisition from such Person of such shares (or such other interests), and any other ownership or profit interest in such Person (including, without limitation, partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such share, warrant, option, right or other interest is authorized or otherwise existing on any date of determination.
Equity Issuance” means the issuance and sale after the Effective Date by any of the Borrower or its Subsidiaries of any equity securities of the Borrower or its Subsidiaries to any Person who is not the Borrower or one of its Subsidiaries, including without limitation pursuant to the exercise of options or warrants or pursuant to the conversion of any debt securities to equity.
ERISA” means the Employee Retirement Income Security Act of 1974, as in effect from time to time.
ERISA Group” means the Borrower, any of its Subsidiaries and all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control which, together with the Borrower or any of its Subsidiaries, are treated as a single employer under Section 414 of the Internal Revenue Code.
ERISA Reportable Event” means a reportable event with respect to a Guaranteed Pension Plan within the meaning of Section 4043 of ERISA and the regulations promulgated thereunder as to which the requirement of notice has not been waived.
Erroneous Payment” has the meaning given that term in Section 11.10.
Erroneous Payment Deficiency Assignment” has the meaning given that term in Section 11.10.
Erroneous Payment Impacted Class” has the meaning given that term in Section 11.10.
Erroneous Payment Return Deficiency” has the meaning given that term in Section 11.10.
Erroneous Payment Subrogation Rights” has the meaning given that term in Section 11.10.
ESTR” has the meaning given that term in Section 4.9.
ESTR Administrator” has the meaning given that term in Section 4.9.
ESTR Administrator’s Website” has the meaning given that term in Section 4.9.
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EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
EURIBOR Rate” means, for any Interest Period with respect to Revolving Loans denominated in Euro, the euro interbank offered rate administered by the European Money Markets Institute (or any other Person which takes over the administration of that rate) for deposits in Euro and having a maturity approximately equal to the requested Interest Period displayed on page EURIBOR01 of the Reuters screen (or any successor service, or if such Person no longer reports such rate as determined by the Agent, by another commercially available source providing such quotations approved by the Agent) at approximately 11:00 a.m. (Brussels time) on the day that is two (2) Eurocurrency Business Days prior to the first day of such Interest Period. Notwithstanding the foregoing, if at any time the EURIBOR Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
Euro”, “EUR” or “” means the single currency of the Participating Member States.
Eurocurrency Business Day” means (a) relative to the making, continuing, conversion into, prepaying or repaying of any Eurocurrency Loans (other than a Revolving Loan made in Canadian Dollars), any day which is a Business Day and which is also a day on which dealings in Dollars or the applicable Alternative Currency, as the case may be, are carried on in the London interbank market; (b) relative to the making, continuing, conversion into, prepaying or repaying of any Revolving Loan that is made in Canadian Dollars, any day which is a Business Day and which is also a day on which banks are not authorized or required to be closed in Toronto, Canada; (c) relative to the making, continuing, conversion into, prepaying or repaying of any Revolving Loan denominated in Euro, the term “Eurocurrency Business Day” shall exclude any day which is not a TARGET Day (as determined by the Agent); and (d) when used in connection with the borrowing, payment or prepayment of any Revolving Loan denominated in an Alternative Currency, the term “Business Day” shall exclude any day in which commercial banks or foreign exchange markets are not open for business in the city where disbursements or payments of any such Loans are to be made.
Eurocurrency Loan” means a Loan bearing interest at a rate based on a Eurocurrency Rate.
Eurocurrency Rate” means: (a) for any Loan denominated in Dollars, LIBOR, (b) for any Loan denominated in Canadian Dollars, the Canadian CDOR Rate, (c) for any Loan denominated in Euro, the EURIBOR Rate, (d) for any Loan denominated in Yen, the TIBOR Rate, (e) for any Loan denominated in Australian Dollars, the BBSY Rate, (f) for any Loan denominated in Sterling, Daily Simple SONIA, and (g) for any Loan denominated in Swiss Francs, Daily Simple SARON. Notwithstanding the foregoing, if at any time a Eurocurrency Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
Eurocurrency Revolving Loan” means a Revolving Credit Loan which is a Eurocurrency Loan. Unless the Alternate Rate is applicable pursuant to the terms of Section 2.7,
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Section 4.2, Section 4.6, or Section 4.9, all Alternative Currency Loans shall be Eurocurrency Revolving Loans at all times.
Event of Default” means any of the events specified in Section 10.1, provided that any requirement for notice or lapse of time or any other condition has been satisfied.
Excess Unrestricted Cash” means, as of any date of calculation, the difference between (x) the aggregate amount of unrestricted cash and Cash Equivalents held by Borrower and its Subsidiaries in excess of $25,000,000, less (y) the aggregate principal amount of all Short-Term Unsecured Indebtedness; provided, however, that in no event shall Excess Unrestricted Cash be less than zero.
Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or its Commitment pursuant to Applicable Law in effect on the date on which (i) such Lender acquires such interest in the Loan or its Commitment (other than pursuant to an assignment request by the Borrower under Section 4.5 as a result of costs sought to be reimbursed pursuant to Section 3.12 or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 3.12, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.12(f), and (d) any U.S. federal withholding Taxes imposed under FATCA.
Existing Agreement” has the meaning set forth in the Preamble hereto.
Facility” means, collectively, the credit facilities described herein with respect to the Loans up to the Facility Amount.
Facility Amount” means the Revolving Credit Facility Amount, plus any increase thereto pursuant to Section 2.14, and less any decrease to the Revolving Credit Facility Amount pursuant to Section 2.10.
FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code.
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FCA” has the meaning set forth in Section 4.9.
Federal Funds Rate” means, for any day, the rate per annum (rounded upward to the nearest 1/100th of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day, provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day, (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate quoted to the Agent by federal funds dealers selected by the Agent on such day on such transaction as determined by the Agent, and (c) notwithstanding the foregoing, if at any time the Federal Funds Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
Fees” means the fees and commissions provided for or referred to in Section 3.6 and any other fees payable by the Borrower hereunder or under any other Loan Document.
Fitch” means Fitch, Inc., and its successors.
Fixed Charges” means, for the most recent quarter ended, the aggregate of Debt Service plus any preferred dividends.
Floor” has the meaning given that term in Section 4.9.
Foreign Lender” means any Lender that is organized under the laws of a jurisdiction other than the United States of America, any State thereof or the District of Columbia.
GAAP” means principles that are (a) consistent with the principles promulgated or adopted by the Financial Accounting Standards Board and its predecessors (“FASB”), as in effect from time to time and (b) consistently applied with past financial statements of the Person adopting the same principles; provided that a certified public accountant would, insofar as the use of such accounting principles is pertinent, be in a position to deliver an unqualified opinion (other than a qualification regarding changes in generally accepted accounting principles) as to financial statements in which such principles have been properly applied.
Gaming Real Estate” means gaming real estate as so classified by the Borrower including casinos and related hotels and other amenities, in each case as so classified by the Borrower (including, but not limited to, EPR Senior Property Loans secured by EPR Senior First Mortgages on such properties).
Governmental Approvals” means all authorizations, consents, approvals, licenses and exemptions of, registrations and filings with, and reports to, all Governmental Authorities.
Governmental Authority” means any national, state or local government (whether domestic or foreign), any political subdivision thereof or any other governmental, quasi-governmental, judicial, public or statutory instrumentality, authority, body, agency, bureau,
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commission, board, department or other entity (including, without limitation, the Federal Deposit Insurance Corporation, the Comptroller of the Currency or the Federal Reserve Board, any central bank or any comparable authority) or any arbitrator with authority to bind a party at law.
Guaranteed Pension Plan” means any employee pension benefit plan within the meaning of Section 3(2) of ERISA maintained or contributed to by the Borrower or any ERISA Affiliate the benefits of which are guaranteed on termination in full or in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer Plan.
Guaranty”, “Guaranteed”, “Guarantying” or to “Guarantee” as applied to any obligation means and includes: (a) a guaranty (other than by endorsement of negotiable instruments for collection or deposit in the ordinary course of business), directly or indirectly, in any manner, of any part or all of such obligation, or (b) an agreement, direct or indirect, contingent or otherwise, and whether or not constituting a guaranty, the practical effect of which is to assure the payment or performance (or payment of damages in the event of nonperformance) of any part or all of such obligation whether by: (i) the purchase of securities or obligations, (ii) the purchase, sale or lease (as lessee or lessor) of property or the purchase or sale of services primarily for the purpose of enabling the obligor with respect to such obligation to make any payment or performance (or payment of damages in the event of nonperformance) of or on account of any part or all of such obligation, or to assure the owner of such obligation against loss, (iii) the supplying of funds to or in any other manner investing in the obligor with respect to such obligation, (iv) repayment of amounts drawn down by beneficiaries of letters of credit, or (v) the supplying of funds to or investing in a Person on account of all or any part of such Person’s obligation under a Guaranty of any obligation or indemnifying or holding harmless, in any way, such Person against any part or all of such obligation.
"Guaranty Trigger Event" has the meaning set forth in Section 7.15(b).
Hazardous Materials” means all or any of the following: (a) substances that are defined or listed in, or otherwise classified pursuant to, any applicable Environmental Laws as “hazardous substances”, “hazardous materials”, “hazardous wastes”, “toxic substances” or any other formulation intended to define, list or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity, “TCLP” toxicity or “EP toxicity”; (b) oil, petroleum or petroleum derived substances, natural gas, natural gas liquids or synthetic gas and drilling fluids, produced waters and other wastes associated with the exploration, development or production of crude oil, natural gas or geothermal resources; (c) any flammable substances or explosives or any radioactive materials; (d) asbestos in any form; (e) toxic mold; and (f) electrical equipment which contains any oil or dielectric fluid containing levels of polychlorinated biphenyls in excess of fifty (50) parts per million.
IBA” has the meaning set forth in Section 4.9.
Impacted Interest Period” has the meaning set forth in the definition of “LIBOR”.
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Income Component” has the meaning set forth in Section 1.3(b).
Increase Effective Date” has the meaning set forth in Section 2.14(d).
Increase Option” has the meaning set forth in Section 2.14(a).
Indebtedness” means, at any date, without duplication, all obligations, contingent and otherwise, direct or indirect, in respect of (a) all obligations of such Person for borrowed money; (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments; (c) all obligations of such Person to pay the deferred purchase price of property or services, except trade accounts payable arising in the ordinary course of business; (d) all Capitalized Lease Obligations; (e) all obligations of such Person to reimburse any bank or other Person in respect of amounts payable under a banker’s acceptance; (f) all Redeemable Preferred Stock of such Person (in the event such Person is a corporation); (g) all obligations of such Person to reimburse any bank or other Person in respect of amounts paid or to be paid under a letter of credit or similar instrument; (h) all Indebtedness of others secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person; (i) all obligations of such Person with respect to interest rate protection agreements, foreign currency exchange agreements or other hedging arrangements (valued as the termination value thereof computed in accordance with a method approved by the International Swap Dealers Association and agreed to by such Person in the applicable hedging agreement, if any); and (j) all Indebtedness of others Guaranteed by such Person.
Indemnified Costs” has the meaning given that term in Section 12.9(a).
Indemnified Party” has the meaning given that term in Section 12.9(a).
Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower or any Subsidiary Guarantor under any Loan Document and (b) to the extent not otherwise described in the immediately preceding clause (a), Other Taxes.
Indemnity Proceeding” has the meaning given that term in Section 12.9(a).
Index Debt” means senior, unsecured, long-term indebtedness for borrowed money of the Borrower that is not guaranteed by any other Person (other than Subsidiaries of the Borrower) or subject to any other credit enhancement.
Intellectual Property” has the meaning given that term in Section 6.1(t).
Interest Period” means with respect to any Eurocurrency Loan, each period commencing on the date such Loan is made or the last day of the next preceding Interest Period for such Loan and ending 1, 3 and 6 months thereafter (in each case, subject to availability for the interest rate applicable to the relevant currency, it being understood that Interest Periods of six (6) months are not available with respect to Canadian CDOR), as the Borrower may select in a Notice of Borrowing, Notice of Continuation or Notice of Conversion, as the case may be,
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except that each Interest Period that commences on the last Business Day of a calendar month, or on a day for which there is no corresponding day in the appropriate subsequent calendar month, shall end on the last Business Day of the appropriate subsequent calendar month. Notwithstanding the foregoing: (a) if any Interest Period would otherwise end after the Termination Date for such Loan, such Interest Period shall end on the Termination Date for such Loan; and (b) each Interest Period that would otherwise end on a day which is not a Business Day shall end on the immediately following Business Day (or, if such immediately following Business Day falls in the next calendar month, on the immediately preceding Business Day).
Internal Revenue Code” means the Internal Revenue Code of 1986, as amended.
International Investment” means Real Estate consisting of fee or leasehold interests (or mortgagee's interests under EPR Senior Property Loans) in income producing Real Estate that is located in (i) any of the following countries: Canada, United Kingdom of Great Britain and Northern Ireland, Australia, France, the Federal Republic of Germany, the Netherlands, Belgium, Ireland or the Republic of Poland, or (ii) sizeable cities within other countries with well-developed real estate debt and equity capital markets as reasonably determined by the Required Lenders.
Interpolated Rate” means, at any time, for any Interest Period, the rate per annum (rounded to the same number of decimal places as LIBOR) determined by the 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) LIBOR for the longest period for which LIBOR is available that is shorter than the Impacted Interest Period; and (b) LIBOR for the shortest period for which that LIBOR is available that exceeds the Impacted Interest Period, in each case, at such time.
Investment” means, with respect to any Person, all shares of capital stock, evidences of Indebtedness and other securities issued by any other Person and owned by such Person, all loans, advances, or extensions of credit to, or contributions to the capital of, any other Person, all purchases of the securities or business or integral part of the business of any other Person and commitments and options to make such purchases, all interests in real property, and all other investments; provided, however, that the term “Investment” shall not include (i) equipment, inventory and other tangible personal property acquired in the ordinary course of business, or (ii) current trade and customer accounts receivable for services rendered in the ordinary course of business and payable in accordance with customary trade terms. In determining the aggregate amount of Investments outstanding at any particular time: (a) there shall be included as an Investment all interest accrued with respect to Indebtedness constituting an Investment unless and until such interest is paid; (b) there shall be deducted in respect of each Investment any amount received as a return of capital; (c) there shall not be deducted in respect of any Investment any amounts received as earnings on such Investment, whether as dividends, interest or otherwise, except that accrued interest included as provided in the foregoing clause (a) may be deducted when paid; and (d) there shall not be deducted in respect of any Investment any decrease in the value thereof.
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ISDA Definitions” has the meaning given that term in Section 4.9.
KeyBank” means KeyBank National Association, together with its successors and assigns.
LC Commitment Amount” equals $100,000,000.00.
LC Disbursement” means a payment made by the Agent pursuant to a Letter of Credit.
LC Exposure” means, at any time, the sum of (a) the aggregate Outstanding Amount of all outstanding Letters of Credit at such time plus (b) the aggregate Outstanding Amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any Revolving Credit Lender at any time shall be its applicable Revolving Commitment Percentage of the total LC Exposure at such time.
Lease” means any leases, license and agreement relating to the use or occupation of space in any Building or of any Real Estate including without limitation any ground leases therefor (collectively, the “Leases”).
Lender” means each financial institution from time to time party hereto as a “Lender”, together with its respective successors and permitted assigns.
Lending Office” means, for each Lender and for each Type of Loan, the office of such Lender specified as such on its signature page hereto or in the applicable Assignment and Assumption Agreement, or such other office of such Lender of which such Lender may notify the Agent in writing from time to time.
Letter of Credit” means any standby letter of credit issued by the Agent at the request of the Borrower and for the account of the Borrower or one of its Subsidiaries in accordance with Section 2.2.
Letter of Credit Liabilities” means at any time and in respect of any Letter of Credit, the sum of (a) the maximum undrawn face amount of such Letter of Credit plus (b) the aggregate unpaid principal amount of all drawings made under such Letter of Credit which have not been repaid (including repayment by a Revolving Credit Loan). For purposes of this Agreement, a Revolving Credit Lender (other than the Agent) shall be deemed to hold a Letter of Credit Liability in an amount equal to its participation interest in the related Letter of Credit under Section 2.2, and the Agent shall be deemed to hold a Letter of Credit Liability in an amount equal to its retained interest in the related Letter of Credit after giving effect to the acquisition by the Revolving Credit Lenders other than the Agent of their participation interests under such Section.
LIBOR” means, for any LIBOR Loan denominated in Dollars, for any Interest Period, the London interbank offered rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate for U.S. Dollars) for a period equal in length to such Interest Period as displayed on pages LIBOR01 or LIBOR02 of the Reuters screen
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that displays such rate (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Agent in its reasonable discretion; in each case the “LIBOR Screen Rate”) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period; provided that (i) if the LIBOR Screen Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement; provided further that if the LIBOR Screen Rate shall not be available at such time for such Interest Period (an “Impacted Interest Period”) then LIBOR shall be the Interpolated Rate; provided that if any Interpolated Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement, and (ii) if no such rate administered by ICE Benchmark Administration (or by such other Person that has taken over the administration of such rate for U.S. Dollars) is available to the Agent, the applicable LIBOR for the relevant Interest Period shall instead be the rate determined by the Agent to be the rate at which KeyBank or one of its Affiliate banks offers to place deposits in U.S. dollars with first class banks in the London interbank market at approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period, in the approximate amount of the relevant LIBOR Loan and having a maturity equal to such Interest Period. In the event that Agent is unable to obtain any such quotation as provided above, it will be deemed that LIBOR pursuant to a LIBOR Loan cannot be determined and the provisions of Section 4.2 shall apply. .
Lien(s)” as applied to the property of any Person means: (a) any security interest, encumbrance, mortgage, deed to secure debt, deed of trust, assignment of leases and rents, pledge, lien, charge or lease constituting a Capitalized Lease Obligation, conditional sale or other title retention agreement, or other security title or encumbrance of any kind in respect of any property of such Person, or upon the income, rents or profits therefrom; (b) any arrangement, express or implied, under which any property of such Person is transferred, sequestered or otherwise identified for the purpose of subjecting the same to the payment of Indebtedness or performance of any other obligation in priority to the payment of the general, unsecured creditors of such Person; (c) the filing of any financing statement under the Uniform Commercial Code or its equivalent in any jurisdiction, other than any precautionary filing not otherwise constituting or giving rise to a Lien, including a financing statement filed (i) in respect of a lease not constituting a Capitalized Lease Obligation pursuant to Section 9-505 (or a successor provision) of the Uniform Commercial Code or its equivalent as in effect in an applicable jurisdiction or (ii) in connection with a sale or other disposition of accounts or other assets not prohibited by this Agreement in a transaction not otherwise constituting or giving rise to a Lien; and (d) any agreement by such Person to grant, give or otherwise convey any of the foregoing.
Loan” means a loan made by a Lender to the Borrower pursuant to Section 2.1(b), which shall include each Revolving Credit Loan; and “Loans” the aggregate of all such Loans outstanding from time to time.
Loan Document(s)” means this Agreement, each Note, the Subsidiary Guaranty, and each other document or instrument now or hereafter executed and delivered by the Borrower or another Loan Party in connection with, pursuant to or relating to this Agreement.
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Loan Parties” means, collectively, the Borrower and the Subsidiary Guarantors, if any.
Managed Property” or “Managed Properties” means Real Estate owned by Borrower or an Unencumbered Property Owner Subsidiary and operated by Borrower or a Subsidiary (or a third-party operator retained by Borrower or a Subsidiary) but not subject to a Lease or an EPR Senior First Mortgage.
"Material Acquisition" means the acquisition of assets (including the assets of any Person whose equity interests are acquired) after the Agreement Date, in a single transaction or a series of related transactions, with a total cost that is more than ten percent (10%) of the Total Asset Value based on the most recent Compliance Certificate submitted prior to such acquisition.
Material Adverse Effect” means a material adverse effect on (a) the business, properties, assets, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries considered as a whole; (b) the ability of the Loan Parties to perform their respective obligations under the Loan Documents; or (c) the validity or enforceability of any of the Loan Documents or the rights or remedies of Agent or the Lenders thereunder.
Material Contract” means any contract or other arrangement (other than Loan Documents), whether written or oral, to which the Borrower or any of its Subsidiaries is a party as to which the breach, nonperformance, cancellation or failure to renew by any party thereto could reasonably be expected to have a Material Adverse Effect.
Minority Interest” means as to any Person, an ownership or other equity investment in any other Person, which investment is not consolidated with the accounts of such Person in accordance with GAAP.
Moody’s” means Moody’s Investors Service, Inc., and its successors.
Multiemployer Plan” means at any time a multiemployer plan within the meaning of Section 4001(a)(3) of ERISA to which any member of the ERISA Group is then making or accruing an obligation to make contributions or has within the preceding five plan years made contributions, including for these purposes any Person which ceased to be a member of the ERISA Group during such five year period.
Net Equity Proceeds” means the aggregate consideration received by the Borrower and/or any of its Subsidiaries in respect of any Equity Issuance, net of (a) direct costs (including, without limitation, legal, accounting and investment banking fees and sales commissions) and (b) taxes paid or payable as a result thereof; it being understood, (i) that “Net Equity Proceeds” shall include, without limitation, any cash received upon the sale or other disposition of any non-cash consideration received by the Borrower and/or any of its Subsidiaries in any Equity Issuance, and (ii) that “Net Equity Proceeds” shall not include cash proceeds that are applied within thirty (30) days of the date of the related Equity Issuance to retire capital stock.
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Net Income (or Loss)” means with respect to any Person (or any asset of any Person) for any period, the net income (or loss) of such Person (or attributable to such asset), determined in accordance with GAAP. The net income (or loss) of a Person shall include, without duplication, the allocable share of the net income (or loss) of any other Person in which a Minority Interest is owned by such Person based on the ownership of such Person in such other Person.
Net Rentable Area” means with respect to any Real Estate, the number of square feet of floor area of any buildings, structures or improvements available for leasing to tenants determined in accordance with the Rent Roll for such Real Estate, the manner of such determination to be reasonably consistent for all Real Estate of the same type unless otherwise approved by the Agent.
Note(s)” means has the meaning given that term in Section 2.9(a).
Notice of Borrowing” means a notice in the form of Exhibit B to be delivered to the Agent pursuant to Section 2.1(b), evidencing the Borrower’s request for a borrowing of Loans.
Notice of Continuation” means a notice in the form of Exhibit C to be delivered to the Agent pursuant to Section 2.7 evidencing the Borrower’s request for the Continuation of a Eurocurrency Loan.
Notice of Conversion” means a notice in the form of Exhibit D to be delivered to the Agent pursuant to Section 2.8 evidencing the Borrower’s request for the Conversion of a Loan from one Type to another Type.
Obligation(s)” means all indebtedness, obligations and liabilities of the Borrower to any of the Lenders or the Agent, individually or collectively, under this Agreement or any of the other Loan Documents or in respect of any of the Loans, the Notes, the Letters of Credit or other instruments at any time evidencing any of the foregoing, whether existing on the date of this Agreement or arising or incurred hereafter, direct or indirect, joint or several, absolute or contingent, matured or unmatured, liquidated or unliquidated, secured or unsecured, arising by contract, operation of law or otherwise, including all Erroneous Payment Subrogation Rights.
OFAC” means U.S. Department of the Treasury’s Office of Foreign Assets Control and any successor Governmental Authority.
Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising solely from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
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Other Real Estate” means all Real Estate that is not Education Real Estate, Entertainment Real Estate, Recreation Real Estate or Gaming Real Estate.
Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 4.5 as a result of costs sought to be reimbursed pursuant to Section 3.12).
Outstanding Amount” means (i) with respect to Loans on any date, the Dollar Equivalent of the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of such Loans occurring on such date; and (ii) with respect to any Letter of Credit or LC Disbursement on any date, the Dollar Equivalent of the aggregate outstanding amount of such Letter of Credit or LC Disbursement on such date after giving effect to any issuance or amendment of any Letter of Credit occurring on such date, any drawing under any Letter of Credit occurring on such date and any other changes in the aggregate amount of the LC Exposure as of such date, including as a result of any reimbursements by or on behalf of the Borrower of LC Disbursements.
Participant” has the meaning given that term in Section 12.5(c).
Participant Register” has the meaning given that term in Section 12.5(c).
Participating Member State” means any member state of the European Communities that adopts or has adopted the Euro as its lawful currency in accordance with legislation of the European Community relating to Economic and Monetary Union.
Payment Recipient” has the meaning given that term in Section 11.10.
Patriot Act” means the USA Patriot Act (Title III or Pub. L. 107-56 (signed into law October 26, 2001)), as amended from time to time, and any successor statute.
PBGC” means the Pension Benefit Guaranty Corporation and any successor agency.
