EX-10.25 6 irt-ex1025_390.htm EX-10.25 irt-ex1025_390.htm

Exhibit 10.25

Execution Version

FIRST AMENDMENT TO THE
TERM LOAN AGREEMENT AND OTHER LOAN DOCUMENTS

Dated as of June 18, 2019

FIRST AMENDMENT TO THE TERM LOAN AGREEMENT AND OTHER LOAN DOCUMENTS (this “Amendment”) among INDEPENDENCE REALTY OPERATING PARTNERSHIP, LP, a Delaware limited partnership (“Parent Borrower”), the Subsidiary Borrowers listed on the signature pages hereto, INDEPENDENCE REALTY TRUST, INC., a Maryland corporation (“Parent Guarantor”), KEYBANK NATIONAL ASSOCIATION, as administrative agent (“Agent”) for the Lenders, and the Lenders.

PRELIMINARY STATEMENTS:

(1)Parent Borrower, the Subsidiary Borrowers, Agent, the Lenders and the other financial institutions party thereto entered into that certain Term Loan Agreement dated as of October 30, 2018 (the “2018 Term Loan Agreement”) and, in connection with the 2018 Term Loan Agreement, Parent Guarantor delivered the Guaranty of even date therewith (the “Guaranty”).  Capitalized terms not otherwise defined in this Amendment have the same meanings as specified in the 2018 Term Loan Agreement, as amended hereby;

(2)In connection with the execution of that certain Amended and Restated Credit Agreement dated as of May 9, 2019 among Parent Borrower, the Subsidiary Borrowers, Agent, the lenders and other financial institutions party thereto, Agent, Parent Guarantor and Borrowers wish to amend the 2018 Term Loan Agreement and the Guaranty to address certain changes to the terms thereof as set forth below; and

(3)Borrowers, Parent Guarantor, Agent and the Lenders have agreed pursuant to §27 of the 2018 Term Loan Agreement to amend the 2018 Term Loan Agreement and the Guaranty on the terms and subject to the conditions hereinafter set forth.

SECTION 1Amendments to 2018 Term Loan Agreement.  (a) The 2018 Term Loan Agreement is, upon the occurrence of the Amendment Effective Date (as defined in Section 4 below), hereby amended to delete the stricken text (indicated textually in the same manner as the following example:  stricken text) and to add the underlined text (indicated textually in the same manner as the following example:  underlinedtext) as set forth in the pages of the 2018 Term Loan Agreement attached as Annex A (as so amended, the “Amended Term Loan Agreement”).

(b) The 2018 Term Loan Agreement is hereby further amended by deleting Exhibit E (Form of Compliance Certificate) in its entirety and replacing it with a new Exhibit E in the form of Annex B attached hereto.

SECTION 2Amendment to Guaranty.  The Guaranty is hereby amended by replacing clause (a) of Section 1 thereof in its entirety with the following:  “(a) all “Obligations” as defined


in the Loan Agreement, including, without limitation, all indebtedness and obligations owing by the Borrower to any of the Lenders or Agent under or in connection with the Loan Agreement and any other Loan Document, including any and all extensions, renewals, modifications, amendments, or substitutions of the foregoing, including without limitation, the repayment of all principal of the Loans made by the Lenders to the Borrower under the Loan Agreement and the payment of all interest, fees, charges, reasonable and documented attorneys’ fees and other amounts payable to any Lender or Agent thereunder or in connection therewith and”.

SECTION 3Representations and Warranties.  Each Loan Party hereby represents and warrants that:

(a) The representations and warranties contained in each of the Loan Documents (as amended or supplemented to date, including pursuant to this Amendment) to which it is a party are true and correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to an earlier date, in which case as of such earlier date).

(b) The execution, delivery and performance of this Amendment and the transactions contemplated hereby (i) are within the corporate or other organizational authority of the Loan Parties, (ii) have been duly authorized by all necessary actions on the part of the Loan Parties, (iii) do not and will not conflict with or result in any breach or contravention of any provision of law, statute, rule or regulation to which any Loan Party is subject or any judgment, order, writ, injunction, license or permit applicable to any Loan Party, in each case except as would not be reasonably likely to have a Material Adverse Effect, (iv) do not and will not conflict with or constitute a default (whether with the passage of time or the giving of notice, or both) under any provision of the partnership agreement, limited liability company agreement, articles of incorporation or other charter documents or bylaws of any Loan Party, (v) do not and will not result in or require the imposition of any lien or other encumbrance on any of the properties, assets or rights of any Loan Party other than Permitted Liens, and (vi) do not require the approval or consent of any Governmental Authority to be obtained by any Loan Party or any Affiliate thereof other than those already obtained and delivered to Agent or except as would not reasonably be likely to have a Material Adverse Effect.

(c) The execution and delivery of this Amendment are valid and legally binding obligations of the Loan Parties enforceable in accordance with the terms and provisions hereof, except as enforceability is limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting generally the enforcement of creditors’ rights and general principles of equity.

(d) The execution, delivery and performance of this Amendment and the transactions contemplated hereby do not require the approval or consent of, or filing or registration with, or the giving of any notice to, any court, department, board, governmental agency or authority other than those already obtained, in each case, except as would not be reasonably likely to result in a Material Adverse Effect.

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SECTION 4Conditions of Effectiveness.  This Amendment shall become effective as of the date first written above on the first date (the “Amendment Effective Date”) on which, and only if, Agent shall have received on or before the date hereof, each dated such day, in form and substance satisfactory to Agent, counterparts of this Amendment executed by each of the Loan Parties and each Lender.

SECTION 5Reference to and Effect on the 2018 Term Loan Agreement, the Notes and the Loan Documents.  This Amendment is a Loan Document.  On and after the effectiveness of this Amendment, each reference in the 2018 Term Loan Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the 2018 Term Loan Agreement, and each reference in the Notes and each of the other Loan Documents to “the Loan Agreement”, “thereunder”, “thereof” or words of like import referring to the 2018 Term Loan Agreement, shall mean and be a reference to the 2018 Term Loan Agreement, as amended and modified by this Amendment to read in the form of the Amended Term Loan Agreement attached as Annex A.

(a) This Amendment shall not extinguish the obligations for the payment of money outstanding under the 2018 Term Loan Agreement or the Amended Term Loan Agreement.  Nothing herein contained shall be construed as a substitution or novation of the obligations outstanding under the 2018 Term Loan Agreement, which shall remain in full force and effect, except to any extent modified hereby or as provided in the exhibits hereto.  Nothing implied in this Amendment or in any other document contemplated hereby shall be construed as a release or other discharge of any of the Loan Parties from the Loan Documents.