Permitted Liens” means, as to any Person: (a) Liens securing taxes, assessments and other charges or levies imposed by or payable to any Governmental Authority (including, for the avoidance of doubt, any Lien that secures payment-in-lieu-of-taxes (PILOT) obligations or the like, but excluding any Lien imposed pursuant to any of the provisions of ERISA or pursuant to any Environmental Laws if the imposition of such Lien could reasonably be expected to have a Material Adverse Effect) or the claims of materialmen, mechanics, carriers, warehousemen or landlords for labor, materials, supplies or rentals incurred in the ordinary course of business, which are not at the time required to be paid or discharged or are otherwise permitted under Section 7.6.; (b) Liens consisting of deposits or pledges made, in the ordinary course of business, in connection with, or to secure payment of, obligations under workers’ compensation,
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unemployment insurance or similar Applicable Laws or in connection with performance of bids and trade contracts and leases where such Person is the tenant; (c) encumbrances on the Real Estate permitted under the applicable Lease or EPR Senior Property Loan Documents, or consisting of easements, rights of way, zoning restrictions, restrictions on the use of real property and defects and irregularities in the title thereto which do not materially detract from the value of such property for its intended business use or impair the intended business use thereof in the business of such Person; (d) the rights of tenants under leases or subleases not interfering with the ordinary conduct of business of such Person; (e) Liens in favor of the Agent for the benefit of the Lenders; (f) intercompany Liens among the Borrower and its Subsidiaries securing intercompany obligations among such Persons that have been subordinated to the Obligations on terms satisfactory to the Agent; (g) Liens securing judgments for the payment of money (or appeal or other surety bonds relating to such judgments) not constituting an Event of Default under Section 10.1(k); (h) customary Liens, including customary rights of setoff and Liens arising by operation of law, against deposits in favor of banks and other depository institutions arising in the ordinary course of business; (i) Liens of a collecting bank under Section 4-210 of the Uniform Commercial Code, or similar law, on items in the course of collection; (j) other Liens on assets in the Unencumbered Pool, provided that the aggregate outstanding amount of the obligations secured by all such Liens at any time does not exceed $20,000,000 and such obligations do not include indebtedness for borrowed money, letter-of-credit obligations or similar financing indebtedness; and (k) Liens on assets other than (I) Unencumbered Property, and (II) any Equity Interests of an Unencumbered Property Owner Subsidiary or of any Unencumbered Property Equity Owner, provided that such Liens secure Indebtedness or other obligations that may be incurred or maintained without violating Section 9.1 or Section 9.3 or any other provision of this Agreement, including, without limitation, Liens in existence as of the Agreement Date and set forth in Schedule 6.1(f) and any renewals or refinancings thereof.
Person” means any individual, corporation, limited liability company, partnership, trust, unincorporated association, business, or other legal entity, and any government or any governmental agency or political subdivision thereof, including but not limited to the Borrower.
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 Internal Revenue Code and either (a) is maintained, or contributed to, by any member of the ERISA Group for employees of any member of the ERISA Group or (b) 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 for employees of any Person which was at such time a member of the ERISA Group.
Platform” has the meaning given that term in Section 8.1.
Post-Default Rate” means, in respect of any principal of any Loan or any other Obligation that is not paid when due (whether at stated maturity, by acceleration, by optional or mandatory prepayment or otherwise), a rate per annum equal to the rate that would otherwise be applicable at such time plus three percent (3.0%).
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Prime Rate” means the rate of interest per annum announced publicly by the Lender then acting as the Agent as its prime rate from time to time. The Prime Rate is not necessarily the best or the lowest rate of interest offered by the Lender acting as the Agent or any other Lender.
Principal Office” means the office of the Agent located at 225 Franklin Street, Boston, Massachusetts, or such other office of the Agent as the Agent may designate from time to time.
Private Placement Bonds” means the (a) 4.35% private placement notes due August 22, 2024 in the original face amount of $148,000,000, and (b) 4.56% private placement notes due August 22, 2026 in the original face amount of $192,000,000.
QFC” has the meaning given that term in Section 12.21.
QFC Credit Support” has the meaning given that term in Section 12.21.
Rating Agency” means each of Moody’s, S&P and Fitch.
“Real Estate” means all real property (including any improvements, fixtures, equipment and related tangible personal property) in which the Borrower or any of its Subsidiaries has a fee, leasehold, mortgage or other interest, including, without limitation, the Unencumbered Properties.
"Recipient" means the Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of any Loan Party under the Loan Documents.
Recreation Real Estate” means recreational real estate as so classified by the Borrower including ski resorts, attraction properties, experiential lodging, fitness and wellness properties and cultural venues, in each case as so classified by the Borrower (including, but not limited to, EPR Senior Property Loans secured by EPR Senior First Mortgages on such properties).
Redeemable Preferred Stock” means any preferred stock issued by a Person which is at any time prior to the Termination Date either (i) mandatorily redeemable (by sinking fund or similar payments or otherwise) or (ii) redeemable at the option of the holder thereof.
Reference Time” with respect to any setting of the then-current Benchmark means (1) if such Benchmark is USD LIBOR, 11:00 a.m. (London time) on the day that is two Business Days preceding the date of such setting, (2) if such Benchmark is EURIBOR Rate, 11:00 a.m. Brussels, Belgium time two Eurocurrency Business Days preceding the date of such setting, (3) if such Benchmark is TIBOR Rate, 11:00 a.m. Tokyo, Japan time two Business Days preceding the date of such setting, (4) if the Benchmark is the Canadian CDOR Rate, 10:00 a.m. Toronto, Canada time two Business Days preceding the date of such setting, (5) if the Benchmark is the BBSY Rate, 10:30 a.m. Melbourne, Australia time two Business Days preceding the date of such setting, (5) if the Benchmark is SONIA, then four Business Days prior to such setting, (6) if the Benchmark is SARON, then four Business Days prior to such setting or (7) if such Benchmark is
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none of the USD LIBOR, the EURIBOR Rate, the TIBOR Rate, Canadian CDOR Rate, BBSY Rate, SONIA or SARON, the time determined by the Agent in its reasonable discretion.
Register” has the meaning given that term in Section 12.5(e).
Regulatory Change” means, with respect to any Lender, any change effective after the Agreement Date in Applicable Law (including without limitation, Regulation D of the Board of Governors of the Federal Reserve System) or the adoption or making after such date of any interpretation, directive or request applying to a class of banks, including such Lender, of or under any Applicable Law (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) by any Governmental Authority or monetary authority charged with the interpretation or administration thereof or compliance by any Lender with any request or directive regarding capital adequacy or liquidity; notwithstanding anything herein to the contrary, (a) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (b) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Regulatory Change”, regardless of the date enacted, adopted or issued.
Reimbursement Obligations” has the meaning given that term in Section 2.2(d).
REIT” means a Person qualifying for treatment as a “real estate investment trust” under the Internal Revenue Code.
REIT Status” means with respect to the Borrower its status as a real estate investment trust as defined in Section 856(a) of the Internal Revenue Code.
Relevant Governmental Body” has the meaning given that term in Section 4.9.
Relevant Rate” has the meaning given that term in Section 4.9.
Rent Roll” means a report prepared by the Borrower showing for each Unencumbered Property owned or leased by the Borrower or an Eligible Subsidiary, its occupancy, lease expiration dates, lease rent and other information in substantially the form presented to the Lenders prior to the date hereof or in such other form as may have been approved by the Agent.
Replacement Reserve” means (i) with respect to any Real Estate owned or leased by the Borrower or an Eligible Subsidiary, an amount equal to twenty cents ($.20) per annum multiplied by the Net Rentable Area of such Real Estate, and (ii) with respect to any Real Estate that is subject to an EPR Senior First Mortgage, an amount equal to twenty cents ($.20) per annum multiplied by Borrower’s reasonable good faith estimate of what the Net Rentable Area of such Real Estate would have been had such Real Estate been subject to a Lease rather than an EPR Senior First Mortgage.
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Required Lenders” means, as of any date, Lenders having greater than 50% of the aggregate amount of the Revolving Credit Commitments (not held by Defaulting Lenders who are not entitled to vote), or, if the Revolving Credit Commitments have been terminated or reduced to zero, the principal amount of the aggregate outstanding Revolving Credit Loans (not held by Defaulting Lenders who are not entitled to vote). Commitments and Loans held by Defaulting Lenders shall be disregarded when determining the Required Lenders.
Reserve Percentage” means, for any Interest Period, that percentage which is specified three (3) Business Days before the first day of such Interest Period by the Board of Governors of the Federal Reserve System (or any successor) or any other Governmental Authority with jurisdiction over Agent or any Lender for determining the maximum reserve requirement (including, but not limited to, any marginal reserve requirement) for Agent or any Lender with respect to liabilities constituting of or including (among other liabilities) Eurocurrency Rate or Canadian dollar liabilities in an amount equal to that portion of the Loan affected by such Interest Period and with a maturity equal to such Interest Period.
Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
Responsible Officer” means with respect to the Borrower or any other Subsidiary, the chief executive officer and the chief financial officer of the Borrower or such Subsidiary.
Revaluation Date” means (a) for purposes of borrowing, converting or continuing a Revolving Credit Loan or issuing, amending or extending a Letter of Credit (including for purposes of calculating the Revolving Credit Commitments and Revolving Credit Exposure on such date), including, any Revolving Credit Loans which are made by the Revolving Credit Lenders for purposes of reimbursing the Agent with respect to amounts drawn under a Letter of Credit pursuant to Section 2.2(e), the date on which notice of such borrowing, conversion, continuation, issuance, participation, amendment or extension is deemed given pursuant to this Agreement (or, if no such notice is required (or such requirement for giving notice is waived), the date of such borrowing, conversion, continuation, issuance, amendment or extension); (b) for purposes of determining the amount of any increase to the Revolving Credit Commitments pursuant to Section 2.14 or the amount of Revolving Credit Commitments that the Borrower elects to extend pursuant to Section 2.16, or determining compliance with any applicable covenant or condition precedent for any such increase or extension which requires determination as of the date when the request for such increase or extension is given, on the date that the applicable request for such increase or extension is deemed given pursuant to this Agreement, (c) for purposes of determining compliance with any applicable covenant or condition precedent for any increase to the Revolving Credit Commitments pursuant to Section 2.14 or the amount of Revolving Credit Commitments that the Borrower elects to extend pursuant to Section 2.16 (other than the requirement for providing notice thereof or any determining compliance with any applicable covenant or condition precedent which requires determination as of the date of the request for such increase or extension, as applicable, which shall be governed by clause (b) above), on the applicable effective date of such increase or extension, as the case may be, (d) for purposes of optionally prepaying Revolving Credit Loans or optionally reducing the Revolving
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Credit Commitments (the Revolving Credit Commitments and Revolving Credit Exposure on such date), the date notice of such prepayment or reduction is deemed given pursuant to this Agreement (or, if no such notice is required (or the requirement for such notice is waived), the date of such optional prepayment or reduction of Commitments); (e) for purposes of calculating any fee or mandatory prepayment or mandatory commitment termination due hereunder, the date upon which such fee became due and payable or the date upon which such mandatory prepayment or mandatory commitment termination arose, provided that for purposes of making any prepayment required pursuant to Section 2.6(b), the Revaluation Date applicable to such prepayment shall be the last calendar day of each calendar month prior to the Revolving Credit Termination Date; provided, further, that, for the avoidance of doubt, any payments or prepayments of principal amounts of Loans and repayments of drawings on Letters of Credit will be made in the currency in which such Loan or Letter of Credit is denominated, (f) for purposes of calculating any financial covenant or any applicable monetary limit in article IX with respect to all amounts not denominated in Dollars, the date of determination for such financial covenant (except, in each case, (i) the Dollar Equivalent of the termination value of any Derivatives Contract shall be determined as of the day set forth in the definition of “Indebtedness”, and (ii) the calculation of any such covenant which requires the determination of an Income Component of the Borrower or any of its respective Subsidiaries or Unconsolidated Affiliates for amounts not denominated in Dollars shall be determined in accordance with the last sentence of Section 1.3(b)); (g) any Sharing Date; (h) any other date under this Agreement when the Dollar Equivalent or Alternative Currency Equivalent is to be determined; and (i) at any time that a Default or Event of Default exists or an Sharing Event has occurred and is continuing, such additional dates as the Agent shall determine.
Revolving Commitment Percentage” means, as to each Revolving Credit Lender, the ratio, expressed as a percentage, of (a) the amount of such Revolving Credit Lender’s Revolving Credit Commitment to (b) the aggregate amount of the Revolving Credit Commitments of all Revolving Credit Lenders; provided, however, that if at the time of determination the Revolving Credit Lender’s Revolving Credit Commitments have terminated or been reduced to zero (0), the “Revolving Commitment Percentage” of each Revolving Credit Lender shall be the Revolving Commitment Percentage of such Revolving Credit Lender in effect immediately prior to such termination or reduction; provided, further, that from and after the occurrence of any Sharing Event, each Revolving Credit Lender’s Revolving Commitment Percentage shall mean and refer to that Revolving Credit Lender’s Sharing Event Percentage; all as and when determined solely but reasonably by the Agent from time to time.
Revolving Credit Commitment” means, as to each Revolving Credit Lender, its obligation to (a) make Revolving Credit Loans to the Borrower pursuant to Section 2.1(b), and (b) purchase participations in LC Exposures, in an amount up to, but not exceeding, the sum of such Lenders Alternative Currency Revolving Credit Commitment and Dollar Revolving Credit Commitment set forth for such Lender on Schedule CA attached hereto or as set forth in the applicable Assignment and Assumption Agreement, as the same may be reduced from time to time pursuant to Section 2.10, or increased from time to time pursuant to Section 2.14, or increased or reduced as appropriate to reflect any assignments to or by such Lender effected in
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accordance with Section 12.5; provided, however, that from and after the occurrence of any Sharing Event, each Lender’s Revolving Credit Commitment shall mean and refer to that Lender’s Adjusted Sharing Event Commitment; all as and when determined solely but reasonably by the Agent.
Revolving Credit Exposure” means, at any time, the sum of (a) the aggregate Outstanding Amount of Revolving Credit Loans held by the Revolving Credit Lenders and (b) the LC Exposure of the Revolving Credit Lenders.
Revolving Credit Facility” means, at any time, the Revolving Credit Loans and Letters of Credit which the Revolving Credit Lenders and Agent have agreed to make or issue in accordance with the terms of this Agreement in the aggregate amount of the Revolving Credit Lenders’ Revolving Credit Commitments at such time.
Revolving Credit Facility Amount” means the initial $1,000,000,000.00 unsecured revolving facility, plus any increase thereto pursuant to Section 2.14.
Revolving Credit Lender” means any Lender that has a Revolving Credit Commitment.
Revolving Credit Loan” has the meaning specified in Section 2.1(b).
Revolving Credit Note” has the meaning specified in Section 2.9(a)(i).
Revolving Credit Termination Date” means the earliest of (a) the date on which the Revolving Credit Commitments are reduced to zero under Section 2.10, (b) October 6, 2025, such date being subject to (i) extension pursuant to Section 2.16 or (ii) modification pursuant to Section 2.14(e)(vi) with respect to any new revolving tranche created under any Increase Option affecting the Revolving Credit Facility, or (c) the date on which the Revolving Credit Commitments are terminated pursuant to Section 10.3.
Same Day Funds” means, with respect to disbursements and payments in Dollars, immediately available funds and, with respect to disbursements and payments in an Alternative Currency, same day or other funds as may be determined by the Agent to be customary in the place of disbursement or payment for the settlement of international banking transactions in such Alternative Currency
Sanctioned Person” means (i) any Person listed in any Sanctions-related list of designated Persons maintained by any Governmental Authority of the United States of America, including without limitation, OFAC or the U.S. Department of State, or by the United Nations Security Council, Her Majesty’s Treasury, the European Union or any other Governmental Authority, (ii) any Person located, operating, organized or resident in a Designated Jurisdiction, (iii) an agency of the government of a Designated Jurisdiction, or (iv) any Person owned or Controlled by any Persons or agencies described in any of the preceding clauses (i) through (iii).
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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 OFAC or the U.S. Department of State or (b) the United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom.
SARON” means, with respect to any Business Day, a rate per annum equal to the Swiss Average Rate Overnight for such Business Day published by the SARON Administrator on the SARON Administrator’s Website.
SARON Administrator” means the SIX Swiss Exchange AG (or any successor administrator of the Swiss Average Rate Overnight).
SARON Administrator’s Website” means SIX Swiss Exchange AG’s website, currently at https://www.six-group.com, or any successor source for the Swiss Average Rate Overnight identified as such by the SARON Administrator from time to time.
Secured Indebtedness” means Indebtedness secured, via a pledge or otherwise, by a Lien.
Securities Act” means the Securities Act of 1933, as amended from time to time, together with all rules and regulations issued thereunder.
Sharing Date” means any date on which any Sharing Event shall have occurred.
Sharing Event” means either (i) the occurrence of an Event of Default under Section 10.1(h), (i), or (j), or (ii) any of the Commitments shall have been terminated prior to the Revolving Credit Termination Date and/or the Loans shall have been declared immediately due and payable, in either case pursuant to Section 10.3.
Sharing Event Percentage” means, as applicable, with respect to any Revolving Credit Lender at any time after the occurrence of a Sharing Event, the percentage (carried out to the ninth decimal place) of the Revolving Credit Commitments represented by such Revolving Credit Lender’s Adjusted Sharing Event Commitment at such time, subject to adjustment as provided in Section 3.11 (after giving effect to the provisions of Section 3.13), all as and when determined solely but reasonably by the Agent. The initial Sharing Event Percentage of each Lender after giving effect to this Agreement is set forth opposite the name of such Lender on Schedule CA or in the Assignment and Assumption Agreement pursuant to which such Lender becomes a party hereto, as applicable.
Short-Term Unsecured Indebtedness” means Unsecured Indebtedness which matures on or prior to the two-year anniversary of the applicable date of calculation.
Six Flags Real Estate” means Recreation Real Estate operated by Six Flags Entertainment Corporation or its affiliates.
SOFR” has the meaning given that term in Section 4.9.
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Solvent” means, when used with respect to any Person, that (a) the fair value and the fair salable value of its assets (excluding any Indebtedness due from any affiliate of such Person) are each in excess of the fair valuation of its total liabilities (including all contingent liabilities computed at the amount which, in light of all the facts and circumstances existing at such time, represents the amount that could reasonably be expected to become an actual and matured liability); (b) such Person is able to pay its debts or other obligations in the ordinary course as they mature; and (c) such Person has capital not unreasonably small to carry on its business and all business in which it proposes to be engaged.
SONIA” means, with respect to any Business Day, a rate per annum equal to the Sterling Overnight Index Average for such Business Day published by the SONIA Administrator on the SONIA Administrator’s Website.
SONIA Administrator” means the Bank of England (or any successor administrator of the Sterling Overnight Index Average).
SONIA Administrator’s Website” means the Bank of England’s website, currently at http://www.bankofengland.co.uk, or any successor source for the Sterling Overnight Index Average identified as such by the SONIA Administrator from time to time.
S&P” means Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies, Inc., and its successors.
Spot Rate” means, for a Currency, the rate reasonably determined by the Agent to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such Currency with another Currency through its principal foreign exchange trading office at approximately 11:00 a.m. (London time) on the date two (2) Business Days prior to the date as of which the foreign exchange computation is made; provided that the Agent may obtain such spot rate from another financial institution designated by the Agent if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such Currency.
Stated Amount” means the amount available to be drawn by a beneficiary under a Letter of Credit from time to time, as such amount may be increased or reduced from time to time in accordance with the terms of such Letter of Credit.
Sterling”, “GBP” or “£” means the lawful currency of the United Kingdom.
Subsidiary” (or, if more than one, “Subsidiaries”) means, for any Person, any corporation, limited liability company, partnership or other entity of which at least a majority of the Equity Interests having by the terms thereof ordinary voting power to elect a majority of the board of directors or other individuals performing similar functions of such corporation, limited liability company, partnership or other entity (without regard to the occurrence of any contingency) is at the time directly or indirectly owned or controlled by such Person or one or
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more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person and whose accounts are consolidated with those of such Person pursuant to GAAP.
Subsidiary Guarantors” means, on the Effective Date, none, and, after the Effective Date, any Subsidiary that becomes a Subsidiary Guarantor hereunder in compliance with the provisions of Section 7.15.
Subsidiary Guaranty” means the guaranty, if any, substantially in the form of Exhibit G attached hereto, executed and delivered after the Effective Date pursuant to Section 7.15, including any joinders executed by additional Subsidiary Guarantors, if any, thereafter.
Supported QFC” has the meaning given that term in Section 12.21.
Swiss Francs” or “CHF” means the lawful currency of the Swiss Confederation.
Syndication Agents” has the meaning set forth in the Preamble hereto.
Tangible Net Worth” means the equity of any Person as determined in accordance with GAAP, less the total book value of all assets of such Person properly classified as intangible assets under generally accepted accounting principles, including such items as goodwill, the purchase price of acquired assets in excess of the fair market value thereof, trademarks, trade names, service marks, brand names, copyrights, patents and licenses, and rights with respect to the foregoing.
TARGET Day” means any day on which the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET) payment system (or, if such payment system ceases to be operative, such other payment system (if any) determined by the Agent to be a suitable replacement) is open for the settlement of payments in Euro.
Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
Tenant” means a tenant of the Borrower or an Eligible Subsidiary which leases space in an Unencumbered Property pursuant to a Lease.
Term ESTR” has the meaning given that term in Section 4.9.
Term SOFR” has the meaning given that term in Section 4.9.
Term TONA” has the meaning given that term in Section 4.9.
Termination Date” means the Revolving Credit Termination Date.
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Theater(s)” means a theater constructed or substantially remodeled subsequent to 1995 for the showing of first run motion pictures which theater contains multiple screens, digital sound and enhanced seat design.
Third Party Information” means information provided by or in reliance on information provided by Tenants, EPR Mortgagors or other independent sources acceptable to Agent, and upon which the Borrower or an Eligible Subsidiary relies and has no knowledge or reason to believe is false, inaccurate or misleading in any respects.
TIBOR Rate” means, for any Interest Period with respect to Revolving Loans denominated in Yen, the Tokyo interbank offered rate, or a comparable or successor rate which rate is approved by the Agent, for deposits in Yen and having a maturity approximately equal to the requested Interest Period published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Agent from time to time) at approximately 11:00 a.m. (Tokyo, Japan time) on the day that is two (2) Business Days prior to the first day of such Interest Period. Notwithstanding the foregoing, if at any time the TIBOR Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
Titled Agents” means each of the Syndication Agents, the Documentation Agents, and the Arrangers, and their respective successors and permitted assigns.
TONA” has the meaning given that term in Section 4.9.
TONA Administrator” has the meaning given that term in Section 4.9.
TONA Administrator’s Website” has the meaning given that term in Section 4.9.
Topgolf Real Estate” means Recreation Real Estate operated by Topgolf International, Inc. or its affiliates.
Total Asset Value” means without duplication, the sum of: (1) unrestricted cash and marketable securities held by the Borrower and its Subsidiaries; plus (2) Total Real Estate Value; plus (3) to the extent not already included in Total Real Estate Value, land held for development and property under development, at Cost of Borrower and its Subsidiaries, plus (4) assets associated with Guarantees issued by the Borrower or one or more of its Subsidiaries, to the extent the Borrower or one or more of its Subsidiaries has a subrogation claim, Lien or ownership interest with respect to such assets and such assets are not included in Total Real Estate Value.
Total Debt” means with respect to the Borrower and any of its Subsidiaries, without duplication, all Indebtedness, plus the face amount of any undrawn letters of credit, plus any Contingent Obligations.
Total Real Estate Value” means EBITDA (but without any deduction in the determination thereof for unallocated general and administrative expenses) of the Borrower and
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its Subsidiaries for the most recent quarter, with adjustments to remove the impact on EBITDA from vacant properties and Managed Properties (including the Kartrite Resort and Indoor Waterpark in Sullivan County, New York) and with pro forma adjustments for any assets acquired or sold during the relevant period, multiplied by four (4) (which is the annualization factor), and then divided by the applicable capitalization rate (the “Capitalized Value”). Such capitalization rate shall be (a) 7.5% for all Entertainment Real Estate, Topgolf Real Estate, Vail Real Estate and Six Flags Real Estate, (b) 8.0% for all Education Real Estate, (c) 8.5% for all Recreation Real Estate (other than Topgolf Real Estate, Vail Real Estate and Six Flags Real Estate) and Other Real Estate and (d) 7.25% for all Gaming Real Estate. Any asset under construction with an executed Lease or EPR Senior First Mortgage will be included in Total Real Estate Value at the Borrower’s or Subsidiary's, as applicable, Cost until construction is completed. Notwithstanding the foregoing, (i) Capitalized Value for any property (including property subject to an EPR Senior First Mortgage) with EBITDA of less than zero shall be deemed to equal zero, and (ii) there shall be deducted from Total Real Estate Value for any quarter the amount of unallocated general and administrative expenses not deducted in the determination of EBITDA for such quarter, multiplied by four (4), and then divided by 8.5%. Additionally, (a) vacant properties shall be valued at Cost, (b) Managed Properties (other than Kartrite Resort and Indoor Waterpark in Sullivan County, New York) shall be valued at higher of Cost or its Capitalized Value, and (c) Kartrite Resort and Indoor Waterpark in Sullivan County, New York shall be valued at higher of 50% of cost or Capitalized Value until Dec 31, 2023 after which time its value shall be based on Capitalized Value, except using actual trailing 12-month EBITDA (and not quarterly annualized deemed EBITDA) but, in any case, not less than zero.
Type” with respect to any Loan, refers to whether such Loan is a Eurocurrency Loan or Base Rate Loan.
UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
Unadjusted Benchmark Replacement” has the meaning given that term in Section 4.9.
USD LIBOR” has the meaning given that term in Section 4.9.
U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Internal Revenue Code.
U.S. Special Resolution Regimes” has the meaning given that term in Section 12.21.
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U.S. Tax Compliance Certificate” has the meaning specified in Section 3.12(f)(ii)(B)(III).
Unconsolidated Affiliate” means, with respect to any Person, any other Person in whom such Person holds an Investment, which Investment is accounted for in the financial statements of such Person on an equity basis of accounting and whose financial results would not be consolidated under GAAP with the financial results of such Person on the consolidated financial statements of such Person.