SECTION 6Ratification.  The 2018 Term Loan Agreement (as amended by this Amendment), the Guaranty (as amended by this Amendment) and each of the other Loan Documents are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed by each Loan Party.  Except as expressly provided in this Amendment, the execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any Lender or Agent under the 2018 Term Loan Agreement or any of the other Loan Documents, nor constitute a waiver of any provision of the 2018 Term Loan Agreement or any of the other Loan Documents.

SECTION 7Costs and Expenses.  Parent Borrower shall pay all reasonable and documented out-of-pocket costs and expenses of Agent to the extent provided in §15 of the 2018 Term Loan Agreement.

SECTION 8Execution in Counterparts.  This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement.  Delivery of an executed counterpart of a signature page to this Amendment by facsimile or as a .pdf, .jpeg, .TIF, .TIFF attachment to an electronic mail message or similar electronic format shall be effective as delivery of a manually executed counterpart of this Amendment.

SECTION 9Governing Law.  This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York.

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[Balance of page intentionally left blank.]

 

IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be executed by its duly authorized representatives as of the date first set forth above.

 

BORROWERS:

 

INDEPENDENCE REALTY OPERATING PARTNERSHIP, LP

 

By:Independence Realty Trust, Inc., its general partner

 

By:/s/ James Sabra
Name:James Sabra
Title:Chief Financial Officer

 

BAYVIEW CLUB APARTMENTS INDIANA, LLC,

BRIDGEVIEW APARTMENTS, LLC,

CHELSEA SQUARE APARTMENTS HOLDING COMPANY, LLC, CHERRY GROVE SOUTH CAROLINA, LLC,

HAVERFORD PLACE APARTMENTS OWNER, LLC,

HPI COLLIER PARK LLC,

HPI KENSINGTON COMMONS LLC,

HPI SCHIRM FARMS LLC

HPI RIVER CHASE LLC,

LAKES OF NORTHDALE APARTMENTS, LLC,

LUCERNE APARTMENTS TAMPA, LLC,

IRT LIVE OAK TRACE LOUISIANA, LLC,

SOUTH TERRACE APARTMENTS NORTH CAROLINA, LLC,

SPG AVALON APARTMENTS LLC, and

TIDES AT CALLABASH NORTH CAROLINA, LLC

 

By:Independence Realty Operating Partnership, LP,
the sole member of each of the foregoing entities

 

By:Independence Realty Trust, Inc., its general
partner

 

By:/s/ James Sabra
Name:James Sabra
Title:Chief Financial Officer

 

 

[SIGNATURES CONTINUE ON FOLLOWING PAGE]

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BSF-ARBORS RIVER OAKS, LLC,

BSF LAKESHORE, LLC,

BSF TRAILS, LLC,

FOX PARTNERS, LLC, and

MERCE PARTNERS, LLC

 

By:TS Manager, LLC, the manager of each of the
foregoing entities

 

By:IR TS Op Co, LLC, its sole member

 

By:Independence Realty Operating Partnership, LP,
its sole member

 

By:Independence Realty Trust, Inc., its general
partner

 

By:/s/ James Sabra
Name:James Sabra
Title:Chief Financial Officer

 

 

 

TS GOOSE CREEK, LLC,

TS MILLER CREEK, LLC,

TS VINTAGE, LLC, and

TS WESTMONT, LLC

 

By:IR TS Op Co, LLC, the sole member of each of
the foregoing entities

 

By:Independence Realty Operating Partnership, LP,
its sole member

 

By:Independence Realty Trust, Inc., its general
partner

 

By:/s/ James Sabra
Name:James Sabra
Title:Chief Financial Officer

 

 

[SIGNATURES CONTINUE ON FOLLOWING PAGE]


 


 

POINTE AT CANYON RIDGE, LLC

 

By:JLC/BUSF Associates, LLC, its sole member

 

By:TS Manager, LLC, its manager

 

By:IR TS Op Co, LLC, its sole member

 

By:Independence Realty Operating Partnership, LP,
its sole member

 

By:Independence Realty Trust, Inc., its general
partner

 

By:/s/ James Sabra
Name:James Sabra
Title:Chief Financial Officer

 

 

 

IRT OKC PORTFOLIO OWNERS, LLC

 

By:IRT OKC Portfolio Member, LLC, its sole
member and manager

 

By:Independence Realty Operating Partnership, LP,
its sole member

 

By:Independence Realty Trust, Inc., its general
partner

 

By:/s/ James Sabra
Name:James Sabra
Title:Chief Financial Officer

 

 

[SIGNATURES CONTINUE ON FOLLOWING PAGE]


 


 

GUARANTOR:

 

By:INDEPENDENCE REALTY TRUST,
INC
., a Maryland Corporation, its general partner

 

By:/s/ James Sabra
Name:James Sabra
Title:Chief Financial Officer

 

 

[SIGNATURES CONTINUE ON FOLLOWING PAGE]


 


 

AGENT AND LENDER:

 

KEYBANK NATIONAL ASSOCIATION, as a Lender and as Agent

 

 

By:/s/ Michael P. Szuba
Name:Michael P. Szuba
Title:Senior Vice President

 

 

[SIGNATURES CONTINUE ON FOLLOWING PAGE]


 


 

LENDER:

 

BANK OF AMERICA, N.A. , as a Lender

 

 

By:/s/ Helen Chan
Name:Helen Chan
Title:Vice President

 

 

[SIGNATURES CONTINUE ON FOLLOWING PAGE]


 


 

CAPITAL ONE, NATIONAL ASSOCIATION, as a Lender

 

 

By:/s/ Barbara Heubner
Name:Barbara Heubner
Title:Vice President

 

 

[SIGNATURES CONTINUE ON FOLLOWING PAGE]


 


 

CITIBANK, N.A., as a Lender

 

 

By:/s/ Christopher J. Albano
Name:Christopher J. Albano
Title:Authorized Signatory

 

 

[SIGNATURES CONTINUE ON FOLLOWING PAGE]


 


 

CITIZENS BANK, N.A., as a Lender

 

 

By:/s/ Nan E. Delahunt
Name:Nan E. Delahunt
Title:Vice President

 

 

 

[SIGNATURES CONTINUE ON FOLLOWING PAGE]


 


 

COMERICA BANK, as a Lender

 

 

By:/s/ Charles Weddell
Name:Charles Weddell
Title:Vice President

 

 

[SIGNATURES CONTINUE ON FOLLOWING PAGE]


 


 

PNC BANK, NATIONAL ASSOCIATION, as a Lender

 

 

By:/s/ Sheri L. Ruistenofer
Name:Sheri L. Ruistenofer
Title:Senior Vice President

 

 

[SIGNATURES CONTINUE ON FOLLOWING PAGE]


 


 

REGIONS BANK, as a Lender

 

 

By:/s/ C. Vincent Hughes, Jr.
Name:C. Vincent Hughes, Jr.
Title:Vice President

 

 

[SIGNATURES CONTINUE ON FOLLOWING PAGE]


 


 

SUNTRUST BANK, as a Lender

 

 

By:/s/ Nick Preston
Name:Nick Preston
Title:Director

 

 

 

 

 


Annex A

 

 

[See attached.]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

NYDOCS03/1108085

Annex A - 1

 

IRT – 2018 Term Loan First Amendment

 

 


ANNEX A TO FIRST AMENDMENT CONFORMED COPY REFLECTING

FIRST AMENDMENT dated as of June 18, 2019

Execution Version

TERM LOAN AGREEMENT

 

Dated as of October 30, 2018

 

AS AMENDED BY FIRST AMENDMENT TO TERM LOAN AGREEMENT AND OTHER LOAN

DOCUMENTS dated as of June 18, 2019

 

by and among

 

INDEPENDENCE REALTY OPERATING PARTNERSHIP, LP, AS PARENT BORROWER,

THE SUBSIDIARY BORROWERS PARTY HERETO, KEYBANK NATIONAL ASSOCIATION,

AS A LENDER,

 

THE OTHER LENDERS WHICH ARE PARTIES TO THIS AGREEMENT, OTHER LENDERS THAT MAY BECOME

PARTIES TO THIS AGREEMENT, AND

KEYBANK NATIONAL ASSOCIATION, AS AGENT,

WITH CITIBANK, N.A.,

AS SYNDICATION AGENT,

 

CITIBANK, N.A. and KEYBANC CAPITAL MARKETS, AS JOINT BOOKRUNNERS

AND

 

CITIBANK, N.A. and KEYBANC CAPITAL MARKETS, AS JOINT LEAD ARRANGERS

 

$200 MILLION SENIOR UNSECURED TERM LOAN

 

 


TABLE OF CONTENTS

 

§1DEFINITIONS AND RULES OF INTERPRETATION.1

§1.1Definitions1

§1.2Rules of Interpretation...................................................................................................... 2728

§2THE FACILITY................................................................................................................................ 2829

§2.1Loans................................................................................................................................ 2829

§2.2Notes ................................................................................................................................ 2829

§2.3Intentionally Omitted29

§2.4Intentionally Omitted29

§2.5Intentionally Omitted29

§2.6Interest on Loans29

§2.7Request for Loan .............................................................................................................. 2930

§2.8Funds for Loans30

§2.9Use of Proceeds................................................................................................................ 3031

§2.10Termination or Reduction of Commitments .................................................................... 3031

§2.11Increase in Commitments31

§2.12Intentionally Omitted ....................................................................................................... 3233

§2.13Intentionally Omitted ....................................................................................................... 3233

§3REPAYMENT OF THE LOANS. .................................................................................................... 3233

§3.1Stated Maturity................................................................................................................. 3233

§3.2Mandatory Prepayments................................................................................................... 3233

§3.3Optional Prepayments33

§3.4Partial Prepayments33

§3.5Effect of Prepayments ...................................................................................................... 3334

§3.6Sharing of Payments, Etc. ................................................................................................ 3334

§4CERTAIN GENERAL PROVISIONS.34

§4.1Conversion Options34

§4.2Fees .................................................................................................................................. 3435

§4.3[Reserved]35

§4.4Funds for Payments35

§4.5Computations ................................................................................................................... 3738

§4.6Suspension of LIBOR Rate Loans ................................................................................... 3738

§4.7Illegality ........................................................................................................................... 3839

§4.8Additional Interest............................................................................................................ 3839

§4.9Additional Costs, Etc.39

§4.10Capital Adequacy ............................................................................................................. 3940

§4.11Breakage Costs40

§4.12Default Interest; Late Charge40

§4.13Certificate40

§4.14Limitation on Interest....................................................................................................... 4041

§4.15Certain Provisions Relating to Increased Costs and Non-Funding Lenders .................... 4041

§4.16Intentionally Omitted ....................................................................................................... 4142

 

§5UNENCUMBERED ASSETS. ......................................................................................................... 4142

 

 


§5.1Initial Unencumbered Assets ........................................................................................... 4142

§5.2Addition of Unencumbered Assets .................................................................................. 4142

§5.3Failure of Unencumbered Asset Conditions .................................................................... 4142

§5.4Borrower Election to Remove Unencumbered Assets42

§5.5Release of Subsidiary Borrowers ..................................................................................... 4243

§5.6Additional Subsidiary Borrowers..................................................................................... 4243

§5.7Costs and Expenses of Additions and Removals ............................................................. 4243

 

§6REPRESENTATIONS AND WARRANTIES. ................................................................................ 4243

 

§6.1Corporate Authority, Etc. ................................................................................................. 4243

§6.2Governmental Approvals ................................................................................................. 4344

§6.3Title to Unencumbered Assets44

§6.4Financial Statements44

§6.5No Material Changes........................................................................................................ 4445

§6.6Beneficial Ownership....................................................................................................... 4445

§6.7Litigation.......................................................................................................................... 4445

§6.8No Material Adverse Contracts, Etc. ............................................................................... 4445

§6.9Compliance with Other Instruments, Laws, Etc.45

§6.10Tax Status45

§6.11No Event of Default ......................................................................................................... 4546

§6.12Investment Company Act................................................................................................. 4546

§6.13Absence of UCC Financing Statements, Etc.................................................................... 4546

§6.14EEA Financial Institutions ............................................................................................... 4546

§6.15Unencumbered Asset Conditions ..................................................................................... 4546

§6.16Employee Benefit Plans ................................................................................................... 4546

§6.17Disclosure46

§6.18Place of Business46

§6.19Regulations T, U and X46

§6.20Environmental Compliance.............................................................................................. 4647

§6.21Subsidiaries; Organizational Structure............................................................................. 4647