Unencumbered Asset Value” means with respect to the Unencumbered Pool, the Unencumbered Property NOI as of the end of the most recent quarter, with pro forma adjustments for any assets acquired or sold during the relevant period, annualized, and then capitalized at the rate of (i) 7.5% for any Entertainment Real Estate, Topgolf Real Estate, Vail Real Estate or Six Flags Real Estate, (ii) 8.0% for Education Real Estate, (iii) 8.5% for Recreation Real Estate (excluding Topgolf Real Estate, Vail Real Estate and Six Flags Real Estate) and Other Real Estate, and (iv) 7.25% for Gaming Real Estate. Notwithstanding the foregoing, the Capitalized Value of any Unencumbered Pool asset will not be less than zero. Additionally (a) Managed Properties (other than Kartrite Resort and Indoor Waterpark in Sullivan County, New York) shall be valued at higher of Cost or its Capitalized Value, and (b) Kartrite Resort and Indoor Waterpark in Sullivan County, New York shall be valued at higher of 50% of cost or Capitalized Value until Dec 31, 2023 after which time its value shall be based on Capitalized Value, except using actual trailing 12-month EBITDA (and not quarterly annualized deemed EBITDA) but, in any case, not less than zero. Any Unencumbered Pool asset under construction with an executed Lease or subject to an EPR Senior First Mortgage or any Managed Property under construction will be included in the calculation at Cost of Borrower or its applicable Subsidiary until construction is completed. For purposes of this definition, to the extent that Unencumbered Asset Value attributable to International Investments (excluding Canada) would exceed fifteen percent (15%) of the Unencumbered Asset Value, then such excess shall be excluded.
“Unencumbered Pool” means the Initial Eligible Real Estate and any Eligible Real Estate thereafter added to the Unencumbered Pool.
Unencumbered Property or Unencumbered Properties” means the Eligible Real Estate owned or leased by the Borrower or an Eligible Subsidiary or subject to an EPR Senior First Mortgage, which is included in the calculation of the Unencumbered Pool. Insofar as Unencumbered Property consists of Eligible Real Estate that is subject to an EPR Senior First Mortgage, the term “Unencumbered Property” shall be deemed to refer to such Eligible Real Estate or the related EPR Senior Property Loan, as the context may require. The initial Unencumbered Pool shall consist of the properties described in Schedule 6.1(f) (collectively, the “Initial Eligible Real Estate”). Subsequent to the Effective Date hereunder, the Borrower may add other Eligible Real Estate or substitute other Eligible Real Estate for all or a portion of the Initial Eligible Real Estate subject to the compliance with the terms of this Agreement.
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Unencumbered Property Equity Owner” means any Subsidiary that is a direct or indirect owner of an Unencumbered Property Owner Subsidiary.
Unencumbered Property Net Operating Income or “Unencumbered Property NOI” means with respect to any Unencumbered Property, for any period, the aggregate of actual recurring “property revenues” earned by the Borrower or an Eligible Subsidiary, as applicable, in such period (provided however that any amounts accrued shall only include those amounts not more than 45 days delinquent in arrears) for the Unencumbered Property (including Base Rent and expense reimbursement, but excluding straight line and percentage rent), (or in the case of Unencumbered Properties subject to EPR Senior First Mortgages, the related mortgage loan interest income) and all as otherwise determined in accordance with GAAP together with recoveries from tenants as determined in accordance with GAAP, all such amounts shall be attributable to such period and accrued according to GAAP, less (i) all “property expenses” consisting solely of expenses incurred or accrued by the Borrower or an Eligible Subsidiary, as applicable, that are directly related to the operation and ownership of such Unencumbered Property, including any real estate taxes, sales taxes, common area maintenance charges, accounting and administration, security, utilities, maintenance, janitorial, premiums for casualty and liability insurance or ground lease payments (excluding from the foregoing expenses for depreciation, amortization, interest and leasing commissions with respect to such Unencumbered Property) expensed in accordance with GAAP by the Borrower or an Eligible Subsidiary, as applicable, and (ii) an allowance for property management expenses calculated at the greater of (A) three percent (3.0%) of Base Rent or (B) actual property management expenses (the “Management Expense”), and (iii) the Replacement Reserve (provided that the deduction described in this clause (iii) shall not apply to Unencumbered Property consisting of property under development).
Unencumbered Property Owner Subsidiary” means each Subsidiary that owns, leases or has a mortgage interest in any Real Estate included in the Unencumbered Pool.
“Unencumbered Property Replacement” means any substitution, replacement or addition of Unencumbered Property hereunder, pursuant to Section 7.12 or Section 10.2.
Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as adopted by the State of New York.
Unsecured Indebtedness” means the amount of the Total Debt which is not Secured Indebtedness.
Vail Real Estate” means Recreation Real Estate operated by Vail Resorts, Inc. or its affiliates.
Wholly Owned Domestic Subsidiary” means a Wholly Owned Subsidiary of the Borrower that was formed or incorporated, and is existing, under the laws of any State of the United States of America or the District of Columbia.
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Wholly Owned Subsidiary” means any Subsidiary of a Person in respect of which all of the equity securities or other ownership interests (other than, in the case of a corporation, directors’ qualifying shares) are at the time directly or indirectly owned or controlled by such Person or one or more other Subsidiaries of such Person or by such Person and one or more other Subsidiaries of such Person.
Withholding Agent” means any Loan Party and the Agent.
Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
Yen”, “JPY” or “¥” means the lawful currency of Japan.
Section 1.2.General; References to Times.
(a)GAAP. Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that, if Borrower shall notify Agent that it requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if Agent notifies Borrower that Agent requests an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.
(b)Leases. Notwithstanding anything to the contrary contained in Section 1.2(a) above or the definition of "Capitalized Lease Obligations," Capitalized Lease Obligations shall exclude operating lease liabilities required to be recorded on the balance sheet of a Person pursuant to Accounting Standards Codification Topic 842, Leases (ASC 842), provided that all Compliance Certificates delivered to the Agent in accordance with the terms of this Agreement shall contain a schedule showing such non-GAAP adjustments.
(c)References. References in this Agreement to “Sections”, “§”, “Articles”, “Exhibits” and “Schedules” are to sections, articles, exhibits and schedules herein and hereto unless otherwise indicated. References in this Agreement to any document, instrument or
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agreement (a) shall include all exhibits, schedules and other attachments thereto, (b) shall include all documents, instruments or agreements issued or executed in replacement thereof, to the extent permitted hereby and (c) shall mean such document, instrument or agreement, or replacement or predecessor thereto, as amended, supplemented, restated or otherwise modified as of the date of this Agreement and from time to time thereafter to the extent not prohibited hereby and in effect at any given time. Wherever from the context it appears appropriate, each term stated in either the singular or plural shall include the singular and plural, and pronouns stated in the masculine, feminine or neuter gender shall include the masculine, the feminine and the neuter. References herein to "including" or the like shall not be limiting and shall be interpreted as "including but not limited to". Unless explicitly set forth to the contrary, a reference to “Subsidiary” means a Subsidiary of the Borrower or a Subsidiary of such Subsidiary and a reference to an “Affiliate” means a reference to an Affiliate of the Borrower. Titles and captions of Articles, Sections, subsections and clauses in this Agreement are for convenience only, and neither limit nor amplify the provisions of this Agreement. Unless otherwise indicated, all references to time are references to New York, New York time.
Section 1.3.Currencies; Currency Equivalents.
(a)At any time, any reference in the definition of the term “Alternative Currency” or in any other provision of this Agreement or any other Loan Document to the Currency of any particular nation shall mean the then lawful currency of such nation at such time whether or not the name of such Currency is the same as it was on the date of this Agreement or such other Loan Document, as the case may be.
(b)The Agent shall determine the Spot Rates as of each Revaluation Date to be used for calculating the Dollar Equivalent of outstanding Revolving Credit Loans denominated in Alternative Currencies. Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates employed in converting any amounts between the applicable Currencies until the next Revaluation Date to occur. Except for purposes of financial statements delivered hereunder or calculating covenants hereunder or except as otherwise provided herein, the applicable amount of any Currency (other than Dollars) for purposes of the Loan Documents shall be the Dollar Equivalent of such amount as so determined by the Agent. All financial statements delivered hereunder and covenants (including the respective components of such covenants) calculated hereunder by Borrower shall be calculated in Dollars using, for amounts denominated in currencies other than Dollars, the Spot Rate then in effect or such other rate as may be approved by Agent in its reasonable discretion; provided, however, that for any such financial statements or covenant calculations that require the determination of Net Operating Income, Net Income (or Loss), and/or EBITDA (each, an “Income Component”) of Borrower or any of its Subsidiaries or Unconsolidated Affiliates, any amounts comprising such Income Components that are denominated in currencies other than Dollars shall be converted to Dollars using the same exchange rates used by the Borrower for its financial statements filed (or to be filed) with the SEC for the applicable period.
(c)For purposes of determining (i) whether the amount of any Loan, together with all other Loans and LC Exposure then outstanding, would exceed the Revolving Credit
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Commitments or would cause a violation of any covenants contained herein, (ii) the aggregate unutilized amount of the Revolving Credit Commitments, (iii) the outstanding aggregate principal amount of the Loans or the LC Exposure, and (iv) the LC Exposure in respect of any Letters of Credit denominated in an Alternative Currency, the outstanding principal amount of any Alternative Currency Loan or any LC Exposure relating to any Letter of Credit that is denominated in any Alternative Currency shall be deemed to be the Dollar Equivalent of the amount of the Alternative Currency of such Loan or such LC Exposure determined by Agent as of the applicable Revaluation Date.
(d)For purposes of determining, in connection with the borrowing, converting, continuing or prepaying of a Loan hereunder, the termination of any Commitment hereunder or the issuance, amendment or extension of a Letter of Credit hereunder on any date, any amount (including, without limitation, any required minimum or multiple amount) is expressed in Dollars, but such Loan or Letter of Credit is denominated in an Alternative Currency, such amount shall be the relevant Alternative Currency Equivalent of such Dollar amount (rounded to the nearest 1,000 units of such Alternative Currency), as determined by the Agent as of the applicable Revaluation Date.
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Section 1.4.Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Stated Amount, or the Dollar Equivalent of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any application or other documents related thereto, provides for one or more automatic increases in the Stated Amount, or the Dollar Equivalent thereof, the amount of such Letter of Credit shall be deemed to be the maximum Stated Amount, or the Dollar Equivalent of the Stated Amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum Stated Amount, or the Dollar Equivalent is in effect at such times.
Section 1.5.Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time.
Section 1.6.Benchmark Notification. The Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to LIBOR, EURIBOR, TIBOR, BBSY or CDOR or with respect to any alternative or successor benchmark thereto, or replacement rate therefor (including, for the avoidance of doubt, the selection of such rate and any related credit spread or other adjustment) or thereof, including, without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate, as it may or may not be adjusted pursuant to Section 4.9, will be similar to, or produce the same value or economic equivalence of, LIBOR, EURIBOR, TIBOR, BBSY or CDOR or any other benchmark or have the same volume or liquidity as did LIBOR, EURIBOR, TIBOR, BBSY or CDOR or any other benchmark rate prior to its discontinuance or unavailability.
ARTICLE II. - CREDIT FACILITY
Section 2.1.Loans.
(a)Intentionally Omitted.
(b)The Revolving Credit Loan. Subject to the terms and conditions set forth herein, each (i) Revolving Credit Lender that holds a Dollar Revolving Credit Commitment severally agrees to make revolving loans to the Borrower from time to time during the period from the Effective Date to the Revolving Credit Termination Date in Dollars and (ii) Revolving Credit Lender that holds an Alternative Currency Revolving Credit Commitment severally agrees to make revolving loans to the Borrower from time to time during the period from the Effective Date to the Revolving Credit Termination Date in Dollars or in any Alternative Currency (each such loan described in clauses (i) and (ii), a “Revolving Credit Loan”), in each case, as requested by the Borrower in an aggregate Outstanding Amount that will not result in (x) the
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Outstanding Amount of such Revolving Credit Lender’s Revolving Credit Exposure exceeding such Revolving Credit Lender’s Revolving Credit Commitment, (y) the Outstanding Amount of such Revolving Credit Lender’s Revolving Credit Exposure with respect to Loans and Letters of Credit denominated in any Alternative Currency exceeding such Revolving Credit Lender’s Alternative Currency Revolving Credit Commitment, or (z) the aggregate Outstanding Amount of the Revolving Credit Exposure with respect to Loans and Letters of Credit denominated in Alternative Currencies exceeding the Alternative Currency Sublimit. Subject to the terms and conditions of this Agreement, during the period from the Effective Date to but excluding the Revolving Credit Termination Date, the Borrower may borrow, repay and reborrow Revolving Credit Loans hereunder. The (A) Outstanding Amount of the Aggregate Credit Exposure shall not at any time exceed the lesser of (i) the Facility Amount and (ii) the aggregate Commitments, and (B) the aggregate Outstanding Amount of the Revolving Credit Exposures of the Revolving Credit Lenders shall not at any time exceed the lesser of (i) the Revolving Credit Facility Amount and (ii) the aggregate Revolving Credit Commitments. Each borrowing of Revolving Credit Loans shall be made in the same Currency and Type and made by the Revolving Lenders pro rata in accordance with each Revolving Credit Lender’s Dollar Revolving Commitment Percentage or Alternative Currency Revolving Commitment Percentage, as applicable.
(c)Requesting Loans. The Borrower shall give the Agent notice pursuant to a Notice of Borrowing or telephonic notice of each borrowing of Loans. Each Notice of Borrowing shall be delivered to the Agent before 11:00 a.m. (i) in the case of Eurocurrency Loans on the date three Business Days prior to the proposed date of such borrowing and (ii) in the case of Base Rate Loans, on the date one Business Day prior to the proposed date of such borrowing. Any such telephonic notice shall include all information to be specified in a written Notice of Borrowing, and shall be promptly confirmed in writing by the Borrower pursuant to a Notice of Borrowing sent to the Agent by telecopy on the same day of the giving of such telephonic notice. The Agent will transmit by telecopy the Notice of Borrowing (or the information contained in such Notice of Borrowing) to each Lender promptly upon receipt by the Agent. Each Notice of Borrowing or telephonic notice of each borrowing shall be irrevocable once given and binding on the Borrower.
(d)Location of Funding. Each Lender may, at its option, make any Loan available to any Borrower by causing any foreign or domestic branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of such Borrower to repay such Loan in accordance with the terms of this Agreement or result in increased costs to the Borrower.
(e)Disbursement of Revolving Credit Loan Proceeds. No later than 1:00 p.m. (or in the case of a borrowing denominated in an Alternative Currency, not later than the Applicable Time specified by the Agent) on the date specified in each applicable Notice of Borrowing, each applicable Revolving Credit Lender will make available for the account of its applicable Lending Office to the Agent at the Principal Office, in Same Day Funds in the applicable Currency, the proceeds of the Revolving Credit Loan to be made by such Revolving Credit Lender. With respect to Revolving Credit Loans to be made after the Effective Date, unless the Agent shall
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have been notified by any Revolving Credit Lender prior to the specified date of borrowing that such Revolving Credit Lender does not intend to make available to the Agent (in the applicable Currency and by the Applicable Time) the Revolving Credit Loan to be made by such Revolving Credit Lender on such date in accordance with the provisions of this Agreement, the Agent may assume that such Revolving Credit Lender will make the proceeds of such Revolving Credit Loan available to the Agent on the date of the requested borrowing as set forth in the Notice of Borrowing and the Agent may (but shall not be obligated to), in reliance upon such assumption, make available to the Borrower the amount of such Revolving Credit Loan to be provided by such Revolving Credit Lender. Subject to satisfaction of the applicable conditions set forth in Article V for such borrowing, the Agent will make the proceeds of such borrowing available to the Borrower no later than 2:00 p.m. on the date and at the account specified by the Borrower in such Notice of Borrowing. If such Lender does not pay such corresponding amount in the applicable Currency upon the Agent’s demand therefor, the Agent will promptly notify the Borrower, and the Borrower shall promptly pay such corresponding amount to the Agent. The Agent shall also be entitled to recover from the Lender or the Borrower, as the case may be, interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Agent to the Borrower to the date such corresponding amount is recovered by the Agent at a per annum rate equal to (i) from the Borrower at the applicable interest rate for such Loan or (ii) from a Lender at the Federal Funds Rate plus one percent (1%), plus with respect to any payment to be made by a Lender that is denominated in an Alternative Currency, the cost to Agent of funding such amount (as determined by Agent).
Section 2.2.Letters of Credit.
(a)Letters of Credit. Subject to the terms and conditions of this Agreement, the Agent, on behalf of the Revolving Credit Lenders, agrees to issue for the account of the Borrower or one of its Subsidiaries during the period from and including the Effective Date to, but excluding, the date 30 days prior to the Revolving Credit Termination Date, one or more letters of credit (each a “Letter of Credit”) denominated in Dollars or any other Alternative Currency up to a maximum aggregate Outstanding Amount at any one time outstanding not to exceed the LC Commitment Amount; provided that the Agent shall not issue, extend, or renew any Letters of Credit denominated in an Alternative Currency, and Revolving Credit Lenders shall not be obligated to participate in such Letters of Credit if, after giving effect to such issuance, extension, or renewal, (x) the Outstanding Amount of any Revolving Credit Lender’s Revolving Credit Exposure would exceed such Revolving Credit Lender’s Revolving Credit Commitment, (y) the Outstanding Amount of any Revolving Credit Lender’s Revolving Credit Exposure with respect to Loans and Letters of Credit denominated in any Alternative Currency would exceed such Revolving Credit Lender’s Alternative Currency Revolving Credit Commitment, or (z) the aggregate Outstanding Amount of the Revolving Credit Exposure with respect to Loans and Letters of Credit denominated in Alternative Currencies would exceed the Alternative Currency Sublimit. The Agent shall not be obligated to issue a Letter of Credit denominated in any Alternative Currency if the Agent does not, as of the requested issuance date of such requested Letter of Credit, issue Letters of Credit in the requested Alternative Currency.
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(b)Terms of Letters of Credit. At the time of issuance, the amount, form, terms and conditions of each Letter of Credit, and of any drafts or acceptances thereunder, shall be subject to the reasonable approval by the Agent and the Borrower. Notwithstanding the foregoing, in no event may the expiration date of any Letter of Credit extend beyond the earlier of (i) the date one year from its date of issuance (or such longer period as the Agent may approve in its sole discretion) or (ii) the Revolving Credit Termination Date; provided, however, a Letter of Credit may contain a provision providing for the automatic extension of the expiration date in the absence of a notice of non-renewal from the Agent but in no event shall any such provision permit the extension of the expiration date of such Letter of Credit beyond the Revolving Credit Termination Date unless otherwise approved by the Agent and, in connection therewith, the Borrower agrees to pledge and deliver to the Agent cash collateral equal to the Outstanding Amount of such Letter of Credit no later than thirty (30) days prior to the Revolving Credit Termination Date. The Agent may, at any time and from time to time after the initial deposit of cash collateral, request that additional cash collateral be provided in order to protect against the results of exchange rate fluctuations.
(c)Requests for Issuance of Letters of Credit. The Borrower shall give the Agent written notice (or telephonic notice promptly confirmed in writing) at least 5 Business Days (or such shorter period of time as the Agent may approve in its sole discretion) prior to the requested date of issuance of a Letter of Credit, such notice to describe in reasonable detail the proposed terms of such Letter of Credit and the nature of the transactions or obligations proposed to be supported by such Letter of Credit, and in any event shall set forth with respect to such Letter of Credit the proposed (i) Stated Amount, (ii) the Currency in which such Letter of Credit is to be denominated, (iii) beneficiary, and (iv) expiration date. The Borrower shall also execute and deliver such customary letter of credit application forms as requested from time to time by the Agent. Provided the Borrower has given the notice prescribed by the first sentence of this subsection and subject to the other terms and conditions of this Agreement, including the satisfaction of any applicable conditions precedent set forth in Article V, the Agent shall issue the requested Letter of Credit on the requested date of issuance for the benefit of the stipulated beneficiary. Upon the written request of the Borrower, the Agent shall deliver to the Borrower a copy of each issued Letter of Credit within a reasonable time after the date of issuance thereof. To the extent any term of a Letter of Credit Document is inconsistent with a term of any Loan Document, the term of such Loan Document shall control.
(d)Reimbursement Obligations. Upon receipt by the Agent from the beneficiary of a Letter of Credit of any demand for payment under such Letter of Credit, the Agent shall promptly notify the Borrower of the amount to be paid by the Agent as a result of such demand (the “Reimbursement Obligations”) and the date on which payment is to be made by the Agent to such beneficiary in respect of such demand; provided, however, the Agent’s failure to give, or delay in giving, such notice shall not discharge the Borrower in any respect from the applicable Reimbursement Obligation. The Borrower hereby unconditionally and irrevocably agrees to pay and reimburse the Agent for the amount of each demand for payment under such Letter of Credit on or prior to the date on which payment is to be made by the Agent to the beneficiary thereunder, without presentment, demand, protest or other formalities of any kind (other than
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notice as provided in this subsection). In the case of an LC Disbursement with respect to any Letter of Credit denominated in an Alternative Currency, the Borrower shall reimburse the Agent in such Alternative Currency, unless (A) such Agent (at its option) shall have specified in such notice that it will require reimbursement in Dollars, or (B) in the absence of any such requirement for reimbursement in Dollars, the Borrower shall have notified the Agent promptly following receipt of the notice of drawing that the Borrower will reimburse the Agent in Dollars. In the case of any such reimbursement in Dollars of an LC Disbursement under a Letter of Credit denominated in an Alternative Currency, the Agent shall notify the Borrower of the Dollar Equivalent of the amount of the LC Disbursement promptly following the determination thereof. Upon receipt by the Agent of any payment in respect of any Reimbursement Obligation, the Agent shall promptly pay to each Revolving Credit Lender that has acquired a participation therein under the second sentence of Section 2.2(i) such Revolving Credit Lender’s Dollar Revolving Commitment Percentage or Alternative Currency Revolving Commitment Percentage, as applicable, of such payment.
(e)Manner of Reimbursement. Upon its receipt of a notice referred to in the immediately preceding subsection (d), the Borrower shall advise the Agent whether or not the Borrower intends to borrow hereunder to finance its obligation to reimburse the Agent for the amount of the related demand for payment and, if it does, the Borrower shall submit a timely request for such borrowing as provided in the applicable provisions of this Agreement. If the Borrower fails to so advise the Agent, or if the Borrower fails to reimburse the Agent for a demand for payment under a Letter of Credit by the date of such payment, then (i) if the applicable conditions contained in Article V would permit the making of Revolving Credit Loans, the Borrower shall be deemed to have requested a borrowing of Revolving Credit Loans (which shall be Base Rate Loans) in Dollars in an amount equal to the unpaid Reimbursement Obligation (expressed in Dollars based on the Dollar Equivalent amount thereof in the case of an Alternative Currency) and the Agent shall give each Revolving Credit Lender prompt notice of the amount of the Revolving Credit Loan to be made available to the Agent not later than 1:00 p.m. and (ii) if such conditions would not permit the making of Revolving Credit Loans, the provisions of subsection (j) of this Section shall apply. The limitations of Section 3.5(a) shall not apply to any borrowing of Base Rate Loans under this subsection.
(f)Effect of Letters of Credit on Commitments. Upon the issuance by the Agent of any Letter of Credit and until such Letter of Credit shall have expired or been terminated, the Commitment of each Revolving Credit Lender shall be deemed to be utilized for all purposes of this Agreement in an amount equal to the product of (i) such Revolving Credit Lender’s Revolving Commitment Percentage (if such Letter of Credit is denominated in Dollars) or Alternative Currency Revolving Commitment Percentage (if such Letter of Credit is denominated in any Alternative Currency) and (ii) the sum of (A) the Outstanding Amount of such Letter of Credit plus (B) the Outstanding Amount of any related Reimbursement Obligations then outstanding.
(g)Agent’s Duties Regarding Letters of Credit; Unconditional Nature of Reimbursement Obligations. In examining documents presented in connection with drawings
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under Letters of Credit and making payments under Letters of Credit against such documents, the Agent shall only be required to use the same standard of care as it uses in connection with examining documents presented in connection with drawings under letters of credit in which it has not sold participations and making payments under such letters of credit. The Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, neither the Agent nor any of the Lenders shall be responsible for, and the Borrower’s obligations in respect of the Letters of Credit shall not be affected in any manner by, (i) the form, validity, sufficiency, accuracy, genuineness or legal effects of any document submitted by any party in connection with the application for and issuance of or any drawing honored under any Letter of Credit even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit, or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telex, telecopy or otherwise, whether or not they be in cipher; (v) errors in interpretation of technical terms; (vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any Letter of Credit, or of the proceeds thereof; (vii) the misapplication by the beneficiary of the proceeds of any drawing under any Letter of Credit; (viii) any adverse change in the relevant exchange rates or in the availability of the relevant Alternative Currency to the Borrower or any Subsidiary or in the relevant currency markets generally; or (ix) any consequences arising from causes beyond the control of the Agent or the Lenders. None of the above shall affect, impair or prevent the vesting of any of the Agent’s or any Lender’s rights or powers hereunder. Any action taken or omitted to be taken by the Agent under or in connection with any Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable judgment), shall not create against the Agent or any Lender any liability to the Borrower or any Lender. In this regard, the obligation of the Borrower to reimburse the Agent for any drawing made under any Letter of Credit, and to repay any Revolving Credit Loan made pursuant to the second sentence of the immediately preceding subsection (e), shall be absolute, unconditional and irrevocable and shall be paid strictly in accordance with the terms of this Agreement and any other applicable Letter of Credit Document under all circumstances whatsoever, including without limitation, the following circumstances: (A) any lack of validity or enforceability of any Letter of Credit Document or any term or provisions therein; (B) any amendment or waiver of or any consent to departure from all or any of the Letter of Credit Documents; (C) the existence of any claim, setoff, defense or other right which the Borrower may have at any time against the Agent, any Lender, any beneficiary of a Letter of Credit or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or in the Letter of Credit Documents or any unrelated transaction; (D) any breach of contract or dispute between the Borrower, the Agent, any Lender or any other Person; (E) any draft, demand, certificate, statement or any other document presented under a Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein or made in connection
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therewith being untrue or inaccurate in any respect whatsoever; (F) any improper use which may be made of any Letter of Credit or any non-application or misapplication by the beneficiary of a Letter of Credit of the proceeds of any drawing under such Letter of Credit; (G) payment by the Agent under any Letter of Credit against presentation of a draft or certificate which does not strictly comply with the terms of such Letter of Credit; and (H) any other act, omission to act, delay or circumstance whatsoever that might, but for the provisions of this Section, constitute a legal or equitable defense to or discharge of the Borrower’s Reimbursement Obligations; provided, however, that nothing in this sentence shall affect any rights or defenses the Borrower may have with respect to any act or omission by the Agent or any Lender in connection with any Letter of Credit, including, without limitation, any drawing thereunder, to the extent such act or omission constitutes gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final, non-appealable judgment. Notwithstanding anything to the contrary contained in this Section or Section 12.9, but not in limitation of the Borrower’s unconditional obligation to reimburse the Agent for any drawing made under a Letter of Credit as provided in this Section and to repay any Revolving Credit Loan made pursuant to the second sentence of the immediately preceding subsection (e), the Borrower shall have no obligation to indemnify the Agent or any Lender in respect of any liability incurred by the Agent or such Lender arising solely out of the gross negligence or willful misconduct of the Agent or such Lender in respect of a Letter of Credit as determined by a court of competent jurisdiction in a final, non-appealable judgment. Except as otherwise provided in this Section, nothing in this Section shall affect any rights the Borrower may have with respect to the gross negligence or willful misconduct of the Agent or any Lender with respect to any Letter of Credit.