§6.22Leases............................................................................................................................... 4647

§6.23Property............................................................................................................................ 4647

§6.24Brokers47

§6.25Other Debt47

§6.26Solvency47

§6.27No Bankruptcy Filing47

§6.28No Fraudulent Intent ........................................................................................................ 4748

§6.29Transaction in Best Interests of Loan Parties; Consideration .......................................... 4748

§6.30OFAC ............................................................................................................................... 4748

§6.31REIT Status ...................................................................................................................... 4748

 

§7AFFIRMATIVE COVENANTS.48

§7.1Punctual Payment48

§7.2Maintenance of Office48

§7.3Records and Accounts48

§7.4Financial Statements, Certificates and Information ......................................................... 4849

§7.5Notices50

§7.6Existence; Maintenance of Properties51

§7.7Insurance .......................................................................................................................... 5152

§7.8Taxes; Liens ..................................................................................................................... 5253

§7.9Inspection of Unencumbered Assets and Books53

 

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§7.10Compliance with Laws, Contracts, Licenses, and Permits............................................... 5354

§7.11Further Assurances........................................................................................................... 5354

§7.12Beneficial Ownership Certification.................................................................................. 5354

§7.13[Reserved]54

§7.14Business Operations54

§7.15[Reserved]54

§7.16Ownership of Real Estate54

§7.17[Reserved]54

§7.18Plan Assets54

§7.19Parent Guarantor Covenants ............................................................................................ 5455

§7.20Transactions With Affiliates ............................................................................................ 5455

§7.21Keepwell .......................................................................................................................... 5455

 

§8NEGATIVE COVENANTS.55

§8.1Restrictions on Indebtedness55

§8.2Restrictions on Liens, Etc57

§8.3[Reserved] ........................................................................................................................ 5960

§8.4Merger, Consolidation...................................................................................................... 5960

§8.5[Reserved] ........................................................................................................................ 5960

§8.6Compliance with Environmental Laws ............................................................................ 5960

§8.7[Reserved] ........................................................................................................................ 6061

§8.8Asset Sales ....................................................................................................................... 6061

§8.9[Reserved] ........................................................................................................................ 6061

§8.10Restriction on Prepayment of Indebtedness ..................................................................... 6061

§8.11[Reserved]61

§8.12Derivatives Contracts61

§8.13[Reserved]61

§8.14[Reserved]61

§9FINANCIAL COVENANTS.61

 

§9.1Maximum Consolidated Leverage Ratio.......................................................................... 6162

§9.2Minimum Consolidated Fixed Charge Coverage Ratio ................................................... 6162

§9.3Minimum Consolidated Tangible Net Worth................................................................... 6162

§9.4Maximum Distributions ................................................................................................... 6162

§9.5Maximum Secured Leverage Ratio.................................................................................. 6162

 

§9.6

Maximum Secured Recourse Indebtedness........................................................................................................61[Reserved]

 

.............................................................................................................................................. 62

§9.7Maximum Unhedged Variable Rate Indebtedness62

§9.8Unencumbered Assets62

§9.9Maximum Unsecured Leverage Ratio62

§9.10Minimum Unencumbered Assets Debt Service Coverage Ratio62

 

§10CLOSING CONDITIONS.62

 

§10.1Loan Documents .............................................................................................................. 6263

§10.2Certified Copies of Organizational Documents ............................................................... 6263

§10.3Resolutions....................................................................................................................... 6263

§10.4Incumbency Certificate; Authorized Signers ................................................................... 6263

§10.5Opinion of Counsel63

§10.6Payment of Fees63

 

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§10.7Opinion of Agent’s Special Counsel63

§10.8Performance; No Default63

§10.9Representations and Warranties63

§10.10Proceedings and Documents63

§10.11KYC, Etc[Reserved]. ....................................................................................................... 6364

§10.12Compliance Certificate..................................................................................................... 6364

§10.13[Reserved]. ....................................................................................................................... 6364

§10.14Consents64

§10.15[Reserved]64

§10.16Other64

§11CONDITIONS TO ALL BORROWINGS.64

§11.1Prior Conditions Satisfied64

§11.2Representations True; No Default64

§11.3Borrowing Documents64

§11.4[Reserved]64

§12EVENTS OF DEFAULT; ACCELERATION; ETC. ....................................................................... 6465

 

§12.1Events of Default and Acceleration ................................................................................. 6465

§12.2Certain Cure Periods ........................................................................................................ 6667

§12.3Termination of Commitments .......................................................................................... 6667

§12.4Remedies67

§12.5Distribution of Loan Proceeds67

 

 

§13SETOFF.68

§14AGENT.68

§14.1Authorization68

§14.2Employees and Agents..................................................................................................... 6869

§14.3No Liability ...................................................................................................................... 6869

§14.4No Representations69

§14.5Payments .......................................................................................................................... 6970

§14.6Holders of Notes70

§14.7Indemnity70

§14.8Agent as Lender70

§14.9Resignation70

§14.10Duties in the Case of Enforcement................................................................................... 7071

§14.11Bankruptcy71

§14.12[Reserved]71

§14.13Reliance by Agent71

§14.14Approvals71

§14.15Borrowers Not Beneficiaries............................................................................................ 7172

§14.16Defaulting Lenders72

§14.17Reliance on Hedge Provider73

§14.18Certain ERISA Matters73

§15EXPENSES.74

§16INDEMNIFICATION....................................................................................................................... 7475

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§17SURVIVAL OF COVENANTS, ETC.75

§18ASSIGNMENT AND PARTICIPATION. ....................................................................................... 7576

§18.1Conditions to Assignment by Lenders ............................................................................. 7576

§18.2Register76

§18.3New Notes76

§18.4Participations.................................................................................................................... 7677

§18.5Pledge by Lender77

§18.6No Assignment by Loan Parties77

§18.7Disclosure......................................................................................................................... 7778

§18.8Titled Agents78

§18.9Amendments to Loan Documents78

§19NOTICES.78

§20RELATIONSHIP. ............................................................................................................................. 7879

§21GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE.79

§22HEADINGS.79

§23COUNTERPARTS.79

§24ENTIRE AGREEMENT, ETC. ........................................................................................................ 7980

§25WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS............................................... 7980

§26DEALINGS WITH THE LOAN PARTIES.80

§27CONSENTS, AMENDMENTS, WAIVERS, ETC.80

§28SEVERABILITY.81

§29TIME OF THE ESSENCE................................................................................................................ 8182