(h)Amendments, Etc. The issuance by the Agent of any amendment, supplement or other modification to any Letter of Credit shall be subject to the same conditions applicable under this Agreement to the issuance of new Letters of Credit (including, without limitation, that the request therefor be made through the Agent), and no such amendment, supplement or other modification shall be issued unless either (i) the respective Letter of Credit affected thereby would have complied with such conditions had it originally been issued hereunder in such amended, supplemented or modified form or (ii) the Required Lenders (or all of the Revolving Credit Lenders if required by Section 12.6) shall have consented thereto. In connection with any such amendment, supplement or other modification, the Borrower shall pay the Fees, if any, payable under the last sentence of Section 3.6(b).
(i)Lenders’ Participation in Letters of Credit. Immediately upon the issuance by the Agent of any Letter of Credit each Revolving Credit Lender shall be deemed to have irrevocably and unconditionally purchased and received from the Agent, without recourse or warranty, an undivided interest and participation to the extent of such Revolving Credit Lender’s Revolving Commitment Percentage (if such Letter of Credit is denominated in Dollars) or Alternative Currency Revolving Commitment Percentage (if such Letter of Credit is denominated in any Alternative Currency) of the liability of the Agent with respect to such Letter of Credit, and each applicable Revolving Credit Lender thereby shall absolutely, unconditionally and irrevocably assume, as primary obligor and not as surety, and shall be unconditionally obligated to the Agent to pay and discharge when due, such Revolving Credit Lender’s Revolving Commitment
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Percentage (if such Letter of Credit is denominated in Dollars) or Alternative Currency Revolving Commitment Percentage (if such Letter of Credit is denominated in any Alternative Currency) of the Agent’s liability under such Letter of Credit. In addition, upon the making of each payment by a Revolving Credit Lender to the Agent in respect of any Letter of Credit pursuant to the immediately following subsection (j), such Revolving Credit Lender shall, automatically and without any further action on the part of the Agent or such Revolving Credit Lender, acquire (i) a participation in an amount equal to such payment in the Reimbursement Obligation owing to the Agent by the Borrower in respect of such Letter of Credit and (ii) a participation in a percentage equal to such Revolving Credit Lender’s Revolving Commitment Percentage (if such Reimbursement Obligation is denominated in Dollars) or Alternative Currency Revolving Commitment Percentage (if such Reimbursement Obligation is denominated in any Alternative Currency) in any interest or other amounts payable by the Borrower in respect of such Reimbursement Obligation (other than the Fees payable to the Agent pursuant to the third and last sentences of Section 3.6(b)). Notwithstanding the foregoing, in the event of a default in any Revolving Credit Lender’s obligations to fund under this Agreement exists or any Revolving Credit Lender is at such time a Defaulting Lender, the Agent shall have the right, but not the obligation, to refuse to issue any Letter of Credit unless the Agent has entered into satisfactory arrangements with the Borrower and/or such Defaulting Lender to eliminate the Agent’s risk with respect to such Defaulting Lender
(j)Payment Obligation of Lenders. Each Revolving Credit Lender severally agrees to pay to the Agent on demand in Same Day Funds in Dollars the amount of such Revolving Credit Lender’s Revolving Commitment Percentage (if such Letter of Credit is denominated in Dollars) or Alternative Currency Revolving Commitment Percentage (if such Letter of Credit is denominated in any Alternative Currency) of each drawing paid by the Agent under each Letter of Credit to the extent such amount is not reimbursed by the Borrower pursuant to Section 2.2(d); provided, however, that in respect of any drawing under any Letter of Credit, the maximum amount that any Lender shall be required to fund, whether as a Revolving Credit Loan or as a participation, shall not exceed such Revolving Credit Lender’s Revolving Commitment Percentage (if the applicable Letter of Credit is denominated in Dollars) or Alternative Currency Revolving Commitment Percentage (if the applicable Letter of Credit is denominated in any Alternative Currency) of such drawing. If the notice referenced in the second sentence of Section 2.2(e) is received by a Revolving Credit Lender not later than 11:00 a.m. then such Revolving Credit Lender shall make such payment available to the Agent not later than 2:00 p.m. on the date of demand therefor; otherwise, such payment shall be made available to the Agent not later than 1:00 p.m. on the next succeeding Business Day. Each Revolving Credit Lender’s obligation to make such payments to the Agent under this subsection, and the Agent’s right to receive the same, shall be absolute, irrevocable and unconditional and shall not be affected in any way by any circumstance whatsoever, including without limitation, (i) the failure of any other Revolving Credit Lender to make its payment under this subsection, (ii) the financial condition of the Borrower, (iii) the existence of any Default or Event of Default, including any Event of Default described in Section 10.1(h), Section (i), or Section (j) or (iv) the termination of the Commitments. Each such payment to the Agent shall be made without any offset, abatement, withholding or deduction whatsoever.
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(k)Information to Lenders. The Agent shall periodically deliver to the Revolving Credit Lenders information setting forth the Stated Amount and the Outstanding Amount of all outstanding Letters of Credit. Other than as set forth in this subsection, the Agent shall have no duty to notify the Revolving Credit Lenders regarding the issuance or other matters regarding Letters of Credit issued hereunder. The failure of the Agent to perform its requirements under this subsection shall not relieve any Revolving Credit Lender from its obligations under Section 2.2(j).
Section 2.3.Rates and Payment of Interest on Loans.
(a)Rates. The Borrower promises to pay to the Agent for the account of each Lender interest on the unpaid principal amount of each Loan made by such Lender for the period from and including the date of the making of such Loan to but excluding the date such Loan shall be paid in full, at the following per annum rates:
(i)during such periods as such Loan is a Base Rate Loan, at the Base Rate (as in effect from time to time) plus the Applicable Margin; and
(ii)during such periods as such Loan is a Eurocurrency Loan, at the Eurocurrency Rate for such Loan for the Interest Period therefor plus the Applicable Margin.
Unless the Alternate Rate is applicable pursuant to the terms of Section 2.7, Section 4.2, or Section 4.6, and subject to Section 4.9, all Alternative Currency Loans shall be Eurocurrency Revolving Loans at all times. Notwithstanding the foregoing, during the continuance of an Event of Default, the Borrower shall pay to the Agent for the account of each Lender interest at the Post-Default Rate on the outstanding principal amount of any Loan made by such Lender, on all Reimbursement Obligations and on any other amount payable by the Borrower hereunder or under the Notes held by such Lender to or for the account of such Lender (including without limitation, accrued but unpaid interest to the extent permitted under Applicable Law).
(b)Payment of Interest. Accrued and unpaid interest on each Loan shall be payable on the third day of each calendar month, provided if such day is not a Business Day, interest shall be due on the next succeeding Business Day. Interest payable at the Post-Default Rate shall be payable from time to time on demand. Promptly after the determination of any interest rate provided for herein or any change therein, the Agent shall give notice thereof to the Lenders to which such interest is payable and to the Borrower. All determinations by the Agent of an interest rate hereunder shall be conclusive and binding on the Lenders and the Borrower for all purposes, absent manifest error.
Section 2.4.Number of Interest Periods.
There may be no more than ten (10) different Interest Periods outstanding at the same time for Eurocurrency Revolving Loans.
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Section 2.5.Repayment of Loans.
(a)Intentionally Omitted.
(b)Revolving Credit Loan. The Borrower shall repay the entire outstanding principal amount of, and all accrued but unpaid interest on, each Revolving Credit Loan on the Revolving Credit Termination Date in the Currency in which such Revolving Credit Loan is denominated.
Section 2.6.Prepayments.
(a)Optional. Subject to Section 4.4, the Borrower may elect to prepay Revolving Credit Loans, in whole or in part, at any time, in each case without premium or penalty. The Borrower shall give the Agent at least one Business Day’s (or, in the case of Loans denominated in an Alternative Currency, three (3) Business Days’) prior written notice of the prepayment of any Loan.
(b)Mandatory. Except as otherwise provided in Section 10.4:
(i)If at any time (i) the aggregate Outstanding Amount of the Revolving Credit Exposure of all of the Revolving Credit Lenders exceeds the aggregate amount of the Revolving Credit Commitments in effect at such time, or (ii) the sum of (A) the aggregate Outstanding Amount of the Revolving Credit Exposure, plus (B) the aggregate amount of all other Unsecured Indebtedness of the Borrower and its Subsidiaries, causes a violation of any of the covenants set forth in Section 9.1(f) and Section 9.1(g), in each case, other than as a result of the aggregate Outstanding Amount of Revolving Credit Exposure denominated in any Alternative Currency exceeding the Alternative Currency Sublimit, then the Borrower shall promptly (and in any event, within 2 Business Days after notice thereof from the Agent) pay to the Agent for the accounts of the Revolving Credit Lenders the amount of such excess.
(ii)If at any time the aggregate Outstanding Amount of Revolving Credit Exposure with respect to Loans and Letters of Credit denominated in an Alternative Currency exceeds 103% of the Alternative Currency Sublimit, the Borrower shall promptly (and in any event, within 2 Business Days after notice thereof from the Agent) pay to the Agent for the accounts of the Revolving Credit Lenders an aggregate amount equal to the amount by which the aggregate Outstanding Amount of Revolving Credit Loans and Letters of Credit denominated in an Alternative Currency exceeds the Alternative Currency Sublimit.
(iii)Any payment required to be made under Section 2.6(b)(i) or Section 2.6(b)(ii) shall be applied, first, to pay all amounts of principal outstanding on the Revolving Credit Loans and any Reimbursement Obligations pro rata in accordance with Section 3.2, and then, if any Letters of Credit are outstanding at such time, the remainder, if any, shall be deposited into the Collateral Account for application to any LC Exposure pursuant to Section 2.2(b). If the Borrower is required to pay any outstanding
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Eurocurrency Revolving Loans by reason of this Section prior to the end of the applicable Interest Period therefor, the Borrower shall pay all amounts due under Section 4.4.
(iv)For purposes of determining compliance with Section 2.6(b)(i) and Section 2.6(b)(ii) and the covenants set forth in Section 9.1, the Outstanding Amount of the Revolving Credit Loans and the Letters of Credit Liabilities which are denominated in Alternative Currencies shall be re-determined on the Revaluation Date occurring on the last calendar day of each calendar month prior to the Revolving Credit Maturity Date based on the Dollar Equivalent of the aggregate outstanding principal amount of such Revolving Credit Loans and Letter of Credit Liabilities (determined as of such day prior to 11:00 a.m. Cleveland, Ohio time). If, as a result of such re-determination, a prepayment of such Revolving Credit Loans shall be required under Section 2.6(b)(i) and Section 2.6(b)(ii), the Agent shall promptly notify the Lenders and the Borrower thereof and Borrower shall within two (2) Business Days of receiving such notice from Agent make a prepayment of such Revolving Credit Loans to the extent required under Section 2.6(b)(i) and Section 2.6(b)(ii).
Section 2.7.Continuation.
So long as no Event of Default shall exist, the Borrower may on any Business Day, with respect to any Eurocurrency Loan, elect to maintain such Eurocurrency Loan or any portion thereof as a Eurocurrency Loan by selecting a new Interest Period for such Loan. Each new Interest Period selected under this Section shall commence on the last day of the immediately preceding Interest Period. Each selection of a new Interest Period shall be made by the Borrower giving to the Agent a Notice of Continuation not later than 11:00 a.m. on the third Business Day prior to the date of any such Continuation. Such notice by the Borrower of a Continuation shall be by telephone or telecopy, confirmed immediately in writing if by telephone, in the form of a Notice of Continuation, specifying (a) the proposed date of such Continuation, (b) the Loans and portions thereof subject to such Continuation and (c) the duration of the selected Interest Period, all of which shall be specified in such manner as is necessary to comply with all limitations on Loans outstanding hereunder. Each Notice of Continuation shall be irrevocable by and binding on the Borrower once given. Promptly after receipt of a Notice of Continuation, the Agent shall notify each Lender by telecopy, or other similar form of transmission, of the proposed Continuation. If the Borrower shall fail to select in a timely manner a new Interest Period for any Eurocurrency Loan in accordance with this Section, or if an Event of Default shall exist, such Loan will automatically, on the last day of the current Interest Period therefor, Convert into a Base Rate Loan (except for a Eurocurrency Loan denominated in an Alternative Currency which, during the continuance of an Event of Default, shall be converted to an Alternate Rate Loan) notwithstanding the first sentence of Section 2.8 or the Borrower’s failure to comply with any of the terms of such Section. Notwithstanding anything in this Agreement to the contrary, if a Default exists at the time of a Continuation of a Loan, the Interest Period for such continued Loan shall not exceed one month.
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Section 2.8.Conversion.
The Borrower may on any Business Day, upon the Borrower’s giving of a Notice of Conversion to the Agent, Convert all or a portion of a Loan of one Type into a Loan of another Type; provided, however, a Base Rate Loan may not be Converted to a Eurocurrency Loan if an Event of Default shall exist and no Alternative Currency Loan may be converted to a Base Rate Loan. Any Conversion of a Eurocurrency Loan into a Base Rate Loan shall be made on, and only on, the last day of an Interest Period for such Loan and, upon Conversion of a Base Rate Loan into a Eurocurrency Loan, the Borrower shall pay accrued interest to the date of Conversion on the principal amount so Converted (with such interest being payable at the time provided in Section 2.3(b)). Each such Notice of Conversion shall be given not later than 11:00 a.m. on the Business Day prior to the date of any proposed Conversion into Base Rate Loans and on the third Business Day prior to the date of any proposed Conversion into Eurocurrency Loans. Promptly after receipt of a Notice of Conversion, the Agent shall notify each Lender by telecopy, or other similar form of transmission, of the proposed Conversion. Subject to the restrictions specified above, each Notice of Conversion shall be by telephone (confirmed immediately in writing) or telecopy in the form of a Notice of Conversion specifying (a) the requested date of such Conversion, (b) the Type of Loan to be Converted, (c) the portion of such Type of Loan to be Converted, (d) the Type of Loan such Loan is to be Converted into and (e) if such Conversion is into a Eurocurrency Loan, the requested duration of the Interest Period of such Loan. Each Notice of Conversion shall be irrevocable by and binding on the Borrower once given. Notwithstanding anything in this Agreement to the contrary, if a Default exists at the time of a Conversion of a Base Rate Loan to a Eurocurrency Loan, the Interest Period for such Loan shall not exceed one month.
Section 2.9.Notes.
(a)Notes. The Revolving Credit Loans made by each Revolving Credit Lender shall, in addition to this Agreement, if requested by such Revolving Credit Lender, also be evidenced by a promissory note of the Borrower substantially in the form of Exhibit E (each a “Revolving Credit Note” or “Note”), payable to the order of such Lender in a principal amount equal to the amount of its Revolving Credit Commitment as originally in effect and otherwise duly completed.
(b)Records. The date, amount, Currency, interest rate, Type and duration of Interest Periods (if applicable) of each Loan made by each Lender to the Borrower, and each payment made on account of the principal thereof, shall be recorded by such Lender on its books and such entries shall be binding on the Borrower, absent manifest error; provided, however, that the failure of a Lender to make any such record shall not affect the obligations of the Borrower under any of the Loan Documents.
(c)Lost, Stolen, Destroyed or Mutilated Notes. Upon receipt by the Borrower of (i) written notice from a Lender that a Note of such Lender has been lost, stolen, destroyed or mutilated, and (ii) (A) in the case of loss, theft or destruction, an unsecured agreement of indemnity from such Lender in form reasonably satisfactory to the Borrower, or (B) in the case
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of mutilation, upon surrender and cancellation of such Note, the Borrower shall at its own expense execute and deliver to such Lender a new Note dated the date of such lost, stolen, destroyed or mutilated Note.
Section 2.10.Voluntary Reductions of the Commitment.
The Borrower shall have the right to terminate or reduce the aggregate unused amount of the Revolving Credit Commitments (for which purpose use of the Revolving Credit Commitments shall be deemed to include the aggregate amount of LC Exposure) at any time and from time to time without penalty or premium upon not less than 5 Business Days prior written notice to the Agent of each such termination or reduction, which notice shall specify the effective date thereof and the amount of any such reduction and shall be irrevocable once given and effective only upon receipt by the Agent; provided, however, that if the Borrower seeks to reduce the aggregate amount of the Revolving Credit Commitments below $100,000,000.00, then the Revolving Credit Commitments shall all automatically and permanently be reduced to zero. The Borrower shall not terminate or reduce any portion of the Revolving Credit Commitments if, after giving effect to such reduction or termination, (w) the Outstanding Amount of any Revolving Credit Lender’s Revolving Credit Exposure would exceed such Revolving Credit Lender’s Revolving Credit Commitment, (x) the Outstanding Amount of any Revolving Credit Lender’s Revolving Credit Exposure with respect to Loans and Letters of Credit denominated in Dollars would exceed such Revolving Credit Lender’s Dollar Revolving Credit Commitment, (y) the Outstanding Amount of any Revolving Credit Lender’s Revolving Credit Exposure with respect to Loans and Letters of Credit denominated in any Alternative Currency would exceed such Revolving Credit Lender’s Alternative Currency Revolving Credit Commitment, or (z) the aggregate Outstanding Amount of the Revolving Credit Exposure with respect to Loans and Letters of Credit denominated in Alternative Currencies would exceed the Alternative Currency Sublimit. The Agent will promptly transmit such notice to each Revolving Credit Lender. The Agent shall further determine with respect to the Revolving Credit Lenders, as applicable, as of the effective date of any such reduction of the Revolving Credit Commitments: (i) the applicable Dollar Revolving Credit Commitments, Alternative Currency Revolving Credit Commitments, and Revolving Credit Percentages and (ii) the applicable Adjusted Shared Event Commitments and Shared Event Percentages. The Agent shall promptly notify the Borrower and the Revolving Credit Lenders of the final allocation of such reduction of such applicable Revolving Credit Commitments and Revolving Credit Percentages and applicable Adjusted Shared Event Commitments and Shared Event Percentages. The Revolving Credit Commitments, once terminated or reduced may not be increased or reinstated.
Section 2.11.Expiration or Maturity Date of Letters of Credit Past Termination Date.
If on the date the Revolving Credit Commitments are terminated or reduced to zero (whether voluntarily, by reason of the occurrence of an Event of Default or otherwise), there are any Letters of Credit outstanding hereunder, the Borrower shall, on such date, pay to the Agent an amount of money equal to the Outstanding Amount of such Letter(s) of Credit for deposit into the Collateral Account. The Agent may, at any time and from time to time after the initial deposit
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of cash collateral, request that additional cash collateral be provided in order to protect against the results of exchange rate fluctuations.
Section 2.12.Amount Limitations.
Notwithstanding any other term of this Agreement or any other Loan Document, no Lender shall be required to make a Loan, the Agent shall not be required to issue a Letter of Credit and no reduction of the Commitments pursuant to Section 2.10 shall take effect, if immediately after the making of such Loan, the issuance of such Letter of Credit or such reduction in the Commitments (i) the aggregate Outstanding Amount of all outstanding Loans, together with the aggregate Outstanding Amount of all LC Exposure, would exceed the aggregate amount of the Commitments at such time or (ii) the aggregate Outstanding Amount of all outstanding Loans denominated in an Alternative Currency, together with the aggregate Outstanding Amount of all LC Exposure with respect to Letters of Credit denominated in an Alternative Currency, would exceed the Alternative Currency Sublimit at such time.
Section 2.13.[Reserved].
Section 2.14.The Increased Loan Amount.
(a)Request for Increase. At any time prior to October 6, 2025 (or, if an Extension Option has been exercised in accordance with Section 2.16, April 6, 2026 or October 6, 2026, as applicable), the Borrower shall have the option to increase the Revolving Credit Facility Amount by a maximum aggregate amount of up to $1,000,000,000.00 (the “Increase Option”) to a total Revolving Credit Facility Amount of up to $2,000,000,000.00. The Borrower may exercise the Increase Option at any time and from time to time prior to the date set forth above by providing notice to the Agent (which shall promptly notify the Lenders); provided, however, (a) that at the time of the exercise of such option, there is no Default or Event of Default which shall have occurred and be continuing; (b) in no event shall the existence of this Increase Option be deemed a commitment on the part of the Lenders until such time as such Lender in writing increases its commitment or a new Lender issues a written commitment for any such amounts in excess of the then-existing committed Revolving Credit Facility Amount, and then in such event, such increase to the Revolving Credit Facility Amount shall only be to the extent of the increased commitment or new commitment amounts; (c) at the time of sending such notice, the Borrower (in consultation with the Agent) shall specify a reasonable time period within which each Lender is requested to respond as to whether such Lender agrees to increase the amount of its Commitment in accordance with Section 2.14(b); (d) any such increase shall be in a minimum aggregate amount of $5,000,000.00 with minimum aggregate increments of $5,000,000.00 above that amount, and a maximum aggregate increase of $1,000,000,000.00; and (e) any such increase shall be integrated into this Agreement and shall be subject to the same terms and conditions as this Agreement, except as otherwise provided in Section 2.14(e)(vi).
(b)Lender Elections to Increase. Each Lender shall notify the Agent within such time period specified in said notice, whether or not it agrees, in its sole discretion, to issue or increase its Revolving Credit Commitment and, if so, by what amount (which need not be its pro
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rata share thereof). Any Lender not responding within such time period shall be deemed to have declined to issue or increase its Revolving Credit Commitment.
(c)Notification by Agent; Additional Lenders. The Agent shall notify the Borrower and each Lender of the Lenders’ responses to each request made hereunder. To achieve the full amount of a requested increase in the Facility Amount and subject to the approval of the Agent and the Agent in its capacity as issuer of Letters of Credit hereunder (which approvals shall not be unreasonably withheld), the Borrower may also invite additional Eligible Assignees to become Lenders pursuant to a joinder agreement in form and substance reasonably satisfactory to the Agent and its counsel.
(d)Effective Date and Allocations. If the aggregate Commitments (including due to new Commitments by additional Lenders) are increased in accordance with this Section 2.14, the Agent and the Borrower shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase. The Agent shall promptly notify the Borrower and the Lenders (including any additional Lenders) of the final allocation of such increase and the Increase Effective Date.
(e)Conditions to Effectiveness of Increase. Any increase in the Facility Amount pursuant to this Section 2.14 shall be subject to the following conditions:
(i)The Borrower shall have paid to (A) the Agent, such fees as shall be due to Agent at such time under the Fee Letter, and (B) to each Lender, such fees, if any, as shall have been agreed upon by the Borrower and the Agent.
(ii)As of the Increase Effective Date, no Default or Event of Default then exists and is continuing or would result from such increase in the Facility Amount (including on a pro forma basis relative to financial covenant compliance).
(iii)The Borrower shall have delivered to the Agent a certificate dated as of the Increase Effective Date (in sufficient copies for each Lender) (A) certifying and attaching the resolutions adopted by the Borrower approving or consenting to such increase (which resolutions may be contained in the resolutions adopted by the Borrower in connection with the initial Loan made under this Agreement), and (B) certifying that, before and after giving effect to such increase, (1) the representations and warranties of the Loan Parties in this Agreement and in each other Loan Document are true and correct on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case, to the knowledge of the Borrower, they are true and correct as of such earlier date, and except to the extent of changes resulting from transactions contemplated and permitted by this Agreement and changes occurring in the ordinary course of business (in each case to the extent not constituting a Default or Event of Default), (2) no Default or Event of Default exists and is continuing or would result from such increase in the Facility Amount (including on a pro forma basis relative to financial covenant compliance), and (3) the incurrence of Indebtedness in an aggregate principal amount equal to the full Revolving Credit Facility
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Amount after giving effect to all Commitment increases and new Commitments would not result in a breach of, or a default under, any agreement to which any Loan Party is a party.
(iv)The Borrower shall prepay any Revolving Credit Loans outstanding on the Increase Effective Date in the applicable Currency (and pay any additional amounts required pursuant to Section 4.4) to the extent necessary to keep the outstanding Revolving Credit Loans ratable with any revised Revolving Credit Commitment allocations arising from any nonratable increase in the Revolving Credit Commitments under this Section. Notwithstanding any provisions of this Agreement to the contrary, the Borrower may borrow from the Lenders providing such increase in the Revolving Credit Commitments (on a non pro rata basis with Lenders not providing such increase) in order to fund such prepayment.