§30NO UNWRITTEN AGREEMENTS................................................................................................. 8182

§31REPLACEMENT NOTES.82

§32NO THIRD PARTIES BENEFITED.82

§33PATRIOT ACT.82

§34RESERVED. ..................................................................................................................................... 8283

§35JOINT AND SEVERAL LIABILITY. ............................................................................................. 8283

§36ADDITIONAL AGREEMENTS CONCERNING OBLIGATIONS OF THE BORROWERS....... 8283

§36.1Attorney-in-Fact............................................................................................................... 8283

§36.2Accommodation ............................................................................................................... 8283

§36.3Waiver of Automatic or Supplemental Stay83

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§36.4Waiver of Defenses83

§36.5Waiver85

§36.6Subordination85

§37ACKNOWLEDGMENT OF BENEFITS; EFFECT OF AVOIDANCE PROVISIONS.85

§38RECOURSE PROVISIONS. ............................................................................................................ 8687

§39ACKNOWLEDGEMENT AND CONSENT TO BAIL-IN OF EEA FINANCIAL

INSTITUTIONS.87

§40ACKNOWLEDGEMENT REGARDING ANY SUPPORTED QFCs.87

 

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EXHIBITS AND SCHEDULES

 

Exhibit AFORM OF NOTE

Exhibit BFORM OF JOINDER AGREEMENT

Exhibit CFORM OF REQUEST FOR LOAN

Exhibit DFORM OF AVAILABILITY CERTIFICATE

Exhibit EFORM OF COMPLIANCE CERTIFICATE

Exhibit FFORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT Exhibit GFORM OF SUBSIDIARY BORROWER RELEASE

Schedule 1.1-ALENDERS AND COMMITMENTS Schedule 1.1-BDISQUALIFIED LENDERS

Schedule 5.1INITIAL UNENCUMBERED ASSETS Schedule 6.3LIST OF ALL ENCUMBRANCES ON ASSETS Schedule 6.5NO MATERIAL CHANGES

Schedule 6.7PENDING LITIGATION Schedule 6.20ENVIRONMENTAL MATTERS

Schedule 6.21(a)PARENT BORROWER SUBSIDIARIES Schedule 6.23PROPERTY CONDITION; OPTIONS Schedule 8.1SPECIFIED INDEBTEDNESS

Schedule 19NOTICE ADDRESSES

 

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TERM LOAN AGREEMENT

 

THIS TERM LOAN AGREEMENT (as amended by that certain First Amendment to Term Loan Agreement and Other Loan Documents dated as of June 18, 2019) is made as of the 30th day of October, 2018, by and among INDEPENDENCE REALTY OPERATING PARTNERSHIP, LP, a Delaware limited partnership (“Parent Borrower”), the Subsidiary Borrowers party hereto from time to time, KEYBANK NATIONAL ASSOCIATION (together with any successor in interest, “KeyBank”), as an initial Lender, the other lending institutions which are parties to this Agreement as “Lenders”, the other lending institutions that may become parties hereto pursuant to §18 and KEYBANK NATIONAL ASSOCIATION, as administrative agent for Lenders (“Agent”), with CITIBANK, N.A., as Syndication Agent (the “Syndication Agent”), CITIBANK, N.A. and KEYBANK CAPITAL MARKETS, as Joint Bookrunners (collectively, “Bookrunners”) and CITIBANK, N.A. and KEYBANK CAPITAL MARKETS, as Joint Lead Arrangers (collectively, “Arrangers”).

 

R E C I T A L S

 

WHEREAS, the Borrowers have requested that Lenders provide a term loan facility to the Borrowers;

and

 

WHEREAS, Agent and Lenders are willing to provide such term loan facility on and subject to the terms and conditions set forth herein; and

 

WHEREAS, each Guarantor is willing to guaranty all of the Obligations of the Borrowers pursuant to this Agreement and the other Loan Documents on the terms and conditions set forth in the Guaranty to which it is a party;

 

NOW, THEREFORE, in consideration of the recitals herein and mutual covenants and agreements contained herein, the parties hereto hereby covenant and agree as follows:

 

§1DEFINITIONS AND RULES OF INTERPRETATION.

 

§1.1   Definitions.  The following terms shall have the meanings set forth in this §1 or elsewhere in  the provisions of this Agreement referred to below:

 

1031 Cash”: Cash or Cash Equivalents of a Loan Party constituting “like-kind exchange” proceeds under Section 1031 of the Code, held in escrow in accordance with the requirements of Section 1031 of the Code by a Qualified Intermediary (a) with respect to which such Loan Party is the sole beneficiary and (b) that are not subject to any Liens of any kind (including any such Lien or restriction imposed by (i) any agreement governing Indebtedness and (ii) the organizational documents of the Loan Parties or any of  their  respective  Subsidiaries) and, in each case, that (1) are not subject to any agreement (including (x) any agreement governing Indebtedness and (y) if applicable, the organizational documents of the Loan Parties or any of their respective Subsidiaries) which prohibits or limits the ability of the Parent Guarantor or any of its Subsidiaries to create, incur, assume or suffer to exist any Lien upon such assets (excluding any agreement or organizational document which limits generally the amount of Indebtedness which may be incurred by the Parent Guarantor or its Subsidiaries), and (2) are not subject to any agreement (including any agreement governing Indebtedness) which entitles any Person to the benefit of any Lien on such assets, or would entitle any Person to the benefit of any such Lien upon the occurrence of any contingency (including, without limitation, pursuant to an “equal and ratable” clause); but excluding, in each case, customary agreements under which the Qualified Intermediary acts in connection with such like-kind exchange and establishing that the Qualified Intermediary acts at the direction of the applicable Loan Party.

 

“2017 Term Loan Agreement”: That certain Term Loan Agreement dated as of November 20, 2017, as amended by the First Amendment to Term Loan Agreement and Other Loan Documents dated as of June 18,

 

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2019, among Parent Borrower, KeyBank National Association, as administrative agent, the other lenders and the Borrowers party thereto, with Capital One, National Association and The Huntington National Bank, as syndication agents, KeyBanc Capital Markets, Capital One, National Association and The Huntington National Bank, as bookrunners and KeyBanc Capital Markets, Capital One, National Association and The Huntington National Bank, as arrangers.

 

Acceding Lender”: See §2.11(a).

 

Accession Agreement”: See §2.11(c).

 

Additional Commitment Request Notice”: See §2.11(a).