(v)The Borrower will execute and deliver to each applicable Lender that requests one, a new Note in the appropriate stated amount, and will execute and deliver or otherwise provide to the Agent and the Lenders such other documents and instruments consistent with the terms of this Agreement, as the Agent or Lenders reasonably may require.
(vi)Any such increase shall be integrated into the Facility as (A) an increase to the Revolving Credit Facility, (B) a new revolving tranche having the same terms (excluding pricing, commitment fee amounts and the Revolving Credit Termination Date) as the Revolving Credit Facility, or (C) any combination thereof satisfactory to Borrower, Agent and the Lenders providing the new commitments.
(f)The provisions of this Section 2.14 shall not constitute a “commitment” to lend, and the Commitments of the Lenders shall not be increased except in accordance with, and until satisfaction of the provisions of this Section 2.14 and actual increase of the Commitments as provided herein.
Section 2.15.[Reserved].
Section 2.16.Extension of Revolving Credit Termination Date.
The Borrower shall have the option (each an “Extension Option”) to extend the Revolving Credit Termination Date to April 6, 2026 and then October 6, 2026. Subject to the conditions set forth below, the Borrower may exercise an Extension Option by delivering a written notice to Agent (who shall provide such notice, promptly upon receipt, to each of the Revolving Credit Lenders) not more than ninety (90) days and not less than thirty (30) days prior to the then applicable Revolving Credit Termination Date (a “Notice to Extend”), stating that the Borrower has elected to extend the original Revolving Credit Termination Date for six (6) months. The Borrower’s delivery of the Notice to Extend shall be irrevocable and the Borrower’s right to an Extension Option shall be subject to the following terms and conditions for each extension: (i) there shall exist no Default of Event of Default on both the date the
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Borrower delivers the Notice to Extend to Agent and on the then applicable Revolving Credit Termination Date, (ii) the Borrower shall have paid to Agent for the account of each Revolving Credit Lender (other than a Defaulting Lender), not less than five days before the then applicable Revolving Credit Termination Date, an extension fee equal to 0.0625% of such Revolving Credit Lender’s Commitment Amount (a separate fee shall be due for each extension), and (iii) without limiting the conditions set forth in the foregoing clause (i), the Borrower shall have delivered to the Agent a Compliance Certificate, dated as of the date of the Notice to Extend, which includes detailed calculations establishing that the Borrower and its Subsidiaries were in compliance with the financial covenants contained in Section 9.1 as of the date of the most recently ended calendar quarter for which the Borrower is required to report financial results.
ARTICLE III.- PAYMENTS, FEES AND OTHER GENERAL PROVISIONS
Section 3.1.Payments.
Except to the extent otherwise provided herein, all payments of principal, interest and other amounts to be made by the Borrower under this Agreement or any other Loan Document shall be made in Same Day Funds in the applicable Currency, without deduction, set-off or counterclaim, to the Agent at its Principal Office, not later than 2:00 p.m. on the date on which such payment shall become due or, with respect to any payment required to be made in an Alternative Currency, the Applicable Time (each such payment made after such time on such due date to be deemed to have been made on the next succeeding Business Day). If, for any reason, the Borrower is prohibited by any Applicable Law from making any required payment hereunder in an Alternative Currency, the Borrower shall make such payment in Dollars in the Dollar Equivalent of the Alternative Currency payment amount. All payments of principal of and interest on any Loan shall be payable in the same Currency as the Loan is denominated other than as provided in the preceding sentence, and all other fees and other amounts payable under this Agreement shall be payable in Dollars. Subject to Section 10.4, the Borrower may, at the time of making each payment under this Agreement or any Note, specify to the Agent the amounts payable by the Borrower hereunder to which such payment is to be applied. Each payment received by the Agent for the account of a Lender under this Agreement or any Note shall be paid to such Lender at the applicable Lending Office of such Lender no later than 5:00 p.m. on the date of receipt. With respect to the payment of any amount denominated in the Alternative Currency, the Agent shall not be liable to the Borrower or any Revolving Credit Lender in any way whatsoever for any delay, or the consequences of any delay, in the crediting to any account of any amount required by this Agreement to be paid by the Agent if the Agent shall have taken all relevant steps to achieve, on the date required by this Agreement, the payment of such amount in Same Day Funds in the applicable Alternative Currency to the account with Agent designated by Borrower or the applicable Lender. For purposes of this clause, “all relevant steps” means all such steps as may be prescribed from time to time by the regulations or operating procedures of such clearing or settlement system as the Agent may from time to time determine for the purpose of clearing or settling payments of the applicable Alternative Currency. If the Agent fails to pay such amount to a Lender as provided in the previous sentence, the Agent shall pay interest on such amount until paid at a rate per annum
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equal to the Federal Funds Rate from time to time in effect. If the due date of any payment under this Agreement or any other Loan Document would otherwise fall on a day which is not a Business Day such date shall be extended to the next succeeding Business Day and interest shall be payable for the period of such extension.
The obligation of the Borrower to pay any amount pursuant to this Agreement or any other Loan Document in Dollars or any particular Alternative Currency (the “Currency of Payment”) shall, notwithstanding any payment in any other currency (including pursuant to the judgment of a court), be discharged only to the extent that the Lender receiving such payment may, in accordance with its normal banking procedures on the Business Day following receipt of any such payment, purchase with the sum paid in such other currency (after payment of any premium and costs of exchange) the Currency of Payment on the Business Day on which such Lender receives such payment. If the amount of the Currency of Payment that is purchased by any Lender is less than the amount owing to such Lender in the applicable currency pursuant to this Agreement or any other Loan Document, the Borrower agrees, as a separate and independent obligation and notwithstanding any of the other terms contained in this Agreement or any other Loan Document, to pay such additional amount so that the applicable Lender receives payment in full in the applicable Currency of Payment all of the relevant monetary Obligations in accordance with the terms of this clause and the other terms of this Agreement. If the amount of the Currency of Payment that is purchased by any Lender exceeds the sum due in the applicable currency to such Lender, such Lender shall promptly pay the excess over to the Borrower in the currency and to the extent actually received by such Lender.
Section 3.2.Pro Rata Treatment.
Except to the extent otherwise provided herein: (a) each borrowing from the applicable Lenders under Section 2.1(b) and Section 2.2(e) shall be made from the applicable Lenders in accordance with their applicable Revolving Credit Commitments and each payment of the Fees under Section 3.6(a) and the first sentence of Section 3.6(b) shall be made for the account of the Revolving Credit Lenders in accordance with their applicable Revolving Credit Commitments, and each termination or reduction of the amount of the Revolving Credit Commitments under Section 2.10 shall be applied to the respective Revolving Credit Commitments in accordance with the amount of their respective applicable Revolving Credit Commitments; (b) each payment of principal of Revolving Credit Loans shall be made for the account of the Revolving Credit Lenders pro rata in accordance with the respective unpaid principal amounts of the applicable Loans held by such Lenders, provided that if immediately prior to giving effect to any such payment in respect of any Loans the outstanding principal amount of the Revolving Credit Loans shall not be held by the applicable Lenders pro rata in accordance with their respective Commitments in effect at the time such Loans were made, then such payment shall be applied to the Revolving Credit Loans in such manner as shall result, as nearly as is practicable, in the outstanding principal amount of the Loans being held by the applicable Lenders pro rata in accordance with their respective applicable Commitments; (c) each payment of interest on the Loans shall be made for the account of the Lenders pro rata in accordance with the amounts of interest on such Loans then due and payable to the respective Lenders; (d) the making,
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Conversion and Continuation of Loans of a particular Type (other than Conversions provided for by Section 4.6) shall be made pro rata among the Lenders according to the amounts of their respective Commitments (in the case of making of Loans) or their respective Loans (in the case of Conversions and Continuations of Loans) and the then current Interest Period for each Lender’s portion of each Loan of such Type shall be coterminous; and (e) the Revolving Credit Lenders’ participation in, and payment obligations in respect of, Letters of Credit under Section 2.2, shall be pro rata in accordance with their respective Revolving Credit Commitments.
Section 3.3.Sharing of Payments, Etc.
If a Lender shall obtain payment of any principal of, or interest on, any Loan made by it to the Borrower under this Agreement, or shall obtain payment on any other Obligation owing by any Loan Party through the exercise of any right of set-off, banker’s lien or counterclaim or similar right or otherwise or through voluntary prepayments directly to a Lender or other payments made by any Loan Party to a Lender not in accordance with the terms of this Agreement and such payment should be distributed to the Lenders pro rata in accordance with Section 3.2 or Section 10.4, as applicable, such Lender shall promptly purchase from the other Lenders participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans made by the other Lenders or other Obligations owed to such other Lenders in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such payment (net of any reasonable expenses which may be incurred by such Lender in obtaining or preserving such benefit) pro rata in accordance with Section 3.2 or Section 10.4, as applicable. To such end, all the Lenders shall make appropriate adjustments among themselves (by the resale of participations sold or otherwise) if such payment is rescinded or must otherwise be restored. The Borrower (for itself and each other Loan Party) agrees that any Lender so purchasing a participation (or direct interest) in the Loans or other Obligations owed to such other Lenders may exercise all rights of set-off, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans in the amount of such participation. Nothing contained herein shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other indebtedness or obligation of the Borrower.
Section 3.4.Several Obligations.
No Lender shall be responsible for the failure of any other Lender to make a Loan or to perform any other obligation to be made or performed by such other Lender hereunder, and the failure of any Lender to make a Loan or to perform any other obligation to be made or performed by it hereunder shall not relieve the obligation of any other Lender to make any Loan or to perform any other obligation to be made or performed by such other Lender.
Section 3.5.Minimum Amounts.
(a)Borrowings and Conversions. Except as otherwise provided in Section 2.2(e), each borrowing of Base Rate Loans shall be in an aggregate minimum amount of $1,000,000.00
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and integral multiples of $100,000.00 in excess thereof. Each borrowing of, Conversion to and Continuation of Eurocurrency Loans shall be in an aggregate minimum amount of $2,000,000.00 and integral multiples of $100,000.00 (or, in the case of Eurocurrency Loans that are denominated in an Alternative Currency, an amount for which the Dollar Equivalent is not less than $2,000,000 or multiples of $100,000, respectively) in excess of that amount; provided that a Eurocurrency Loan denominated in an Alternative Currency may be continued for the same Interest Period or Converted to a different Interest Period in accordance with Section 2.8 in an amount equal to the same number of units of the relevant Currency for which such Loan was initially made regardless of whether the principal amount of such Loan as of such date of continuation or conversion is less than $2,000,000.00.
(b)Prepayments. Each voluntary prepayment of Loans shall be in an aggregate minimum amount of $1,000,000.00 and integral multiples of $100,000.00 (or, in the case of Eurocurrency Loans that are denominated in an Alternative Currency, an amount for which the Dollar Equivalent is not less than $1,000,000 or multiples of $100,000, respectively) in excess thereof (or, if less, the aggregate principal amount of Loans then outstanding).
(c)Reductions of Commitments. Each reduction of the Revolving Credit Commitments under Section 2.10 shall be in an aggregate minimum amount of $10,000,000.00 and integral multiples of $5,000,000.00 in excess thereof.
(d)Letters of Credit. The initial Dollar Equivalent of the Stated Amount of each Letter of Credit shall be at least $100,000.00, or such lesser amount as shall be acceptable to the Agent in its sole discretion.
Section 3.6.Fees.
(a)Revolving Credit Facility Fee. During the period from the Effective Date to but excluding the Revolving Credit Termination Date, the Borrower agrees to pay to the Agent for the pro rata account of the Revolving Credit Lenders (in accordance with their respective Revolving Commitment Percentages) a facility fee in Dollars with respect to the amount of the Revolving Credit Facility Amount, calculated by multiplying the Revolving Credit Facility Amount by the applicable Facility Fee rate as provided for in the definition of “Applicable Margin” set out in Section 1.1. Such fee shall be payable in arrears the last day of March, June, September and December of each year (beginning December 31, 2021) and shall be pro-rated based on the number of days in the applicable period over an assumed year of 360 days. Any such accrued and unpaid fee shall also be payable on the Revolving Credit Termination Date or any earlier date of termination of the Revolving Credit Commitments or reduction of the Revolving Credit Commitments to zero.
(b)Letter of Credit Fees. The Borrower agrees to pay to the Agent for the account of each Revolving Credit Lender a letter of credit fee in Dollars at a rate per annum equal to the Applicable Margin for Eurocurrency Revolving Loans times the daily average Outstanding Amount of each Letter of Credit for the period from and including the date of issuance of such Letter of Credit (x) through and including the date such Letter of Credit expires or is terminated
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or (y) to but excluding the date such Letter of Credit is drawn in full and is not subject to reinstatement, as the case may be. The fees provided for in the immediately preceding sentence shall be nonrefundable and payable in arrears on (i) the last day of March, June, September and December in each year, with the first such payment being due on December 31, 2021, (ii) the Revolving Credit Termination Date, (iii) the date the Revolving Credit Commitments are terminated or reduced to zero and (iv) thereafter from time to time on demand of the Agent. In addition, the Borrower shall pay to the Agent for its own account and not the account of any Revolving Credit Lender, an issuance fee in Dollars in respect of each Letter of Credit equal to the greater of (i) $1,000.00 or (ii) one eighth of one percent (0.125%) per annum on the daily average Outstanding Amount of such Letter of Credit (A) for the period from and including the date of issuance of such Letter of Credit through and including the expiration date of such Letter of Credit and (B) if the expiration date of any Letter of Credit is extended (whether as a result of the operation of an automatic extension clause or otherwise), for the period from but excluding the previous expiration date to and including the extended expiration date. The fees provided for in the immediately preceding sentence shall be nonrefundable and payable upon issuance (or in the case of an extension of the expiration date, on the previous expiration date). The Borrower shall pay directly to the Agent from time to time on demand all commissions, charges, costs and expenses in the amounts customarily charged by the Agent from time to time in like circumstances with respect to the issuance of each Letter of Credit, drawings, amendments and other transactions relating thereto.
(c)Administrative and Other Fees. The Borrower agrees to pay the administrative and other fees of the Agent as may be agreed to by the Borrower and the Agent from time to time.
Section 3.7.Computations.
(a)Unless otherwise expressly set forth herein, all accrued interest on any Loan, any Fees or any other Obligations due hereunder shall be computed on the basis of a year of 360 days and the actual number of days elapsed, or, in the case of interest in respect of Revolving Credit Loans denominated in Alternative Currencies as to which market practice differs from the foregoing, in accordance with such market practice.
(b)For the purposes of this Agreement and the Interest Act (Canada) and disclosure thereunder, whenever any interest or any fee to be paid hereunder or in connection herewith is to be calculated on the basis of a 360-day year or any other period of time that is less than a calendar year, the yearly rate of interest to which the rate used in such calculation is equivalent is the rate so used multiplied by the actual number of days in the calendar year in which the same is to be ascertained and divided by three hundred and sixty (360) or the number of days in such period, as applicable.
Section 3.8.Usury.
In no event shall the amount of interest due or payable on the Loans or other Obligations exceed the maximum rate of interest allowed by Applicable Law and, if any such payment is
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paid by the Borrower or received by any Lender, then such excess sum shall be credited as a payment of principal, unless the Borrower shall notify the respective Lender in writing that the Borrower elects to have such excess sum returned to them forthwith. It is the express intent of the parties hereto that the Borrower not pay and the Lenders not receive, directly or indirectly, in any manner whatsoever, interest in excess of that which may be lawfully paid by the Borrower under Applicable Law.
Section 3.9.Agreement Regarding Interest and Charges.
The parties hereto hereby agree and stipulate that the only charge imposed upon the Borrower for the use of money in connection with this Agreement is and shall be the interest specifically described in Section 2.3, except as otherwise may be the case under Section 2.14(e)(vi). Notwithstanding the foregoing, the parties hereto further agree and stipulate that all agency fees, syndication fees, facility fees, closing fees, letter of credit fees, underwriting fees, default charges, late charges, funding or “breakage” charges, increased cost charges, attorneys’ fees and reimbursement for costs and expenses paid by the Agent or any Lender to third parties or for damages incurred by the Agent or any Lender, in each case in connection with the transactions contemplated by this Agreement and the other Loan Documents, are charges made to compensate the Agent or any such Lender for underwriting or administrative services and costs or losses performed or incurred, and to be performed or incurred, by the Agent and the Lenders in connection with this Agreement and shall under no circumstances be deemed to be charges for the use of money. All charges other than charges for the use of money shall be fully earned and nonrefundable when due.
Section 3.10.Statements of Account.
The Agent will account to the Borrower monthly with a statement of Loans (including the Currency in which they are denominated), Letters of Credit (including the Currency in which they are denominated), accrued interest and Fees, charges and payments made pursuant to this Agreement and the other Loan Documents, and such account rendered by the Agent shall be deemed conclusive upon the Borrower absent manifest error unless the Borrower provides written notice to the Agent, within 90 days after receipt of such statement, specifying in reasonable detail those portions of such statement as to which the Borrower objects and the grounds for such objection. The failure of the Agent to deliver such a statement of accounts shall not relieve or discharge the Borrower from any of its obligations hereunder.
Section 3.11.Defaulting Lenders.
(a)Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then the Agent shall give prompt notice thereof to the Lenders, and until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by Applicable Law:
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(i)Waivers and Amendments. That Defaulting Lender's right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 12.6(f).
(ii)Reallocation of Payments. Any payment of principal, interest, fees or other amounts received by the Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article X or otherwise, and including any amounts made available to the Agent by that Defaulting Lender pursuant to Section 12.3), shall be applied at such time or times as may be determined by the Agent as follows: first, to the payment of any amounts owing by that Defaulting Lender to the Agent hereunder (including, without limitation, in respect of Letter of Credit Liabilities and in the case of a payment made by such Defaulting Lender that is denominated in an Alternative Currency, the cost to the Agent of funding such payment (as determined by the Agent)); second, if so determined by the Agent, to be held as cash collateral for any existing funding obligations of such Defaulting Lender with respect to any participation in any Letter of Credit that have not been re-allocated to another Lender pursuant to Section 3.11(a)(iv); third, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Agent, unless funded by another Lender; fourth, if so determined by the Agent and the Borrower (so long as no Default or Event of Default exists), to be held in a non-interest bearing deposit account and released in order to (x) satisfy obligations of that Defaulting Lender to fund Loans or participations under this Agreement and (y) be held as cash collateral for any future funding obligations (if any) of that Defaulting Lender of any participation in any Letter of Credit; fifth, to the payment of any amounts owing to the Agent or the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against that Defaulting Lender as a result of that Defaulting Lender's breach of its obligations under this Agreement; sixth, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against that Defaulting Lender as a result of that Defaulting Lender's breach of its obligations under this Agreement; and seventh, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x)  such payment is a payment of the principal amount of any Loans (or participations, if applicable, under Section 2.2(i)) in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made at a time when the conditions set forth in Section 5.2. were satisfied or waived (or were Loans made or participations acquired pursuant to Section 2.2(i)), such payment shall be applied solely to pay the Loans (or participations) of all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letter of Credit Obligations are held by the Lenders pro rata in accordance with the Commitments without giving effect to subsection (a)(iv) below. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral
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pursuant to this Section 3.11(a)(ii) shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.
(iii)Certain Fees. During any period that a Revolving Credit Lender is a Defaulting Lender, such Defaulting Lender’s Revolving Credit Commitment and outstanding Revolving Credit Loans shall be excluded for purposes of calculating any Fees payable to the Lenders under Section 3.6(a), Section 3.6(b), and Section 3.6(c) (provided, as to Section 3.6(c), such Defaulting Lender shall be paid a pro rata (based on the remaining time to the extended Revolving Credit Termination Date) amount of extension fee at such time as it ceases to be a Defaulting Lender), and during such period the Borrower shall not be required to pay, and such Defaulting Lender shall not be entitled to receive, any such Fees otherwise payable to such Defaulting Lender under such Sections, provided the Borrower shall be required to pay the pro rata amount of such fees to the Revolving Credit Lenders assuming the participation exposure with respect to any Letters of Credit or related to any funding made by any Lender covering such Defaulting Lender’s share of any Loan.
(iv)Reallocation of Applicable Percentages to Reduce Fronting Exposure. During any period in which there is a Revolving Credit Lender which is a Defaulting Lender, for purposes of computing the amount of the obligation of each Revolving Credit Lender which is not a Defaulting Lender to acquire, refinance or fund participations in Letters of Credit pursuant to Section 2.2, the Revolving Commitment Percentage of each Revolving Credit Lender which is not a Defaulting Lender shall be computed without giving effect to the Revolving Credit Commitment of that Defaulting Lender; provided, that, each such reallocation shall be given effect only if (i) the conditions set forth in Section 5.2 are satisfied at the time of such reallocation (and, unless the Borrower shall have otherwise notified the Agent at such time, the Borrower shall be deemed to have represented and warranted that such conditions are satisfied at such time) and (ii) such reallocation would not cause the aggregate principal amount of any Revolving Credit Lender which is not a Defaulting Lender’s outstanding Revolving Credit Loans and participation in Letter of Credit Liabilities at such time to exceed such non-Defaulting Lender’s Revolving Credit Commitment. Subject to Section 12.15, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Revolving Credit Lender having become a Defaulting Lender, including any claim of a non-Defaulting Lender as a result of such non-Defaulting Lender’s increased exposure following such reallocation.
(b)Defaulting Lender Cure. If the Borrower and the Agent agree in writing in their sole but reasonable discretion (with no consent required from the Borrower if any Default or Event of Default exists) that a Defaulting Lender that is a Lender should no longer be deemed to be a Defaulting Lender, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any cash collateral), that Lender, if a Lender, will, to the extent applicable, purchase that portion of outstanding Loans of the other Lenders or take
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such other actions as the Agent may determine to be necessary to cause the subject Loans and funded and unfunded participations in Letters of Credit to be held on a pro rata basis by the Lenders in accordance with their applicable Commitment Percentages (without giving effect to Section 3.11(a)(iv)), whereupon that Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender's having been a Defaulting Lender.
(c)Purchase or Cancellation of Defaulting Lender’s Commitment. Any Lender who is not a Defaulting Lender may, but shall not be obligated, in its sole discretion, to acquire all or a portion of a Defaulting Lender’s Commitment. Any Lender desiring to exercise such right shall give written notice thereof to the Agent and the Borrower no sooner than 2 Business Days and not later than 5 Business Days after such Defaulting Lender became a Defaulting Lender. If more than one Lender exercises such right, each such Lender shall have the right to acquire an amount of such Defaulting Lender’s Commitment in proportion to the Commitments of the other Lenders exercising such right. If after such 5th Business Day, the Lenders have not elected to purchase all of the Commitment of such Defaulting Lender, then the Borrower may, by giving written notice thereof to the Agent, such Defaulting Lender and the other Lenders, either (i) demand that such Defaulting Lender assign its Commitment to an Eligible Assignee subject to and in accordance with the provisions of Section 12.5 for the purchase price provided for below or (ii) terminate the Commitment of such Defaulting Lender, whereupon such Defaulting Lender shall no longer be a party hereto or have any rights or obligations hereunder or under any of the other Loan Documents. No party hereto shall have any obligation whatsoever to initiate any such replacement or to assist in finding an Eligible Assignee. Upon any such purchase or assignment, the Defaulting Lender’s interest in the Loans and its rights hereunder (but not its liability in respect thereof or under the Loan Documents or this Agreement to the extent the same relate to the period prior to the effective date of the purchase except to the extent assigned pursuant to such purchase) shall terminate on the date of purchase, and the Defaulting Lender shall promptly execute all documents reasonably requested to surrender and transfer such interest to the purchaser or assignee thereof, including an appropriate Assignment and Assumption Agreement and, notwithstanding Section 12.5, shall pay to the Agent an assignment fee in the amount of $5,000.00. The purchase price for the Commitment of a Defaulting Lender shall be equal to the amount of the principal balance of the Loans outstanding and owed by the Borrower to the Defaulting Lender. Prior to payment of such purchase price to a Defaulting Lender, the Agent shall apply against such purchase price any amounts retained by the Agent pursuant to the last sentence of Section 3.11(a)(ii). Notwithstanding the foregoing, the Defaulting Lender shall be entitled to receive amounts owed to it by the Borrower under the Loan Documents which accrued prior to the date of the default by the Defaulting Lender, to the extent the same are received by the Agent from or on behalf of the Borrower. There shall be no recourse against any Lender or the Agent for the payment of such sums except to the extent of the receipt of payments from any other party or in respect of the Loans
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Section 3.12.Taxes.
(a)Taxes Generally. All payments by the Borrower of principal of, and interest on, the Loans and all other Obligations shall be made free and clear of and without deduction for any present or future Taxes, except as required by Applicable Law. If any Applicable Law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by the Borrower or other applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 3.12) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(b)Payment of Other Taxes. The Loan Parties shall timely pay to the relevant Governmental Authority in accordance with Applicable Law, or at the option of the Agent timely reimburse it for the payment of, any Other Taxes.
(c)Tax Indemnification by the Borrower. The Loan Parties shall jointly and severally indemnify each Recipient, within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 3.12) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Agent), or by the Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(d)Tax Indemnification by the Lenders. Each Lender shall severally indemnify the Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that a Loan Party has not already indemnified the Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 12.5(c) relating to the maintenance of a Participant Register, and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Agent to the Lender from any other source against any amount due to the Agent under this subsection.