 

Additional Subsidiary Borrower”: Each additional Subsidiary of Parent Borrower which becomes a Subsidiary Borrower pursuant to §5.6.

 

Adjusted EBITDA”: On any date of determination, Consolidated EBITDA less, with respect to Real Estate owned by any Person in the Consolidated Group, the Capital Expenditure Reserve, and, with respect to Real Estate owned by Non-Wholly Owned Subsidiaries, the Consolidated Group Pro Rata Share of the Capital Expenditure Reserve.

 

Affected Lender”: See §4.15.

 

Affiliate”: An Affiliate, as applied to any Person, shall mean 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 fifty percent (50%) 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 (i) a general partnership interest, (ii) a managing member’s or manager’s interest in a limited liability company or (iii) a limited partnership interest or preferred stock (or other ownership interest) representing fifty percent (50%) or more of the outstanding limited partnership interests, preferred stock or other ownership interests of such Person.

 

Agent”: KeyBank National Association, acting as administrative agent for Lenders, and its successors and assigns.

 

Agent’s Head Office”: Agent’s head office located at 127 Public Square, Cleveland, Ohio 44114- 1306, or at such other location as Agent may designate from time to time by notice to the Borrowers and Lenders.

 

Agent’s Special Counsel”: Shearman & Sterling LLP or such other counsel as selected by Agent.

 

Agreement”: This Term Loan Agreement, as the same may be amended, modified, supplemented and/or extended from time to time, including the Schedules and Exhibits hereto.

 

Agreement Regarding Fees”: Any separate letter agreement executed and delivered by Parent Borrower or an Affiliate of Parent Borrower and to which Agent or an Arranger is a party, as the same may be amended, restated or replaced from time to time.

 

Allocable Principal Balance”: See §37(b).

 

Anti-Corruption Laws”: All laws, rules, and regulations of any jurisdiction applicable to any Borrower or its Subsidiaries from time to time concerning or relating to bribery or corruption.

 

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Applicable Margin”: (a) The Applicable Margin for LIBOR Rate Loans and Base Rate Loans shall, subject to the last sentence of this paragraph, be as set forth below based on the Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate pursuant to §7.4(c):

 

 

Pricing Level

Consolidated Leverage Ratio

LIBOR

Rate Loans

Base Rate Loans

Pricing Level 1

Less than 40%

1.20%

0.20%

 

 

Pricing Level 2

 

Greater than or equal to 40% but less than 45%

 

 

1.25%

 

 

0.25%

 

 

Pricing Level 3

 

Greater than or equal to 45% but less than 50%

 

 

1.35%

 

 

0.35%

Pricing Level 4

Greater than or equal to 50% but less than 55%

1.45%

 

0.45%

Pricing Level 5

Greater than or equal to 55% but less than or equal to 60%

1.70%

 

0.70%

Pricing Level 6

Greater than 60%

1.90%

0.90%

 

 

The Applicable Margin shall not be adjusted based upon such Consolidated Leverage Ratio, if at all, until (i) the first day of the next fiscal quarter following receipt of any updated Compliance Certificate or (ii) if any member of the Consolidated Group issues Equity Interests, the second Business Day following Agent’s receipt of a pro forma Compliance Certificate that takes into account such issuance of Equity Interests and any repayment of Indebtedness from the proceeds thereof. In the event that Parent Borrower shall fail to deliver to Agent a quarterly Compliance Certificate on or before the date required by §7.4(c), then without limiting any other rights of Agent and Lenders under this Agreement, the Applicable Margin for the Loan shall be at Pricing Level 6 commencing on the first (1st) Business Day following the date on which such Compliance Certificate was required to have been delivered and shall remain in effect until such failure is cured, in which event the Applicable Margin shall adjust, if necessary, on the first (1st) day of the first (1st) month following receipt of such Compliance Certificate. The Applicable Margin in effect from the Closing Date through the date of the next change in the Applicable Margin pursuant to the provisions hereof shall be determined based upon Pricing Level 4. The provisions of this definition shall be subject to §2.6(c).

 

(b) In the event that Parent Guarantor achieves an Investment Grade Rating, Parent Borrower may, upon written notice to Agent, make an irrevocable (subject to the provisions of the paragraph following the grid below) written election (setting forth the date such election shall be effective) to exclusively use the ratings-based pricing grid set forth below (a “Ratings Grid Election”), in which case the Applicable Margin for LIBOR Rate Loans and Base Rate Loans will be determined, as per the pricing grid below, on the basis of the Debt Rating of Parent Guarantor as set forth below:

 

 

 

 

Debt Rating

LIBOR

Rate Loans

Base Rate Loans

 

 

>A-/A30.85%0.00%

 

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BBB+/Baa1

0.90%

0.00%

BBB/Baa2

1.00%

0.00%

BBB-/Baa3

1.25%

0.25%

<BBB-/Baa3

1.65%

0.65%

 

 

If Parent Borrower has made the Ratings Grid Election as provided above but thereafter Parent Guarantor fails to maintain an Investment Grade Rating by at least one of S&P or Moody’s, then the applicable interest rate margin shall be determined pursuant to clause (a) above during the period commencing on the date Parent Guarantor no longer has an Investment Grade Rating by at least one of S&P or Moody’s and ending on the date Parent Borrower makes another Ratings Grid Election.

 

Approved Fund”: Any Fund that is administered or managed by (a) a Lender, or (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

 

Arrangers”: As defined in the recital of parties hereto.

 

Assignment and Acceptance Agreement”: See §18.1.

 

Authorized Officer”: Any of the following Persons: Scott F. Schaeffer, Farrell M. Ender, James J. Sebra and Jessica K. Norman, and such other Persons as Parent Borrower shall designate in a written notice to Agent.

 

Availability Certificate”: See §2.7.

 

Bail-In Action”: The exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

 

Bail-In Legislation”: With respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

 

Balance Sheet Date”: December 31, 2017.

 

Bankruptcy Code”: Title 11, U.S.C.A., as amended from time to time or any successor statute thereto.

 

Base Rate”: The greater of (a) the Applicable Margin for Base Rate Loans, plus the greater of (i) the fluctuating annual rate of interest announced from time to time by Agent at Agent’s Head Office as its “prime rate”, or (ii) one half of one percent (0.50%) above the Federal Funds Effective Rate, or (b) the sum of LIBOR with an Interest Period of one (1) month (based on the then applicable LIBOR determined for such Interest Period) plus the then Applicable Margin for LIBOR Rate Loans; provided, however, that if the Base Rate shall be less than zero percent per annum, such rate shall be deemed to be zero percent per annum for purposes of this Agreement. The Base Rate is a reference rate and does not necessarily represent the lowest or best rate being charged to any customer. Any change in the rate of interest payable hereunder resulting from a change in the Base Rate shall become effective as of the opening of business on the day on which such change in the Base Rate becomes effective, without notice or demand of any kind. If the Base Rate is being used as an alternate rate of interest pursuant to §4.6(a), then the Base Rate shall be equal to the higher of clauses (a)(i) and (a)(ii) above and shall be determined without reference to clause (b) above.

 

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Base Rate Loans”: Loans bearing interest calculated by reference to the Base Rate, subject to the provisions of §2.6(b).

 

Beneficial Ownership Certification”: If any Borrower qualifies as a “legal entity customer” within the meaning of the Beneficial Ownership Regulation, a certification of beneficial ownership as required by the Beneficial Ownership Regulation.

 

Beneficial Ownership Regulation”: 31 C.F.R. § 1010.230.

 

Benefit Plan”: Any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.

 

“BHC Act Affiliate: See §40.

 

Bookrunners”: As defined in the recital of parties hereto.

 

Borrower Information”: See §2.6(e).

 

Borrowers”: Collectively, Parent Borrower and the Subsidiary Borrowers, and individually any of

them.

 

Breakage Costs”: The commercially reasonable cost to any Lender of re-employing funds bearing interest at LIBOR incurred (or reasonably expected to be incurred) in connection with (i) any payment of any portion of the Loans bearing interest at LIBOR prior to the termination of any applicable Interest Period, (ii) the conversion of a LIBOR Rate Loan to any other applicable interest rate on a date other than the last day of the relevant Interest Period, or (iii) the failure of a Borrower to draw down, on the first day of the applicable Interest Period, any amount as to which such Borrower has elected a LIBOR Rate Loan.

 

Building”: With respect to each Unencumbered Asset or parcel of Real Estate, all of the buildings, structures and improvements now or hereafter located thereon.

 

Business Day”: Any day on which banking institutions located in the same city and State as Agent’s Head Office are located are open for the transaction of banking business and, in the case of LIBOR Rate Loans, which also is a LIBOR Business Day.

 

Capital Expenditure Reserve”: On an annual basis, an amount equal to $250.00 per unit for each Multifamily Property with respect to all Real Estate (as annualized for the applicable ownership period). If the term Capital Expenditure Reserve is used without reference to any specific Real Estate, then the amount shall be determined on an aggregate basis with respect to all Real Estate of the Borrowers and their Subsidiaries and a proportionate share equal to the Consolidated Group Pro Rata Share of all Real Estate of all Non-Wholly Owned Subsidiaries.

 

Capitalization Rate”: Six percent (6.00%).

 

“Capital Lease Obligations”: With respect to Parent Guarantor and its Subsidiaries for any period, the obligations of Parent Guarantor or any Subsidiary to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as liabilities on a balance sheet of Parent Guarantor and its Subsidiaries under GAAP and the amount of which obligations shall be the capitalized amount thereof determined in accordance with GAAP.

 

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Capitalized Lease”: A lease under which the discounted future rental payment obligations of the lessee or the obligor are required to be capitalized on the balance sheet of such Person in accordance with GAAP.

 

Cash Equivalents”: As of any date, (i) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof), maturing not more than one year after the date of acquisition; (ii) time deposits in and certificates of deposit of any Eligible Bank; (iii) repurchase obligations with a term of not more than ninety (90) days for underlying securities of the types described in clause (i) above entered into with any Eligible Bank; (iv) direct obligations issued by any state of the United States or any political subdivision or public instrumentality thereof; provided that such Investments mature, or are subject to tender at the option of the holder thereof, within three hundred sixty-five (365) days after the date of acquisition and, at the time of acquisition, have a rating of at least A from S&P or A-2 from Moody’s (or an equivalent rating by any other nationally recognized rating agency); (v) commercial paper of any Person other than an Affiliate of Parent Borrower; provided that such Investments have one of the two highest ratings obtainable from either S&P or Moody’s and mature within ninety (90) days after the date of acquisition; (vi) overnight and demand deposits in and bankers’ acceptances of any Eligible Bank and demand deposits in any bank or trust company to the extent insured by the Federal Deposit Insurance Corporation against the Bank Insurance Fund; and (vii) money market funds substantially all of the assets of which comprise Investments of the types described in clauses (i) through

 

(vi)

above.

 

CERCLA”: The Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. 9601 et seq.

 

CFTC Regulations”: Any and all regulations, rules, directives, or orders now or hereafter promulgated or issued by the Commodity and Futures Trading Commission (including any successor thereto) relating to Derivatives Contracts.

 

Change in Law”: The occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided, that, notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) 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 regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

 

Change of Control”: The occurrence of any one of the following events:

 

(a)except with the written approval of Agent and Required Lenders (not to be unreasonably withheld, delayed, or conditioned), during any twelve (12) month period on or after the Closing Date, individuals who at the beginning of such period constituted the Board of Directors or Trustees of Parent Guarantor (the “Board”) (together with any new directors whose election by the Board or whose nomination for election by the shareholders of IRT was approved by a vote of at least a majority of the members of the Board then in office who either were members of the Board at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason (other than death or disability) to constitute a majority of the members of the Board then in office;

 

(b)any Person or group (as that term is used in Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the rules and regulations thereunder, but excluding any employee benefit plan of such Person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) shall have acquired beneficial ownership (within the meaning

 

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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 Parent Guarantor equal to at least thirty percent (30%);

 

(c)Parent Guarantor consolidates with, is acquired by, or merges into or with any Person (other than a consolidation or merger in which IRT is the continuing or surviving entity);

 

(d)Parent Guarantor fails to own, directly or indirectly, seventy-five percent (75%) of the Equity Interests of Parent Borrower and be the sole general partner of Parent Borrower; or

 

(e)Parent Borrower fails to own, directly or indirectly, at least one hundred percent (100%) of the economic, voting and beneficial interest of each Subsidiary Borrower, except, in each case, as expressly agreed upon in writing by Agent and Required Lenders in connection with the addition of any Unencumbered Asset subsequent to the Closing Date pursuant to §5.2.

 

Closing Date”: The first date on which all of the conditions set forth in §10 and §11 have been satisfied.