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(e)Evidence of Payment. As soon as practicable after any payment of Taxes by a Loan Party to a Governmental Authority pursuant to this Section 3.12, the Borrower or such other Loan Party shall deliver to the Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Agent.
(f)Status of Lenders. Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Agent, at the time or times reasonably requested by the Borrower or the Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Agent as will enable the Borrower or the Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in the immediately following clauses (ii)(A), (ii)(B) and (ii)(D)) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(i)Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Person:
(A)any Lender that is a U.S. Person shall deliver to the Borrower and the Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Agent), an electronic copy (or an original if requested by the Borrower or the Agent) of an executed IRS Form W-9 (or any successor form) certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B)any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Agent), whichever of the following is applicable:
(I)in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, an electronic copy (or an original if requested by the Borrower or the Agent) of an executed IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty
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and (y) with respect to any other applicable payments under any Loan Document, IRS Form W 8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II)an electronic copy (or an original if requested by the Borrower or the Agent) of an executed IRS Form W-8ECI;
(III)in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit H-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of IRS Form W-8BEN; or
(IV)to the extent a Foreign Lender is not the beneficial owner, an electronic copy (or an original if requested by the Borrower or the Agent) of an executed IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W 9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C)any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Agent), an electronic copy (or an original if requested by the Borrower or the Agent) of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit the Borrower or the Agent to determine the withholding or deduction required to be made; and
(D)if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as
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applicable), such Lender shall deliver to the Borrower and the Agent at the time or times prescribed by Applicable Law and at such time or times reasonably requested by the Borrower or the 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 Agent as may be necessary for the Borrower and the Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Agent in writing of its legal inability to do so.
(g)Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 3.12 (including by the payment of additional amounts pursuant to this Section 3.12), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 3.12 with respect to the Taxes giving rise to such refund), net of all reasonable third party out-of-pocket expenses (including Taxes) of such indemnified party actually incurred and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this subsection (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this subsection, in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this subsection the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund has not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This subsection shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it reasonably deems confidential) to the indemnifying party or any other Person.
(h)Survival. Each party’s obligations under this Section 3.12 shall survive the resignation or replacement of the Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
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Section 3.13. Special Provisions Regarding Alternate Currency Loans; Adjusted Sharing Event Commitments and Sharing Event Percentages. Notwithstanding anything in this Agreement to the contrary:
(a)Upon the occurrence of a Sharing Event, automatically (and without the taking of any action), (x) all then outstanding Eurocurrency Loans denominated in an Alternative Currency shall be automatically converted into Base Rate Loans denominated in Dollars in an amount equal to the Dollar Equivalent (determined by the Agent on the basis of the Spot Rate determined on the Sharing Date) of the aggregate principal amount of the applicable Eurocurrency Loans on the date such Sharing Event first occurred, which Loans denominated in Dollars (i) shall thereafter continue to be deemed to be Base Rate Loans and (ii) unless such Sharing Event resulted solely from a termination of the Commitments, shall be immediately due and payable on the date such Sharing Event has occurred and (y) unless such Sharing Event resulted solely from a termination of the Commitments, all accrued and unpaid interest and other amounts owing with respect to such Loans shall be immediately due and payable by the Borrower, in Dollars, using the Dollar Equivalent amount of such accrued and unpaid interest and other amounts.
(b)Upon the occurrence of a Sharing Event, and after giving effect to any automatic conversion pursuant to Section 3.13(a), each Lender shall (and hereby unconditionally and irrevocably agrees to) purchase and sell (in each case in Dollars) undivided participating interests in all Revolving Credit Loans outstanding to, and any unpaid LC Exposure owing by, the Borrower in such amounts so that each Revolving Credit Lender shall have a share of such outstanding Revolving Credit Loans and unpaid LC Exposure then owing by the Borrower equal to its Sharing Event Percentage of the aggregate Revolving Credit Commitments (based on, and resulting in, the Adjusted Sharing Event Commitment of each Lender) although if because of fluctuations in currency exchange rates any Revolving Credit Lender would be required to purchase such participations after giving effect to which such Revolving Credit Lender's allocated share of all Revolving Credit Loans and LC Exposure (including participations therein purchased pursuant to this Section 3.13) would exceed the Dollar Equivalent amount of such Revolving Credit Lender's Adjusted Sharing Event Commitment, then such participations shall be in an amount after giving effect to which such Revolving Credit Lender's allocated share of all Revolving Credit Loans and LC Exposure (including participations therein purchased pursuant to this Section 3.13) would equal the Dollar Equivalent amount of such Revolving Credit Lender's Adjusted Sharing Event Commitment). Upon any such occurrence, the Agent shall notify each Revolving Credit Lender and shall specify the amount of Dollars required from such Revolving Credit Lender in order to effect the purchases and sales by the various Revolving Credit Lenders of participating interests in the amounts required above (together with accrued interest with respect to the period for the last interest payment date through the date of the Sharing Event plus any additional amounts payable by the Borrower pursuant to this Section 3.13 in respect of such accrued but unpaid interest); provided, however, in the event that a Sharing Event shall have occurred, each Revolving Credit Lender shall be deemed to have purchased, automatically and without request, such participating interests. Promptly upon receipt of such request, each Revolving Credit Lender shall deliver to the Agent (in Same Day Funds in Dollars) the net amounts as specified by the Agent. The Agent shall promptly deliver the amounts so received to
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the various Revolving Credit Lenders in such amounts as are needed to effect the purchases and sales of participations by and among the Revolving Credit Lenders as provided above. Promptly following receipt thereof, each Revolving Credit Lender which has sold participations in any of its Revolving Credit Loans (through the Agent) will deliver to each Revolving Credit Lender (through the Agent) which has so purchased a participating interest a participation certificate dated the date of receipt of such funds and in such amount. It is understood that the amount of funds delivered by each Revolving Credit Lender shall be calculated on a net basis, giving effect to both the sales and purchases of participations by the various Revolving Credit Lenders as required above.
(c)Upon the occurrence of a Sharing Event (i) no further Revolving Credit Loans shall be made and no further Letters of Credit shall be issued, (ii) all amounts from time to time accruing with respect to, and all amounts from time to time payable on account of, any outstanding Revolving Loans initially denominated in an Alternative Currency (including, without limitation, any interest and other amounts which were accrued but unpaid on the date of such purchase) shall be payable in Dollars as if such Revolving Loans had originally been made in Dollars and shall be distributed by the relevant Lenders (or their Affiliates) to the Agent for the account of the Revolving Credit Lenders which made such Revolving Credit Loans or are participating therein and (iii) the Revolving Credit Commitments of the Lenders shall be terminated automatically (and without the taking of any action). Notwithstanding anything to the contrary contained above, the failure of any Lender to purchase its participating interest in any Revolving Credit Loans upon the occurrence of a Sharing Event shall not relieve any other Revolving Credit Lender of its obligation hereunder to purchase its participating interests in a timely manner, but no Lender shall be responsible for the failure of any other Revolving Credit Lender to purchase the participating interest to be purchased by such other Revolving Credit Lender on any date.
(d)If any amount required to be paid by any Revolving Credit Lender pursuant to Section 3.13(b) is not paid to the Agent within one (1) Business Day following the date upon which such Revolving Credit Lender receives notice from the Agent of the amount of its participations required to be purchased pursuant to said Section 3.13(b), such Revolving Credit Lender shall also pay to the Agent on demand an amount equal to the product of (i) the amount so required to be paid by such Revolving Credit Lender for the purchase of its participations times (ii) the daily average Federal Funds Rate during the period from and including the date of request for payment to the date on which such payment is immediately available to the Agent times (iii) a fraction the numerator of which is the number of days that elapsed during such period and the denominator of which is 360. If any such amount required to be paid by any Lender pursuant to Section 3.13(b) is not in fact made available to the Agent within three (3) Business Days following the date upon which such Revolving Credit Lender receives notice from the Agent as to the amount of participations required to be purchased by it, the Agent shall be entitled to recover from such Lender on demand, such amount with interest thereon calculated from such request date at the rate per annum applicable to Base Rate Loans hereunder. Upon submission by the Agent of a certificate to any Revolving Credit Lender with respect to any amounts payable by any Revolving Credit Lender pursuant to this Section 3.13, the amount set
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forth in such certificate shall be paid to the Agent for the account of the relevant Revolving Credit Lenders; provided, however, that, if the Agent (in its sole and exclusive discretion) has elected to fund on behalf of such Revolving Credit Lender the amounts owing to such Revolving Credit Lenders, then the amounts shall be paid to the Agent for its own account.
(e)Whenever, at any time after the relevant Revolving Credit Lenders have received from any Lenders purchases of participations in any Revolving Credit Loans pursuant to this Section 3.13, the Lenders receive any payment on account thereof, such Lenders will distribute to the Agent, for the account of the various Lenders participating therein, such Revolving Credit Lenders' participating interests in such amounts (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such participations were outstanding) in like funds as received; provided, however, that in the event that such payment received by any Revolving Credit Lenders are required to be returned, the Revolving Credit Lenders who received previous distributions in respect of their participating interests therein will return to the respective Revolving Credit Lenders any portion thereof previously so distributed to them in like funds as such payment is required to be returned by the respective Revolving Credit Lenders.
(f)Each Revolving Credit Lender's obligation to purchase participating interests pursuant to this Section 3.13 shall be absolute and unconditional and shall not be affected by any circumstance including, without limitation, (a) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against any other Revolving Credit Lender, any Loan Party or any other Person for any reason whatsoever, (b) the occurrence or continuance of an Event of Default, (c) any adverse change in the condition (financial or otherwise) of any Loan Party or any other Person, (d) any breach of this Agreement by any Loan Party, any Lender, or any other Person, or (e) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
(g)Notwithstanding anything to the contrary contained elsewhere in this Agreement, upon any purchase of participations as required above, each Revolving Credit Lender which has purchased such participations shall be entitled to receive from the Borrower any increased costs and indemnities directly from the Borrower to the same extent as if it were the direct Lender as opposed to a participant therein. The Borrower hereby acknowledges and agrees that, upon the occurrence of a Sharing Event and after giving effect to the requirements of this Section 3.13, increased Taxes may be owing by the Borrower pursuant to Section 3.12, which Taxes shall be paid (to the extent provided in Section 3.12) by the Borrower, without any claim that the increased Taxes are not payable because same resulted from the participations effected as otherwise required by this Section 3.13.
ARTICLE IV. - YIELD PROTECTION, ETC.
Section 4.1.Additional Costs; Capital Adequacy.
(a)Additional Costs. The Borrower shall promptly pay to the Agent for the account of each affected Lender from time to time such amounts as such Lender may reasonably determine to be necessary to compensate such Lender for any costs incurred by such Lender that
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it reasonably determines are attributable to its making or maintaining of any Loans (whether in Dollars or an Alternative Currency) or its obligation to make any Loans (whether in Dollars or an Alternative Currency) hereunder, any reduction in any amount receivable by such Lender under this Agreement or any of the other Loan Documents in respect of any of such Loans or such obligation or the maintenance by such Lender of capital in respect of its Loans or its Commitments (such increases in costs and reductions in amounts receivable being herein called “Additional Costs”), to the extent resulting from any Regulatory Change that: (i) changes the basis of taxation of any amounts payable to such Lender under this Agreement or any of the other Loan Documents in respect of any of such Loans, Letters of Credit, or its Commitment (other than for Indemnified Taxes, Taxes described in clauses (b) through (d) of the definition of Excluded Taxes, and Connection Income Taxes); or (ii) imposes or modifies any reserve, special deposit or similar requirements (other than Regulation D of the Board of Governors of the Federal Reserve System or other reserve requirement to the extent utilized in the determination of Adjusted LIBOR for such Loan) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Lender, or any commitment of such Lender (including, without limitation, the Commitments of such Lender hereunder); (iii) imposes on any Lender or any Lender as issuer of any Letter of Credit or the London interbank market or the relevant local market for obtaining quotations for Canadian CDOR Rate, any other condition, cost or expense (other than Taxes) affecting this Agreement or Eurocurrency Loans (whether in Dollars or an Alternative Currency) made by such Lender or any Letter of Credit or participation therein; or (iv) has or would have the effect of reducing the rate of return on capital or liquidity of such Lender or its holding company to a level below that which such Lender or its holding company could have achieved but for such Regulatory Change (taking into consideration such Lender’s policies with respect to capital adequacy).
(b)Lender’s Suspension of Eurocurrency Loans. Without limiting the effect of the provisions of the immediately preceding subsection (a), if, by reason of any Regulatory Change, any Lender either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Lender that includes deposits by reference to which the interest rate on Eurocurrency Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such Lender that includes Eurocurrency Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Lender so elects by notice to the Borrower (with a copy to the Agent), the obligation of such Lender to make or Continue, or to Convert any other Type of Loans in any Currency into, Eurocurrency Loans hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of Section 4.6 shall apply).
(c)Additional Costs in Respect of Letters of Credit. Without limiting the obligations of the Borrower under the preceding subsections of this Section 4.1 (but without duplication), if as a result of any Regulatory Change or any risk-based capital guideline or other requirement heretofore or hereafter issued by any Governmental Authority there shall be imposed, modified or deemed applicable, in each case after the Agreement Date, any tax, reserve, special deposit, capital adequacy or similar requirement against or with respect to or measured by reference to
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Letters of Credit and the result shall be to increase the cost to the Agent of issuing (or any Lender of purchasing participations in) or maintaining its obligation hereunder to issue (or purchase participations in) any Letter of Credit or reduce any amount receivable by the Agent or any Lender hereunder in respect of any Letter of Credit, then, upon demand by the Agent or such Lender, the Borrower shall pay promptly, and in any event within 3 Business Days of demand, to the Agent for its account or the account of such Lender, as applicable, from time to time as specified by the Agent or a Lender, such additional amounts as shall be sufficient to compensate the Agent or such Lender for such increased costs or reductions in amount.
(d)Notification and Determination of Additional Costs. Each of the Agent and each Lender agrees to notify the Borrower of any event occurring after the Agreement Date entitling the Agent or such Lender to compensation under any of the preceding subsections of this Section as promptly as practicable; provided, however, except as otherwise provided below, the failure of the Agent or any Lender to give such notice shall not release the Borrower from any of its obligations hereunder (and in the case of a Lender, to the Agent). The Agent or such Lender agrees to furnish to the Borrower (and in the case of a Lender, to the Agent) a certificate setting forth in reasonable detail the basis and amount of each request by the Agent or such Lender for compensation under this Section, in each case within three months after the effective date of the Regulatory Change or other circumstance giving rise to such requested compensation (and, should such certificate not be furnished within such three-month period, the Borrower shall not be liable for any Additional Costs or compensation related to such Regulatory Change or other circumstance). Absent manifest error, determinations by the Agent or any Lender of the effect of any Regulatory Change shall be conclusive, provided that such determinations are made on a reasonable basis and in good faith and otherwise in accordance with this Agreement.
Section 4.2.Suspension of Eurocurrency Loans.
Subject to Section 4.9 below, anything herein to the contrary notwithstanding (but except, in the case of clause (A) below, as otherwise provided in clause (ii) of the definition of LIBOR in Section 1.1 hereof), if, on or prior to the determination of the Eurocurrency Rate for any Interest Period with respect to borrowings denominated in any Currency:
(A)the Agent reasonably determines (which determination shall be conclusive) that by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurocurrency Rate with respect to borrowings of such Currency for such Interest Period, or
(B)the Agent reasonably determines (which determination shall be deemed presumptively correct) that, due to changes not reasonably foreseeable on the Agreement Date, the Eurocurrency Rate with respect to borrowings of such Currency will not adequately and fairly reflect the cost to the Lenders of making or maintaining Eurocurrency Loans of such Currency for such Interest Period;
then the Agent shall give the Borrower and each Lender prompt notice thereof and, so long as such condition remains in effect, the Lenders shall be under no obligation to, and shall not, make
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additional Eurocurrency Loans of such Currency, Continue Eurocurrency Loans in such Currency or Convert Loans into Eurocurrency Loans of such Currency and, unless repaid by Borrower (i) any Loan Notice of borrower with respect to a Eurocurrency Loan of such affected Currency shall be automatically withdrawn and shall be deemed a request for (x) a Base Rate Loan, with respect to Loans denominated in Dollars, or (y) an Alternate Rate Loan, with respect to Loans denominated in any Alternative Currency, (ii) if such event relates to Loans denominated in Dollars, each Eurocurrency Loan denominated in Dollars will automatically, on the last day of the then current Interest Period applicable thereto, become a Base Rate Loan, and (iii) if such event relates to Eurocurrency Loans denominated in any Alternative Currency, each Eurocurrency Loan denominated in such Alternative Currency will automatically, on the last day of the then current Interest Period applicable thereto, become an Alternate Rate Loan, and the obligations of the Lenders to make Eurocurrency Loans of such Currency shall be suspended until the Agent determines that the circumstances giving rise to such suspension no longer exist, whereupon the Agent shall so notify the Borrower and the Lenders; provided that, for the avoidance of doubt, if the circumstances giving rise to the notice referenced above affect only the Eurocurrency Rate with respect to borrowings denominated in a single Currency, the provisions of this Section 4.2 shall apply only to Eurocurrency Loans denominated in such Currency, and borrowings of Eurocurrency Loans denominated in other Currencies shall be permitted.
Section 4.3.Illegality.
Notwithstanding any other provision of this Agreement, if any Lender shall reasonably determine (which determination shall be conclusive and binding) that it has become unlawful for such Lender to honor its obligation to make or maintain Eurocurrency Loans in any Currency hereunder, then such Lender shall promptly notify the Borrower thereof (with a copy to the Agent) and such Lender’s obligation to make or Continue, or to Convert Loans of any other Type into, Eurocurrency Loans of such Currency shall be suspended until such time as such Lender may again make and maintain Eurocurrency Loans (in which case the provisions of Section 4.6. shall be applicable).
Section 4.4.Compensation.
The Borrower shall pay to the Agent for the account of each Lender, upon the request of such Lender through the Agent, such amount or amounts as shall be sufficient (in the reasonable opinion of such Lender) to compensate it for any loss, cost or expense that such Lender reasonably determines is attributable to:
(A)any payment or prepayment (whether mandatory or optional) of a Eurocurrency Loan, or Conversion of a Eurocurrency Loan, made by such Lender for any reason (including, without limitation, acceleration) on a date other than the last day of the Interest Period for such Loan; or
(B)any failure by the Borrower for any reason (including, without limitation, the failure of any of the applicable conditions precedent specified in Article V. to be satisfied) to borrow a Eurocurrency Loan from such Lender on
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the requested date for such borrowing, or to Convert a Base Rate Loan into a Eurocurrency Loan or Continue a Eurocurrency Loan on the requested date of such Conversion or Continuation.
Upon the Borrower’s request, any Lender requesting compensation under this Section shall provide the Borrower with a statement setting forth in reasonable detail the basis for requesting such compensation and the method for determining the amount thereof. Absent manifest error, determinations by any Lender in any such statement shall be conclusive, provided that such determinations are made on a reasonable basis and in good faith.
Section 4.5.Affected Lenders.
If (a) a Lender requests compensation pursuant to Section 3.12 or Section 4.1, and the Required Lenders are not also doing the same, or (b) the obligation of any Lender to make Eurocurrency Loans or to Continue, or to Convert Base Rate Loans into, Eurocurrency Loans shall be suspended pursuant to Section 4.1(b) or Section 4.3 but the obligation of the Required Lenders shall not have been suspended under such Sections, then, so long as there does not then exist any Default or Event of Default, the Borrower may demand that such Lender (the “Affected Lender”), and upon such demand the Affected Lender shall promptly, assign its Commitment to an Eligible Assignee subject to and in accordance with the provisions of Section 12.5(d) for a purchase price equal to the aggregate Outstanding Amount of all Loans then owing to the Affected Lender plus any accrued but unpaid interest thereon and accrued but unpaid fees owing to the Affected Lender, or any other amount as may be mutually agreed upon by such Affected Lender and Eligible Assignee. Each of the Agent and the Affected Lender shall reasonably cooperate in effectuating the replacement of such Affected Lender under this Section, but at no time shall the Agent, such Affected Lender nor any other Lender be obligated in any way whatsoever to initiate any such replacement or to assist in finding an Eligible Assignee. The exercise by the Borrower of its rights under this Section shall be at the Borrower’s sole cost and expense and at no cost or expense to the Agent, the Affected Lender or any of the other Lenders. The terms of this Section shall not in any way limit the Borrower’s obligation to pay to any Affected Lender compensation owing to such Affected Lender pursuant to Section 3.12 or Section 4.1 with respect to periods up to the date of replacement.
Section 4.6.Treatment of Affected Loans.
If the obligation of any Lender to make Eurocurrency Loans or to Continue, or to Convert Base Rate Loans into, Eurocurrency Loans shall be suspended pursuant to Section 4.1(b) or Section 4.3, then such Lender’s (i) Eurocurrency Loans denominated in Dollars shall be automatically Converted into Base Rate Loans on the last day(s) of the then current Interest Period(s) for Eurocurrency Loans (or, in the case of a Conversion required by Section 4.1(b) or Section 4.3, on such earlier date as such Lender may specify to the Borrower with a copy to the Agent) and (ii) Eurocurrency Loans denominated in any Alternative Currency shall be converted automatically to Alternate Rate Loans on the last day of each Interest Period applicable to such Eurocurrency Loans (or, in the case of a Conversion required by Section 4.1(b) or Section 4.3, on such earlier date as such Lender may specify to the Borrower with a copy to the Agent), and,
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unless and until such Lender gives notice as provided below that the circumstances specified in Section 4.1(b) or Section 4.3 that gave rise to such Conversion no longer exist:
(A)to the extent that such Lender’s Eurocurrency Loans denominated in Dollars have been so Converted, all payments and prepayments of principal that would otherwise be applied to such Lender’s Eurocurrency Loans shall be applied instead to its Base Rate Loans;
(B)all Loans denominated in Dollars that would otherwise be made or Continued by such Lender as Eurocurrency Loans denominated in Dollars shall be made or Continued instead as Base Rate Loans, and all Base Rate Loans of such Lender that would otherwise be Converted into Eurocurrency Loans denominated in Dollars shall remain as Base Rate Loans;
(C)to the extent that such Lender’s Eurocurrency Loans denominated in any affected Alternative Currency have been so Converted, all payments and prepayments of principal that would otherwise be applied to such Lender’s Eurocurrency Loans shall be applied instead to its Alternate Rate Loans; and
(D)all Loans denominated in any Alternative Currency that would otherwise be made or Continued by such Lender as Eurocurrency Loans denominated in such Alternative Currency shall be made or Continued instead as Alternate Rate Loans in such Alternative Currency, and all Alternate Rate Loans in such Alternative Currency of such Lender that would otherwise be Converted into Eurocurrency Loans denominated in such Alternative Currency shall remain as Alternate Rate Loans;
provided that, for the avoidance of doubt, if the circumstances giving rise to the notice referenced above affect only the Eurocurrency Rate with respect to borrowings denominated in a single Currency, the provisions of this Section 4.6 shall apply only to Eurocurrency Loans denominated in such Currency, and borrowings of Eurocurrency Loans denominated in other Currencies shall be permitted. If such Lender gives notice to the Borrower (with a copy to the Agent) that the circumstances specified in Section 4.1 or Section 4.3 that gave rise to the Conversion of such Lender’s Eurocurrency Loans pursuant to this Section no longer exist (which such Lender agrees to do promptly upon such circumstances ceasing to exist) at a time when Eurocurrency Loans made by other Lenders are outstanding, then such Lender’s Base Rate Loans shall be automatically Converted, on the first day(s) of the next succeeding Interest Period(s) for such outstanding Eurocurrency Loans, to the extent necessary so that, after giving effect thereto, all Loans held by the Lenders holding Eurocurrency Loans and by such Lender are held pro rata (as to principal amounts, Types and Interest Periods) in accordance with their respective Commitments.
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Section 4.7.Change of Lending Office.
Each Lender agrees that it will use reasonable efforts to designate an alternate Lending Office with respect to any of its Loans affected by the matters or circumstances described in Section 3.12, Section 4.1 or Section 4.3 to reduce the liability of the Borrower or avoid the results provided thereunder, so long as such designation is not disadvantageous to such Lender as determined by such Lender in its sole discretion, except that such Lender shall have no obligation to designate a Lending Office located in the United States of America.
Section 4.8.Assumptions Concerning Funding of Eurocurrency Loans.
Calculation of all amounts payable to a Lender under this Article IV. shall be made as though such Lender had actually funded Eurocurrency Loans in the applicable Currency through the purchase of deposits denominated in the applicable Currency in the relevant market bearing interest at the rate applicable to such Eurocurrency Loans in an amount equal to the amount of the Eurocurrency Loans and having a maturity comparable to the relevant Interest Period; provided, however, that each Lender may fund each of its Eurocurrency Loans in any manner it sees fit and the foregoing assumption shall be used only for calculation of amounts payable under this Article IV.
Section 4.9.Benchmark Replacement Setting. Notwithstanding anything to the contrary herein or in any other Loan Document:
(a)Replacing LIBOR. On March 5, 2021 ICE Benchmark Administration (“IBA”), the entity that calculates and publishes LIBOR, and the U.K. Financial Conduct Authority (“FCA”), the regulatory supervisor of IBA, made public statements regarding the future cessation of LIBOR. According to the FCA, IBA will permanently cease publication of (i) all GBP, EUR, CHF and JPY LIBOR settings, and the 1-week and 2-month USD LIBOR settings following the publication of such settings on December 31, 2021, and (ii) the overnight/Spot Next, 1-month, 3-month, 6-month and 12-month USD LIBOR settings, immediately following the publication of such settings on June 30, 2023. As a consequence, on the earliest of (i) July 1, 2023, (ii) the date that all Available Tenors of USD LIBOR have either permanently or indefinitely ceased to be provided by IBA or have been announced by the FCA pursuant to public statement or publication of information to be no longer representative and (iii) the Early Opt-in Effective Date, with respect to Loans denominated in US Dollars, if the then-current Benchmark is USD LIBOR, the applicable Benchmark Replacement will replace such Benchmark, in the case of both clauses (x) and (y), for all purposes hereunder and under any Loan Document in respect of any setting of such Benchmark on such day and all subsequent settings without any amendment to, or further action by or consent of any other party to, this Agreement or any other Loan Document.
(b)Replacing Other Benchmarks. If any Benchmark Transition Event occurs after the date hereof (other than as described above in clause (a)) with respect to any Benchmark, the applicable Benchmark will be replaced with the applicable Benchmark Replacement (including any applicable credit spread adjustment) for all purposes hereunder and under any Loan
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Document in respect of any Benchmark setting on the later of (i) 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders and the Borrower (together, if applicable, with an amendment to this Agreement implementing such Benchmark Replacement and any applicable Benchmark Replacement Conforming Changes and, in each case, including (without duplicating any other spread adjustment expressly set forth herein) any mathematical or other spread adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar credit facilities syndicated and agented in the United States and denominated in such Alternative Currency for such benchmarks, which adjustment or method for calculating such adjustment shall be published on an information service as selected by the Agent from time to time in its reasonable discretion and may be periodically updated) or (ii) such other date as may be determined by the Agent, in each case, without any further action or consent of any other party to this Agreement or any other Loan Document, so long as the Agent has not received, by such time (or, in the case of clause (ii) above, such time as may be specified by the Agent as a deadline to receive objections, but in any case, no less than five (5) Business Days after the date such notice is provided to the Lenders and the Borrower), written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders; provided, however, that in the event that the then-current Benchmark with respect to U.S. Dollar denominated Loans is not a SOFR-based rate, then the Benchmark Replacement shall be determined in accordance with clause (1)(a) of the definition of “Benchmark Replacement’ unless the Agent has determined that neither of such alternative rates is available. At any time that the administrator of any then-current Benchmark has permanently or indefinitely ceased to provide such Benchmark or such Benchmark has been announced by the regulatory supervisor for the administrator of such Benchmark pursuant to public statement or publication of information to be no longer representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored, the Borrower may revoke any request for a borrowing of, conversion to or continuation of Loans to be made, converted or continued that would bear interest by reference to such Benchmark until the Borrower’s receipt of notice from the Agent that a Benchmark Replacement has replaced such Benchmark, and, failing that, the Borrower will be deemed to have converted any such request into a request for a borrowing of or conversion to Base Rate Loans or the Alternate Rate Loans, as applicable. During the period referenced in the foregoing sentence, the component of the Base Rate based upon the applicable Benchmark will not be used in any determination of the Base Rate.
(c)Benchmark Replacement Conforming Changes. In connection with the implementation and administration of a Benchmark Replacement (whether in connection with the replacement of LIBOR or any future Benchmark), the Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(d)Notices; Standards for Decisions and Determinations. The Agent will promptly notify the Borrower and the Lenders of (i) the implementation of any Benchmark Replacement
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and (ii) the effectiveness of any Benchmark Replacement Conforming Changes. Any determination, decision or election that may be made by the Agent pursuant to this Section including, without limitation, any determination with respect to a tenor, rate or adjustment, or implementation of any Benchmark Replacement Conforming Changes, the timing of implementation of any Benchmark Replacement or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding on all parties hereto absent manifest error and may be made in its sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section, and shall not be a basis of any claim of liability of any kind or nature by any party hereto, all such claims being hereby waived individually by each party hereto.
(e)Unavailability of Tenor of Benchmark. At any time (including in connection with the implementation of a Benchmark Replacement), (i) if a then-current Benchmark is a term rate (including Term SOFR, Term ESTR, Term TONA or USD LIBOR, or any alternate rate selected in an Early Opt-in Election), then the Agent may remove any tenor of such Benchmark that is unavailable or non-representative for such Benchmark (including any Benchmark Replacement) settings and (ii) if such tenor becomes available or representative, the Agent may reinstate any previously removed tenor for such Benchmark (including any Benchmark Replacement) settings.
(f)Certain Defined Terms. As used in this Section 4.9:
Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if the then-current Benchmark is a term rate, any tenor for such Benchmark that is or may be used for determining the length of an Interest Period or (y) otherwise, any payment period for interest calculated with reference to such Benchmark, as applicable, pursuant to this Agreement as of such date.
Benchmark” means, initially, each Relevant Rate; provided that if a replacement for the Benchmark has occurred pursuant to this Section, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate. Any reference to “Benchmark” shall include, as applicable, the published component used in the calculation thereof.
Benchmark Replacement” means, for any Available Tenor:
(1)    for purposes of clause (a) of this Section 4.9, the first alternative for Loans denominated in the applicable currency set forth below that can be determined by the Agent for the applicable Benchmark; provided, that, with respect to any Loan denominated in any other currency (including Canadian Dollars or Australian Dollars), “Benchmark Replacement” shall mean the alternative set forth in clause (2) below:
        (a)     in the case of Loans denominated in US Dollars,
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            (x)     the sum of: (i) Term SOFR and (ii) 0.11448% (11.448 basis points) for an Available Tenor of one-month’s duration, 0.26161% (26.161 basis points) for an Available Tenor of three-months’ duration, and 0.42826% (42.826 basis points) for an Available Tenor of six-months’ duration; provided, that, if the Borrower has provided a notification to the Agent in writing on or prior to the date on which the Benchmark Replacement will become effective that the Borrower has a Derivatives Contract in place with respect to any of the Loans as of the date of such notice (which such notification the Agent shall be entitled to rely upon and shall have no duty or obligation to ascertain the correctness or completeness of), then the Agent, in its sole discretion, may decide not to determine the Benchmark Replacement pursuant to this clause (1)(a)(x) for such Benchmark Transition Event or Early Opt-in Election, as applicable; or
            (y)     the sum of: (i) Daily Simple SOFR and (ii) the spread adjustment for an Available Tenor of one-month’s duration (0.11448% (11.448 basis points));
    provided, however, that if an Early Opt-in Election has been made, the Benchmark Replacement will be the benchmark selected in connection with such Early Opt-in Election; and
        (b)     RESERVED;
        (c)    in the case of Loans denominated in Euro,
            (x)     the sum of (i) Term ESTR and (ii) the related Benchmark Replacement Adjustment; or
            (y)    the sum of (i) Daily Simple ESTR and (ii) the related Benchmark Replacement Adjustment;
        (d)    RESERVED; and
        (e)    in the case of any Loan denominated in Yen,
            (x)    the sum of (i) Term TONA and (ii) the related Benchmark Replacement Adjustment; or
            (y)    the sum of Daily Simple TONA and (ii) the related Benchmark Replacement Adjustment.
(2)    for purposes of Loans denominated in Sterling or Swiss Francs and for any other currency (including Canadian Dollars or Australian Dollars), the sum of: (a) the alternate benchmark rate selected by the Agent as the replacement for the relevant then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the relevant then-current Benchmark for
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syndicated credit facilities denominated in the applicable Currency at such time and (b) the related Benchmark Replacement Adjustment.
provided that, if the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for all purposes of this Agreement and the other Loan Documents.
Benchmark Replacement Adjustment” means, with respect to any replacement of a then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement:
(1) for purposes of sub-clauses (c), (d) and (e) of clause (1) of the definition of “Benchmark Replacement,” the first alternative set forth in the order below that can be determined by the Agent:
(a) the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that has been selected or recommended by the Relevant Governmental Body for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for the applicable Corresponding Tenor;
(b) the spread adjustment (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that would apply to the fallback rate for a derivative transaction referencing the ISDA Definitions to be effective upon an index cessation event with respect to such Benchmark for the applicable Corresponding Tenor; and
(2) for purposes of clause (2) of the definition of “Benchmark Replacement,” the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Agent and the Borrower Representative for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement date or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for syndicated credit facilities denominated in the applicable currency.
provided that, in the case of clause (1) above, such adjustment is displayed on a screen or other information service that publishes such Benchmark Replacement Adjustment from time to time as selected by the Agent in its reasonable discretion.
Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of
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“Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Agent in a manner substantially consistent with market practice (or, if the Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
Benchmark Transition Event” means, with respect to any then-current Benchmark (other than LIBOR), the occurrence of a public statement or publication of information by or on behalf of the administrator of the then-current Benchmark, the regulatory supervisor for the administrator of such Benchmark, the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark, a resolution authority with jurisdiction over the administrator for such Benchmark or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark, announcing or stating that (a) such administrator has ceased or will cease on a specified date to provide all Available Tenors of such Benchmark, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark or (b) all Available Tenors of such Benchmark are or will no longer be representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored.
Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
Daily Simple ESTR” means, for any day, ESTR, with the conventions for this rate (which may include a lookback) being established by the Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple ESTR” for business loans; provided that, if the Agent decides that any such convention is not administratively feasible for the Agent, then the Agent may establish another convention in its reasonable discretion.
Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Agent in accordance with the conventions for this rate recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided, that if the Agent decides that any such convention is not administratively feasible for the Agent, then the Agent may establish another convention in its reasonable discretion.
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Daily Simple TONA” means, for any day, TONA, with the conventions for this rate (which will include a lookback) being established by the Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple TONA” for business loans; provided that, if the Agent decides that any such convention is not administratively feasible for the Agent, then the Agent may establish another convention in its reasonable discretion.
Early Opt-in Effective Date” means, with respect to any Early Opt-in Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, so long as the Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders comprising the Required Lenders.
Early Opt-in Election” means the occurrence of:
(1)a notification by the Agent to each of the other parties hereto that at least five currently outstanding U.S. dollar-denominated syndicated credit facilities at such time incorporate or adopt (as a result of amendment or as originally executed) either a SOFR-based rate (including SOFR, Term SOFR or any other rate based upon SOFR) as a benchmark rate or an alternate benchmark interest rate to replace USD LIBOR (and such syndicated credit facilities are identified in such notice and are publicly available for review), and
(2)the joint election by the Agent and the Borrower to trigger a fallback from USD LIBOR and the provision by the Agent of written notice of such election to the Lenders.
“ESTR” means, with respect to any Business Day, a rate per annum equal to the Euro Short Term Rate for such Business Day published by the ESTR Administrator on the ESTR Administrator’s Website.
ESTR Administrator” means the European Central Bank (or any successor administrator of the Euro Short Term Rate).
ESTR Administrator’s Website” means the European Central Bank’s website, currently at http://www.ecb.europa.eu, or any successor source for the Euro Short Term Rate identified as such by the ESTR Administrator from time to time.
Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to each Relevant Rate.
ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented
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from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.
Relevant Governmental Body” means (i) with respect to a Benchmark Replacement in respect of Loans denominated in US Dollars, the Federal Reserve Board and/or the NYFRB, or a committee officially endorsed or convened by the Federal Reserve Board and/or the NYFRB or, in each case, any successor thereto, (ii) with respect to a Benchmark Replacement in respect of Loans denominated in Sterling, the Bank of England, or a committee officially endorsed or convened by the Bank of England or, in each case, any successor thereto, (iii) with respect to a Benchmark Replacement in respect of Loans denominated in Euros, the European Central Bank, or a committee officially endorsed or convened by the European Central Bank or, in each case, any successor thereto, (iv) with respect to a Benchmark Replacement in respect of Loans denominated in Swiss Francs, the Swiss National Bank, or a committee officially endorsed or convened by the Swiss National Bank or, in each case, any successor thereto, (v) with respect to a Benchmark Replacement in respect of Loans denominated in Yen, the Bank of Japan, or a committee officially endorsed or convened by the Bank of Japan or, in each case, any successor thereto, and (vi) with respect to a Benchmark Replacement in respect of Loans denominated in any other currency, (a) the central bank for the currency in which such Benchmark Replacement is denominated or any central bank or other supervisor which is responsible for supervising either (1) such Benchmark Replacement or (2) the administrator of such Benchmark Replacement or (b) any working group or committee officially endorsed or convened by (1) the central bank for the currency in which such Benchmark Replacement is denominated, (2) any central bank or other supervisor that is responsible for supervising either (A) such Benchmark Replacement or (B) the administrator of such Benchmark Replacement, (3) a group of those central banks or other supervisors or (4) the Financial Stability Board or any part thereof.
Relevant Rate” means (i) with respect to any Revolving Credit Loan denominated in US Dollars, LIBOR, (ii) with respect to any Revolving Credit Loan denominated in Euros, the EURIBOR Rate, (iii) with respect to any Revolving Credit Loan denominated in Yen, the TIBOR Rate, (iv) with respect to any Revolving Credit Loan denominated in Canadian Dollars, the Canadian CDOR Rate, as applicable (v) with respect to any Revolving Credit Loan denominated in Swiss Francs, the Daily Simple SARON, (vi) with respect to any Revolving Credit Loan denominated in Sterling, the Daily Simple SONIA, or (vii) with respect to any Revolving Credit Loan denominated in Australian Dollars, the BBSY Rate.
SOFR” means, for any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published by the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate) on the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org. (or any successor source for the secured overnight financing rate identified as such by the administrator of the secured overnight financing rate from time to time), on the immediately succeeding Business Day.
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Term ESTR” means, for the applicable Corresponding Tenor as of the applicable Reference Time, the forward-looking term rate based on ESTR that has been selected or recommended by the Relevant Governmental Body.
Term SOFR” means, for the applicable corresponding tenor, the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.
Term TONA” means, for the applicable Corresponding Tenor as of the applicable Reference Time, the forward-looking term rate based on TONA that has been selected or recommended by the Relevant Governmental Body.
TONA” means, with respect to any Business Day, a rate per annum equal to the Tokyo Overnight Average Rate for such Business Day published by the TONA Administrator on the TONA Administrator’s Website.
TONA Administrator” means the Bank of Japan (or any successor administrator of the Tokyo Overnight Average Rate).
TONA Administrator’s Website” means the Bank of Japan’s website, currently at http://www.boj.or.jp, or any successor source for the Tokyo Overnight Average Rate identified as such by the TONA Administrator from time to time.
USD LIBOR” means the London interbank offered rate for U.S. dollars.
Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
ARTICLE V. - CONDITIONS PRECEDENT
Section 5.1.Initial Conditions Precedent.
The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a)The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i)Counterparts of this Agreement executed by each of the parties hereto;
(ii)Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;
(iii)An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
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(iv)A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(v)A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi)A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii)Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii)The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix)A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x)A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi)Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
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(xii)Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b)In the good faith judgment of the Agent and the Lenders:
(i)There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii)No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii)The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv)There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Section 5.2.Conditions Precedent to All Loans and Letters of Credit.
The obligations of the Lenders to make any Loans and of the Agent to issue Letters of Credit are all subject to the further condition precedent that: (a) no Default or Event of Default shall exist as of the date of the making of such Loan or date of issuance of such Letter of Credit or would exist immediately after giving effect thereto; (b) the representations and warranties made or deemed made by the Loan Parties in the Loan Documents to which any of them is a party, shall be true and correct in all material respects on and as of the date of the making of such Loan or date of issuance of such Letter of Credit with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate
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solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date) and except for changes in factual circumstances not prohibited under the Loan Documents, and (c) in the case of a Loan or Letter of Credit to be denominated in an Alternative Currency, there shall not have occurred any change in national or international financial, political or economic conditions or currency exchange rates or exchange controls which in the reasonable opinion of the Agent (in the case of any Loans to be denominated in an Alternative Currency) or the Agent in its capacity as issuer of Letters of Credit (in the case of any Letter of Credit to be denominated in an Alternative Currency) would make it impracticable for such Loan or Letter of Credit to be denominated in the relevant Alternative Currency. Each Credit Event shall constitute a certification by the Borrower to the effect set forth in the preceding sentence (both as of the date of the giving of notice relating to such Credit Event and, unless the Borrower otherwise notifies the Agent prior to the date of such Credit Event, as of the date of the occurrence of such Credit Event). In addition, if such Credit Event is the making of a Loan or the issuance of a Letter of Credit, the Borrower shall be deemed to have represented to the Agent and the Lenders at the time such Loan is made or Letter of Credit issued that all conditions to the occurrence of such Credit Event contained in this Article V have been satisfied or waived in accordance with the terms of this Agreement.
ARTICLE VI. - REPRESENTATIONS AND WARRANTIES
Section 6.1.Representations and Warranties.
In order to induce the Agent and each Lender to enter into this Agreement and to make Loans and issue Letters of Credit, the Borrower represents and warrants to the Agent and each Lender as follows:
(a)Organization; Power; Qualification. The Borrower and each of its Subsidiaries is a trust, corporation, partnership, limited liability company or other legal entity, duly organized or formed, validly existing and in good standing under the jurisdiction of its incorporation or formation, has the power and authority to own or lease its respective properties and to carry on its respective business as now being and hereafter proposed to be conducted and is duly qualified and is in good standing as a foreign corporation, partnership or other legal entity, and authorized to do business, in each jurisdiction in which the character of its properties or the nature of its business requires such qualification or authorization; except where the failure to have such power or authority or to be so qualified or authorized could not reasonably be expected to have a Material Adverse Effect.
(b)Ownership Structure. As of the Agreement Date, Schedule 6.1(b) is a complete and correct list of all Subsidiaries of the Borrower setting forth for each such Subsidiary, (i) the jurisdiction of organization of such Subsidiary, (ii) the identity of the Borrower and each other Subsidiary thereof holding any Equity Interests in such Subsidiary and, in the case of a Subsidiary that is not a Wholly Owned Subsidiary, to the Borrower’s knowledge the identity of the holder(s) of the other Equity Interests in such Subsidiary, (iii) a summary description of the nature of the Equity Interests held by each such Person, and (iv) the percentage of ownership of
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such Subsidiary represented by such Equity Interests. Except as disclosed in such Schedule, as of the Agreement Date (i) each of the Borrower and its Subsidiaries owns, free and clear of all Liens (other than Permitted Liens), and has the unencumbered right to vote, all outstanding Equity Interests in each Person shown to be held by it on such Schedule, (ii) all of the issued and outstanding capital stock of each such Person organized as a corporation is validly issued, fully paid and nonassessable, and (iii) with respect to each Unencumbered Property Owner Subsidiary, there are no outstanding subscriptions, options, warrants, commitments, preemptive rights or agreements of any kind (including, without limitation, any stockholders’ or voting trust agreements) for the issuance, sale, registration or voting of, or outstanding securities convertible into, any additional shares of capital stock of any class, or partnership or other ownership interests of any type in, such Subsidiary. As of the Agreement Date, Schedule 6.1.(b) correctly sets forth all Unconsolidated Affiliates of the Borrower, including the correct legal name of such Person, the type of legal entity which each such Person is, and all Equity Interests in such Person held directly or indirectly by the Borrower.
(c)Authorization of Agreement, Etc. The Borrower has the right and power, and has taken all necessary action to authorize it, to borrow and obtain other extensions of credit hereunder. Each Loan Party has the right and power, and has taken all necessary action, to execute, deliver and perform each of the Loan Documents to which it is a party in accordance with its terms and to consummate the transactions contemplated hereby and thereby. The Loan Documents to which any Loan Party is a party have been duly executed and delivered by the duly authorized officers of such Person and each is a legal, valid and binding obligation of such Person enforceable against such Person in accordance with its respective terms except as the same may be limited by bankruptcy, insolvency, and other similar laws affecting the rights of creditors generally and the availability of equitable remedies for the enforcement of certain obligations (other than the payment of principal) contained herein or therein and as may be limited by equitable principles generally.
(d)Compliance of Loan Documents with Laws, Etc. The execution, delivery and performance of this Agreement, the Notes and the other Loan Documents to which any Loan Party is a party in accordance with their respective terms and the borrowings and other extensions of credit hereunder do not and will not, by the passage of time, the giving of notice, or both: (i) require any Governmental Approval or violate any Applicable Law (including all Environmental Laws) relating to any Loan Party; (ii) conflict with, result in a breach of or constitute a default under the organizational documents of any Loan Party, or any indenture, agreement or other instrument to which any Loan Party is a party or by which it or any of its properties may be bound; or (iii) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by any Loan Party.
(e)Compliance with Law; Governmental Approvals. The Borrower and each of its Subsidiaries is in compliance with each Governmental Approval applicable to it and in compliance with all other Applicable Laws (including, without limitation, Environmental Laws) relating to it except for noncompliances which, and Governmental Approvals the failure to
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possess which, could not, individually or in the aggregate, reasonably be expected to cause an Event of Default or have a Material Adverse Effect.
(f)Title to Properties; Liens. As of the Agreement Date, Schedule 6.1(f) is a complete and correct listing of all real property owned or leased by the Borrower or its Subsidiaries or with respect to which the Borrower or one of its Subsidiaries holds an EPR Senior First Mortgage or similar mortgage. Each such Person has good, marketable and legal title to, or a valid leasehold interest in, or, in the case of real estate subject to an EPR Senior First Mortgage or similar mortgage, a valid mortgage lien on, its respective assets. As of the Agreement Date, there are no Liens against any assets of any Loan Party except for Permitted Liens.
(g)Existing Indebtedness. Schedule 6.1(g) is, as of the Agreement Date, a complete and correct listing of all Indebtedness of the Borrower and its Subsidiaries the outstanding principal amount of which exceeds $1,000,000.00, including without limitation, Guarantees of the Borrower and its Subsidiaries, and indicating whether such Indebtedness is Secured Indebtedness.
(h)Material Contracts. Schedule 6.1(h) is, as of the Agreement Date, a true, correct and complete listing of all Material Contracts, other than, to the extent constituting Material Contracts, (i) any agreements or other contracts in the nature of loan agreements or other loan documents which evidence, secure or otherwise relate to any Indebtedness described in Schedule 6.1(g), or which evidence or otherwise relate to the Bonds, and (ii) any lease, mortgage or similar financing documents whereby the Borrower or one or more of its Subsidiaries is a lessor, mortgagee or the like (including, without limitation, any Leases and EPR Senior Property Loan Documents). No event or condition exists which, with the giving of notice, the lapse of time, or both, would permit any party to any such Material Contract to terminate such Material Contract (other than any termination right in favor of the Borrower or any of its Subsidiaries).
(i)Litigation. Except as set forth on Schedule 6.1(i), there are no actions, suits, investigations or proceedings pending (nor, to the knowledge of the Borrower, are there any actions, suits or proceedings threatened) against or in any other way relating adversely to or affecting the Borrower or any of its Subsidiaries or any of their respective property in any court or before any arbitrator of any kind or before or by any other Governmental Authority which could reasonably be expected to have a Material Adverse Effect. There are no strikes, slow downs, work stoppages or walkouts or other labor disputes in progress or threatened relating to the Borrower or any of its Subsidiaries which could reasonably be expected to have a Material Adverse Effect.
(j)Taxes. All federal, state and other tax returns of the Borrower and each of its Subsidiaries required by Applicable Law to be filed have been duly filed, and all federal, state and other taxes, assessments and other governmental charges or levies upon any such Person and its properties, income, profits and assets which are due and payable have been paid, except any such nonpayment which is at the time permitted under Section 7.6. As of the Agreement Date, and except as set forth in Schedule 6.1(j), the Borrower, and to the Borrower’s knowledge, each
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other Loan Party, has not received notice of any United States income tax returns of the Borrower or any of its Subsidiaries being under an audit. All charges, accruals and reserves on the books of the Borrower and each of its Subsidiaries in respect of any taxes or other governmental charges are in accordance with GAAP.
(k)Financial Statements. The Borrower has made available to each Lender (including by way of its Form 10-K filed with the Securities and Exchange Commission) copies of the audited Consolidated balance sheet of the Borrower for the fiscal year ending December 31, 2020, and the related audited Consolidated statements of operations, cash flows and changes in shareholders’ equity for the fiscal year ending on such date, with the opinion thereon of KPMG. Such financial statements (including in each case related schedules and notes) present fairly, in all material respects and in accordance with GAAP consistently applied throughout the period involved, the Consolidated financial position of the Borrower as at such date and the results of operations and the cash flow for such period. Except as may be set forth in the Schedules to this Agreement or the financial statements described above or the Borrower's Form 10-Q filed with the Securities and Exchange Commission for its fiscal quarters ending March 31, 2021 and June 30, 2021, neither the Borrower nor any of its Subsidiaries has on the Agreement Date any contingent liabilities, liabilities, liabilities for taxes, unusual or long-term commitments or unrealized or forward anticipated losses from any unfavorable commitments, in each case, that is material and that would be required to be set forth in its financial statements or in the notes thereto.
(l)No Material Adverse Change; Solvency. Since December 31, 2020, there has been no material adverse change in the business, assets, liabilities, financial condition, results of operations or business prospects of the Borrower and its Subsidiaries taken as a whole. Each of the Loan Parties is Solvent.
(m)ERISA. Each member of the ERISA Group is in compliance with its obligations under the minimum funding standards of ERISA and the Internal Revenue Code with respect to each Plan and is in compliance with the presently applicable provisions of ERISA and the Internal Revenue Code with respect to each Plan, except in each case for noncompliances which could not reasonably be expected to have a Material Adverse Effect. As of the Agreement Date, no member of the ERISA Group has (i) sought a waiver of the minimum funding standard under Section 412 of the Internal Revenue Code in respect of any Plan, (ii) failed to make any contribution or payment to any Plan or Multiemployer Plan or in respect of any Benefit Arrangement, or made any amendment to any Plan or Benefit Arrangement, which failure or amendment has resulted or could reasonably be expected to result in the imposition of a Lien or the posting of a bond or other security under ERISA or the Internal Revenue Code or (iii) incurred any liability under Title IV of ERISA other than a liability to the PBGC for premiums under Section 4007 of ERISA.
(n)Not Plan Assets; No Prohibited Transaction. No assets of the Borrower constitute “plan assets” within the meaning of ERISA, the Internal Revenue Code and the respective regulations promulgated thereunder. The execution, delivery and performance of this Agreement and the other Loan Documents, and the borrowing and repayment of amounts hereunder, do not
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and will not constitute non-exempt “prohibited transactions” under ERISA or the Internal Revenue Code.
(o)Absence of Defaults. Neither the Borrower nor any of its Subsidiaries is in default under its articles of incorporation, bylaws, partnership agreement or other similar organizational documents, and no event has occurred, which has not been remedied, cured or waived, which, in any such case: (i) constitutes a Default or an Event of Default; or (ii) constitutes, or which with the passage of time, the giving of notice, or both, would constitute, a default or event of default by the Borrower or any of its Subsidiaries under any agreement (other than this Agreement) or judgment, decree or order to which the Borrower or any of its Subsidiaries is a party or by which any such Persons or any of their respective properties may be bound where such default or event of default could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(p)Environmental Laws. The Borrower and each of its Subsidiaries has obtained all Governmental Approvals which are required under Environmental Laws and is in compliance with all terms and conditions of such Governmental Approvals which the failure to obtain or to comply with could reasonably be expected to have a Material Adverse Effect. Except for any of the following matters that could not be reasonably expected to have a Material Adverse Effect, (i) the Borrower is not aware of, and has not received notice of, any past, present, or future events, conditions, circumstances, activities, practices, incidents, actions, or plans which, with respect to the Borrower or any of its Subsidiaries, may interfere with or prevent compliance or continued compliance with Environmental Laws, or may give rise to any common-law or legal liability, or otherwise form the basis of any claim, action, demand, suit, proceeding, hearing, or investigation, based on or related to the manufacture, processing, distribution, use, treatment, storage, disposal, transport, or handling or the emission, discharge, release or threatened release into the environment, of any Hazardous Material; and (ii) there is no civil, criminal, or administrative action, suit, demand, claim, hearing, notice, or demand letter, notice of violation, investigation, or proceeding pending or, to the Borrower’s knowledge, threatened, against the Borrower or any of its Subsidiaries relating to any Environmental Laws.
(q)Investment Company; Public Utility Holding Company; EEA Financial Institution. Neither the Borrower nor any of its Subsidiaries is (i) an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended, (ii) subject to any other Applicable Law which purports to regulate or restrict its ability to borrow money or to consummate the transactions contemplated by this Agreement or to perform its obligations under any Loan Document to which it is a party, or (iii) an EEA Financial Institution.
(r)Margin Stock. Neither the Borrower nor any of its Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose, whether immediate, incidental or ultimate, of buying or carrying “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System, and not more than 25% of the value of the assets of the Borrower is comprised of margin stock.
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(s)Affiliate Transactions. Except as is not prohibited by Section 9.11, neither the Borrower nor any of its Subsidiaries is a party to any transaction with an Affiliate.
(t)Intellectual Property. The Borrower and each of its Subsidiaries owns or has the right to use, under valid license agreements or otherwise, all material patents, licenses, franchises, trademarks, trademark rights, service marks, service mark rights, trade names, trade name rights, trade secrets and copyrights (collectively, “Intellectual Property”) necessary to the conduct of its businesses as now conducted and as contemplated by the Loan Documents, without known conflict with any patent, license, franchise, trademark, trademark right, service mark, service mark right, trade secret, trade name, copyright or other proprietary right of any other Person; except where any such failure to own or to have the right to use Intellectual Property, or existence of a conflict with the rights of others, could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect. The Borrower and each of its Subsidiaries have taken all such steps as they deem reasonably necessary to protect their respective rights under and with respect to such Intellectual Property. No material claim has been asserted by any Person with respect to the use of any such Intellectual Property by the Borrower or any of its Subsidiaries, or challenging or questioning the validity or effectiveness of any such Intellectual Property. The use of such Intellectual Property by the Borrower and its Subsidiaries does not infringe on the rights of any Person, subject to such claims and infringements as do not, in the aggregate, give rise to any liabilities on the part of the Borrower or any of its Subsidiaries that could reasonably be expected to have a Material Adverse Effect.
(u)Business. As of the Agreement Date, the Borrower and its Subsidiaries are engaged in the business of acquiring, owning, leasing, making mortgage loans against, financing, managing and otherwise dealing in real estate (including, without limitation, Eligible Real Estate) and related personal property, together with other business activities incidental thereto.
(v)Broker’s Fees. Neither the Borrower nor any of its Subsidiaries have entered into any agreement providing for the payment of any broker’s or finder’s fee, commission or similar compensation with respect to the transactions contemplated hereby or any ancillary transactions. The foregoing does not include any agency, syndication or other fees permitted to be paid pursuant to the terms of this Agreement or the other Loan Documents.
(w)Accuracy and Completeness of Information. No written information, report or other papers or data (excluding financial projections and other forward looking statements) furnished to the Agent or any Lender by, on behalf of, or at the direction of, the Borrower or any of its Subsidiaries in connection with, pursuant to or relating in any way to this Agreement, contained any untrue statement of a fact material to the Borrower and its Subsidiaries taken as a whole or omitted to state a material fact necessary in order to make such statements contained therein, in light of the circumstances under which they were made, not misleading. All financial statements (including in each case all related schedules and notes) furnished to the Agent or any Lender by, on behalf of, or at the direction of the Borrower or any of its Subsidiaries in connection with, pursuant to or relating in any way to this Agreement, present fairly, in all material respects and in accordance with GAAP consistently applied throughout the periods involved, the financial position of the Persons involved as at the date thereof and the results of
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operations for such periods (subject, as to interim statements, to changes resulting from normal year-end audit adjustments). All financial projections and other forward looking statements prepared by or on behalf of the Borrower or any of its Subsidiaries that have been or may hereafter be made available to the Agent or any Lender were or will be prepared in good faith based on reasonable assumptions as of the date of such information; provided, however, the Agent and the Lenders recognize that such projections as to future events are not to be viewed as facts or guarantees of future performance and that actual results during the period or periods covered by any such projections may differ from the projected results. As of the Effective Date, no fact is known to the Borrower which has had, or may in the future have (so far as the Borrower can reasonably foresee), a Material Adverse Effect which has not been set forth in the financial statements referred to in Section 6.1(k) or in such information, reports or other papers or data or otherwise disclosed in writing to the Agent and the Lenders.
(x)REIT Status. The Borrower is a Maryland real estate investment trust duly organized pursuant to a Declaration of Trust filed with the Maryland Department of Assessments and Taxation, and is in good standing under the laws of Maryland. The Borrower conducts its business in a manner which enables it to qualify as a real estate investment trust under, and to be entitled to the benefits of, Section 856 of the Internal Revenue Code, and has elected to be treated as and is entitled to the benefits of a real estate investment trust thereunder. The Borrower (i) has all requisite power to own its property and conduct its business as now conducted and as presently contemplated, and (ii) is in good standing and duly authorized to do business in the jurisdictions where the Unencumbered Properties directly owned or leased by it are located and in each other jurisdiction where a failure to be so qualified in such other jurisdiction could have a materially adverse effect on the business, assets or financial condition of the Borrower. The Borrower has not taken any action that would prevent it from maintaining its qualification as a REIT for its tax year ending December 31, 2021, or as of the date of this Agreement, from maintaining such qualification at all times during the term of the Loan.
(y)SEC Filings. The Borrower has made all filings with and obtained all consents of the Securities and Exchange Commission as required, if any, under the Securities Act and the Securities Exchange Act in connection with the execution, delivery and performance by the Borrower of each of the Obligations incurred in connection with the Loan Documents.
(z)Foreign Assets Control. To the knowledge of the Borrower and the other Loan Parties after due inquiry, none of the Borrower, any Subsidiary or any Affiliate of the Borrower: (i) is a Sanctioned Person, (ii) directly or indirectly derives revenues from investments in, or transactions with, Sanctioned Persons, (iii) is located, organized or resident in a Designated Jurisdiction, or (iv) is or has been (within the previous five (5) years) engaged in any transaction with any Sanctioned Person or any Person who is located, organized or resident in any Designated Jurisdiction to the extent that such transactions would violate Sanctions. The Borrower, its Subsidiaries, and their respective officers and employees, and to the knowledge of the Borrower, their directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. No Loan or Letter of Credit, use of the proceeds of any Loan or Letter of Credit, or other transactions contemplated hereby has been used, directly or
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indirectly, or has otherwise been made available to fund any activity or business in any Designated Jurisdiction or to fund any activity or business with any Sanctioned Person, or in any other manner that will result in a violation by the Borrower or any Subsidiary thereof, or any Lender, or the Agent, of Anti-Corruption Laws or applicable Sanctions. The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance with the Anti-Corruption Laws and applicable Sanctions by the Borrower, its Subsidiaries, their respective directors, officers, employees, affiliates and agents and representatives of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from this Agreement. Neither the making of the Loans nor the use of the proceeds thereof will violate the Patriot Act, the Trading with the Enemy Act, as amended, or any of the foreign assets control regulations of the United States Treasury Department (31 C.F.R., Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto or successor statute thereto. The Borrower and its Subsidiaries are in compliance in all material respects with the Patriot Act.
(aa)Beneficial Ownership Certification. The information included in each Beneficial Ownership Certification is true and correct as of the date thereof. Borrower agrees that in connection with any amendment to this Agreement that it will, at least five (5) days prior to the closing date of such amendment, deliver to each Lender that so requests, a Beneficial Ownership Certification for any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation.
Section 6.2.Survival of Representations and Warranties, Etc.
All statements contained in any certificate, financial statement or other instrument delivered by or on behalf of the Borrower or any of its Subsidiaries to the Agent or any Lender pursuant to or in connection with this Agreement or any of the other Loan Documents (including, but not limited to, any such statement made in or in connection with any amendment hereto or thereto or any such statement contained in any certificate, financial statement or other instrument delivered by or on behalf of the Borrower or any of its Subsidiaries prior to the Agreement Date and delivered to the Agent or any Lender in connection with the underwriting or closing of the transactions contemplated hereby) shall constitute representations and warranties made by the Borrower in favor of the Agent or any of the Lenders under this Agreement. All representations and warranties made under this Agreement and the other Loan Documents shall be deemed to be made at and as of the Agreement Date, the Effective Date, and the date of the occurrence of any Credit Event, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date) and except for changes in factual circumstances not prohibited under the Loan Documents. All such representations and warranties shall survive the effectiveness of this Agreement, the execution and delivery of the Loan Documents and the making of the Loans and the issuance of the Letters of Credit.
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ARTICLE VII. - AFFIRMATIVE COVENANTS
For so long as this Agreement is in effect, unless the Required Lenders (or, if required pursuant to Section 12.6, all of the Lenders) shall otherwise consent in the manner provided for in Section 12.6, the Borrower shall comply with the following covenants:
Section 7.1.Preservation of Existence and Similar Matters.
    Except as otherwise permitted under Section 9.7, the Borrower shall, and shall cause each of its Subsidiaries to, preserve and maintain its respective existence, rights, franchises, licenses and privileges in the jurisdiction of its incorporation or formation and qualify and remain qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization and where the failure to so preserve or maintain or to be so authorized and qualified could reasonably be expected to have a Material Adverse Effect. Nothing in this Section 7.1 or Section 9.7 shall prohibit the Borrower or any Subsidiary of the Borrower from dissolving any Subsidiary that is not an Unencumbered Property Owner Subsidiary at the time of such dissolution.
Section 7.2.Compliance with Applicable Law and Material Contracts.
The Borrower shall, and shall cause each of its Subsidiaries to, comply with (a) all Applicable Laws, including the obtaining of all Governmental Approvals, the failure with which to comply could reasonably be expected to have a Material Adverse Effect, and (b) all terms and conditions of all Material Contracts to which it is a party. The Borrower shall maintain in effect and enforce policies and procedures designed to ensure compliance with the Anti-Corruption Laws and applicable Sanctions by the Borrower, its Subsidiaries, their respective directors, officers, employees, Affiliates and agents and representatives of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from this Agreement.
Section 7.3.Maintenance of Property.
In addition to the requirements of any of the other Loan Documents, the Borrower shall, and shall cause each of its Subsidiaries to, (a) protect and preserve all of its respective material properties, including, but not limited to, material Intellectual Property, and maintain in good repair, working order and condition all material tangible properties, ordinary wear and tear excepted, and (b) make or cause to be made all needed and appropriate repairs, renewals, replacements and additions to such properties, so that the business carried on in connection therewith may be properly and advantageously conducted at all times; provided, however, that nothing in this Section 7.3 shall impose any duty on the Borrower or any of its Subsidiaries to the extent that, pursuant to the terms of the applicable Leases or EPR Senior Property Loan Documents or other applicable lease or mortgage documents, the tenant or mortgagor, as applicable, with respect to the relevant property is obligated to perform such duties or whereby, pursuant to the terms of such documents, the Borrower or any of its Subsidiaries does not have the right to access such property or is otherwise prohibited from performing such duties.
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Section 7.4.Conduct of Business.
The Borrower and its Subsidiaries shall carry on their respective businesses as described in Section 6.1(u).
Section 7.5.Insurance.
The Borrower shall, and shall cause each of its Subsidiaries to, maintain insurance on its real property assets with financially sound and reputable insurance companies against such risks and in such amounts as is customarily maintained by Persons engaged in similar businesses or as may be required by Applicable Law; provided, however, that nothing in this Section 7.5 shall impose any duty on the Borrower or any of its Subsidiaries to maintain any such insurance to the extent that, pursuant to the terms of the applicable Leases or EPR Senior Property Loan Documents or other applicable lease or mortgage documents, the tenant or mortgagor, as applicable, is obligated to provide any such insurance or whereby such risks, or portions thereof, may be covered by self-insurance. The Borrower shall, and shall cause each of its Subsidiaries to, deliver to the Agent, upon its request from time to time, a detailed list, together with copies of all policies of the insurance then in effect, stating the names of the insurance companies, the amounts and rates of the insurance, the dates of the expiration thereof and the properties and risks covered thereby.
Section 7.6.Payment of Taxes and Claims.
The Borrower shall, and shall cause each of its Subsidiaries to, pay and discharge when due (a) all taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits or upon any properties belonging to it, and (b) all lawful claims of materialmen, mechanics, carriers, warehousemen and landlords for labor, materials, supplies and rentals which, if unpaid, might become a Lien (other than a Permitted Lien) on any properties of such Person; provided, however, that nothing in this Section or in Section 7.21 shall require the payment or discharge of any such tax, assessment, charge, levy or claim which is being contested in good faith by appropriate proceedings and for which adequate reserves have been established on the books of the applicable Borrower, or Subsidiary, in accordance with GAAP or if the failure to pay or discharge any such tax, assessment, charge or levy or claim, together with any associated interest, fines or penalties, could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
Section 7.7.Visits and Inspections.
The Borrower shall, and shall cause each of its Subsidiaries to, permit representatives or agents of any Lender or the Agent, from time to time after reasonable prior notice if no Event of Default shall be in existence, and as often as may be reasonably requested, but only during normal business hours, to: (a) visit and inspect all properties of the Borrower and its Subsidiaries to the extent any such right to visit or inspect is within the control of such Person; (b) inspect and make extracts from their respective books and records, including but not limited to management letters prepared by independent accountants; and (c) discuss with its officers and employees, and
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its independent accountants, its business, properties, condition (financial or otherwise), results of operations and performance. If requested by the Agent, the Borrower shall execute an authorization letter addressed to its accountants authorizing the Agent or any Lender to discuss the financial affairs of the Borrower or any of its Subsidiaries with its accountants. The exercise by the Agent or a Lender of its rights under this Section shall be at the expense of the Agent or such Lender, as the case may be, unless an Event of Default shall exist in which case it shall be at the expense of the Borrower.
Section 7.8.Use of Proceeds; Letters of Credit.
(a)The Borrower shall use the proceeds of the Loans and the Letters of Credit for general corporate purposes, including the repayment of the Indebtedness under the Existing Agreement, payment of closing costs and fees, the acquisition, renovation and improvement of real property, the making of mortgage loans against real property, and for other purposes consistent with the business activities described in Section 6.1(u).
(b)No part of the proceeds of any Loan or Letter of Credit will be used (i) directly or indirectly for any purpose that violates any rule or regulation of the Board of Governors of the Federal Reserve System, including Regulations T, U and X, or that violates any other applicable law, rule or regulation relating to "margin stock" within the meaning of such Regulation U; (ii) to finance any operations in, finance investments or activities in, or make any payments to, a Sanctioned Person or in any Designated Jurisdiction except to the extent permitted for a Person to comply with Sanctions; or (iii) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws.
Section 7.9.Environmental Matters.
The Borrower shall, and shall cause each of its Subsidiaries to, comply with all Environmental Laws the failure with which to comply could reasonably be expected to have a Material Adverse Effect. If the Borrower or any of its Subsidiaries: (a) receives notice that any violation of any Environmental Law may have been committed or is about to be committed by such Person, (b) receives notice that any administrative or judicial complaint or order has been filed or is about to be filed against the Borrower or any of its Subsidiaries alleging violations of any Environmental Law or requiring the Borrower or any of its Subsidiaries to take any action in connection with the release of Hazardous Materials or (c) receives any notice from a Governmental Authority or private party alleging that the Borrower or any of its Subsidiaries may be liable or responsible for costs associated with a response to or cleanup of a release of Hazardous Materials or any damages caused thereby, and the matters referred to in such notices, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, the Borrower shall provide the Agent with a copy of such notice promptly, and in any event within 10 Business Days, after the receipt thereof by the Borrower or any of its Subsidiaries. The Borrower shall, and shall cause each of its Subsidiaries to, take promptly all actions necessary to prevent the imposition of any Liens on any of their respective properties arising out
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of or related to any Environmental Laws (other than any such Liens that constitute Permitted Liens).
Section 7.10.Books and Records.
The Borrower shall, and shall cause each of its Subsidiaries to, maintain books and records pertaining to its respective business operations in such detail, form and scope as is consistent with good business practice and in accordance with GAAP. The Borrower and each other Loan Party will maintain its chief executive office at 909 Walnut Street, Suite 200, Kansas City, MO 64106, or at such other place in the United States of America as the Borrower shall designate prior to any such change in location by written notice to the Agent, where notices, presentations and demands to or upon the Borrower in respect of the Loan Documents may be given or made.
Section 7.11.Further Assurances.
The Borrower shall, at the Borrower’s cost and expense and upon request of the Agent, execute and deliver or cause to be executed and delivered, to the Agent such further instruments, documents and certificates, and do and cause to be done such further acts that may be reasonably necessary or advisable in the reasonable opinion of the Agent to carry out more effectively the provisions and purposes of this Agreement and the other Loan Documents.
Section 7.12.Replacement or Addition of Unencumbered Properties.
(a)After the Effective Date, the Borrower shall have the right, subject to the satisfaction by the Borrower of the other conditions set forth in this Section 7.12, to add Eligible Real Estate to the Unencumbered Pool (including, without limitation, Real Estate owned by a Subsidiary that, prior to such addition, was not an Eligible Subsidiary) or to replace any Unencumbered Property with new Eligible Real Estate. The addition or replacement of Eligible Real Estate to or for the then existing Unencumbered Property shall be referred to as “Unencumbered Property Replacement”. In the event the Borrower desires to effect an Unencumbered Property Replacement as aforesaid, the Borrower shall provide written notice to the Agent of such request (which the Agent shall promptly furnish to the Lenders). No Real Estate shall be included as Unencumbered Property unless and until the Agent determines that:
(i)such Real Estate is Eligible Real Estate;
(ii)after giving effect to the inclusion of such Real Estate, each of the representations and warranties made by or on behalf of the Borrower contained in this Agreement, the other Loan Documents or in any document or instrument delivered pursuant to or in connection with this Agreement shall be true in all material respects both as of the date as of which it was made and shall also be true as of the time of the replacement or addition of Unencumbered Properties, with the same effect as if made at and as of that time (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct
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only as of such specified date), and no Default or Event of Default shall have occurred and be continuing, and the Agent shall have received a certificate of the Borrower to such effect.
(iii)the Borrower shall pay any and all reasonable out-of-pocket expenses and costs, including attorneys’ fees, incurred by Agent in connection with review of the Real Estate.
Section 7.13.Removal of Unencumbered Property.
Provided no Default or Event of Default shall have occurred hereunder and be continuing (or would exist immediately after giving effect to the transactions contemplated by this Section 7.13), the Borrower shall be permitted to remove an Unencumbered Property from the Unencumbered Pool upon the request of the Borrower and subject to and upon the following terms and conditions:
(a)the Borrower shall deliver to the Agent written notice of its desire to remove such property not later than three (3) Business Days prior to the date on which such removal is to be effected;
(b)the Borrower shall submit to the Agent with such request a Compliance Certificate reflective of the contemplated transaction evidencing that the Borrower will remain in compliance with the covenants set forth in Section 9.1(f) and Section 9.1(g); and
(c)the Borrower shall pay all reasonable costs and expenses of the Agent in connection with such removal, including without limitation, reasonable attorney’s fees.
Section 7.14.Failure of Certain Unencumbered Assets Representations and Warranties.
If at any time the Borrower shall become aware that any representation set forth in this Agreement is no longer true and correct with respect to any Unencumbered Property in the Unencumbered Pool, the Borrower shall promptly notify the Agent in writing of such event, together with a detailed description of the factual circumstances giving rise thereto. In such event, the Agent may reasonably require that the Real Estate no longer be considered an Unencumbered Property for purposes hereof and require that such asset be removed from the Unencumbered Pool. Upon the determination that an asset shall no longer be considered an Unencumbered Property for purposes hereof, the provisions of Section 2.6(b) shall apply.
Section 7.15.Subsidiary Guaranty.
(a)Intentionally Omitted.
(b)If, after the Agreement Date, a Guaranty Trigger Event occurs with respect to any Subsidiary, the Borrower shall cause such Subsidiary to execute and deliver to the Agent, within 10 Business Days after the occurrence of such Guaranty Trigger Event, (i) a joinder to the Subsidiary Guaranty in the form of Exhibit A attached to the form of Subsidiary Guaranty (or if
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the Subsidiary Guaranty is not then in effect, a Subsidiary Guaranty in the form of Exhibit G attached hereto), and (ii) the organizational documents, certificates of good standing, resolutions and, if requested by the Agent, a legal opinion regarding such Subsidiary, unless any such Subsidiaries are not organized under the laws of the United States, any State thereof or the District of Columbia, all in form and substance reasonably satisfactory to the Agent and consistent with the corresponding items delivered by the Borrower under Section 5.1(a) of this Agreement. A "Guaranty Trigger Event" shall mean, with respect to any Subsidiary, such Subsidiary becomes obligated, in whole or in part, as a co-borrower or guarantor or the like with respect to any of the Bonds or any other unsecured Indebtedness of the Borrower for borrowed money. At the time any Subsidiary becomes a Subsidiary Guarantor, the Borrower shall be deemed to make to the Agent and the Lenders all of the representations and warranties (subject in all cases to all materiality qualifiers and other exceptions in such representations and warranties) contained in this Agreement and the other Loan Documents to the extent they apply to such Subsidiary Guarantor.
(c)If a Subsidiary becomes a Subsidiary Guarantor pursuant to Section 7.15(b) above, the Borrower may from time to time request, upon not less than two (2) Business Days' prior written notice to the Agent, that such Subsidiary Guarantor be released from the Subsidiary Guaranty, and upon receipt of such request the Agent shall release such Subsidiary Guarantor from the Subsidiary Guaranty, so long as: (i) such Subsidiary Guarantor is not, or immediately upon its release will not be, required to be a party to the Subsidiary Guaranty under Section 7.15(b) above; (ii) no Default or Event of Default will exist immediately following such release; and (iii) the representations and warranties (subject in all cases to all materiality qualifiers and other exceptions in such representations and warranties) contained in Article VI shall be true and correct as of the date of such release and immediately after giving effect to such release, except to the extent any such representation or warranty is stated to relate solely to an earlier date (in which case such representation or warranty shall have been true and correct on and as of such earlier date) and except for changes in factual circumstances not prohibited under the Loan Documents. Delivery by the Borrower to the Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request. The Agent shall execute such documents and instruments as the Borrower may reasonably request, and at the Borrower’s sole cost and expense, to evidence such release.
Section 7.16.[Reserved].
Section 7.17.REIT Status.
The Borrower shall at all times maintain its status as a REIT.
Section 7.18.Exchange Listing.
The Borrower shall maintain at least one class of common shares of the Borrower having trading privileges on the New York Stock Exchange, the Nasdaq stock market or the American
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Stock Exchange or which is the subject of price quotations in the over-the-counter market as reported by the National Association of Securities Dealers Automated Quotation System.
Section 7.19.Distributions of Income to the Borrower.
The Borrower shall cause its Subsidiaries to promptly distribute to the Borrower (but not less frequently than once each fiscal quarter of the Borrower, unless otherwise approved by the Agent), whether in the form of dividends, distributions or otherwise, all profits, proceeds or other income relating to or arising from its Subsidiaries’ use, operation, financing, refinancing, sale or other disposition of their respective assets and properties after (a) the payment by each Subsidiary of its debt service and operating expenses for such quarter and (b) the establishment of reasonable reserves for the payment of operating expenses not paid on at least a quarterly basis and capital improvements to be made to such Subsidiary’s assets and properties approved by such Subsidiary in the ordinary course of business consistent with its past practices, or reserves required under applicable loan covenants; provided however, that in the event that (i) an Event of Default shall have occurred and be continuing, and the maturity of the Obligations has been accelerated, or (ii) there shall have occurred and be continuing, an Event of Default under any of Section 10.1(a),