 

Code”: The Internal Revenue Code of 1986, as amended.

 

Collateral Value”: With respect to the collateral for any Secured Recourse Indebtedness, the value of such collateral as calculated in a manner in all respects consistent with the valuation calculations set forth in the definition of “Gross Asset Value”.

 

Commitment”: As to each Lender, its obligation to make Loans to the Borrowers pursuant to §2.1(a), in an amount up to, but not exceeding, the amount set forth for such Lender on Schedule 1.1 attached hereto as such Lender’s “Commitment Amount” or as set forth in the applicable Assignment and Acceptance Agreement or Accession Agreement, as the same may be increased or decreased from time to time or terminated in accordance with the terms of this Agreement.

 

Commitment Increase”: An increase in the aggregate Commitments to an amount not greater than Four Hundred Million Dollars ($400,000,000) pursuant to, and as further provided in, §2.11 or §2.13.

 

Commitment Increase Date”: See §2.11(a).

 

Commitment Percentage”: As to each Lender, the ratio, expressed as a percentage, of (a) (i) the amount of such Lender’s Commitment plus (ii) the amount of such Lender’s Outstanding Loans to (b) (i) the Commitments of all Lenders plus (iii) the sum of the Outstanding Loans of all Lenders; provided, however, that if at the time of determination the 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 Exposure of such Lender to (B) the sum of the aggregate unpaid principal amount of all outstanding Exposure of all Lenders as of such date.

 

Commodity Exchange Act”: The Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended and in effect from time to time, or any successor law.

 

Compliance Certificate”: See §7.4(c).

 

Consent Request Date”: See §27.

 

Consolidated”: With reference to any term defined herein, that term as applied to the accounts of a Person and its Subsidiaries, determined on a consolidated basis in accordance with GAAP.

 

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Consolidated Asset NOI”: As of any date of determination, on a consolidated basis for the Consolidated Group (a) with respect to any Real Estate owned by any Person in the Consolidated Group for any period, “property rental and other income” attributable to such Real Estate asset accruing for such period (including, without limitation, payments received from insurance on account of business or rental interruption and condemnation proceeds from any temporary use or occupancy) minus the amount of all expenses incurred in connection with and directly attributable to the ownership and operation of such Real Estate asset for such period, with such results being “grossed up” for any Real Estate not owned for the entire testing period, and (b) with respect to Real Estate owned by Non-Wholly Owned Subsidiaries for any period, the Consolidated Group Pro Rata Share of “property rental and other income” attributable to such Real Estate asset accruing for such period (including, without limitation, payments received from insurance on account of business or rental interruption and condemnation proceeds from any temporary use or occupancy) minus the amount of all expenses incurred in connection with and directly attributable to the ownership and operation of such Real Estate asset for such period, in each case including, without limitation, property management fees and amounts accrued for the payment of real estate taxes and insurance premiums, but excluding Interest Expense or other debt service charges and any non-cash charges such as depreciation or amortization of financing costs plus acquisition costs for consummated acquisitions.

 

Consolidated EBITDA”: As of any date of determination with respect to the Consolidated Group for any period, without duplication, Consolidated Net Income determined in accordance with GAAP (before minority interests) for such period, calculated without regard to gains or losses on early retirement of debt or debt restructuring, debt modification charges, and prepayment premiums, plus (x) the following to the extent deducted in computing such net income or loss for such period: (i) Interest Expense for such period, (ii) extraordinary or nonrecurring losses attributable to the sale or other disposition of assets or debt restructurings in such period, (iii) depreciation and amortization for such period, (iv) acquisition costs related to the acquisition of Real Estate that were capitalized prior to FAS 141-R which do not represent a recurring cash item in such period or in any future period and (v) other non-cash or non-recurring expenses for such period; and minus (y) extraordinary or nonrecurring gains attributable to the sale or other disposition of assets in such period; it being understood that the Consolidated Group’s pro rata share of the items comprising Consolidated EBITDA of any partially-owned entity will be included in Consolidated EBITDA, calculated in a manner consistent with the above described treatment for the Consolidated Group.

 

Consolidated Fixed Charge Coverage Ratio”: As of any date of determination for each fiscal quarter of Parent Guarantor and its Subsidiaries most recently ended, the ratio of Adjusted EBITDA to Fixed Charges.

 

Consolidated Group”: The Guarantors, the Borrowers and all Subsidiaries which are required to be consolidated with them for financial reporting purposes under GAAP.

 

Consolidated Group Pro Rata Share”: With respect to any Non-Wholly Owned Subsidiary, the percentage interest held by the Consolidated Group, in the aggregate, in such Non-Wholly Owned Subsidiary as determined by calculating the greater of (i) the percentage of the issued and outstanding Equity Interests in such Non-Wholly Owned Subsidiary held by the Consolidated Group in the aggregate (in relation to the total aggregate amount of issued and outstanding Equity Interests in such Non-Wholly Owned Subsidiary), notwithstanding any provision of GAAP to the contrary and (ii) the percentage of the total book value of such Non-Wholly Owned Subsidiary that would be received by the Consolidated Group in the aggregate, upon liquidation of such Non-Wholly Owned Subsidiary, after repayment in full of all Indebtedness of such Non- Wholly Owned Subsidiary.

 

Consolidated Leverage Ratio”: As of any date of determination, Total Indebtedness divided by Gross Asset Value, expressed as a percentage.

 

Consolidated Net Income”: For any period, the sum, without duplication, of (i) net earnings (or loss) after taxes of the Consolidated Group (adjusted by eliminating any such earnings or loss attributable to Non- Wholly Owned Subsidiaries) plus (ii) the applicable Consolidated Group Pro Rata Share of net earnings (or loss)

 

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of all Non-Wholly Owned Subsidiaries for such period, in each case determined in accordance with GAAP (calculated without regard to gains or losses on early retirement of debt or debt restructuring, debt modification charges, and prepayment premiums).

 

Consolidated Tangible Net Worth”: At any time, the Consolidated Group’s Gross Asset Value minus

Total Indebtedness.

 

Contribution”: See §37(b).

 

Construction in Process”: Any Real Estate asset owned by a Borrower which is raw land, vacant out- parcels, or other property on which construction of material improvements has commenced and is continuing to be performed (such commencement evidenced by foundation excavation) without undue delay from permit denial, construction delays or otherwise, but has not yet been completed (as evidenced by a certificate of occupancy permitting use of such property by the general public). A Real Estate asset will no longer be considered Construction in Process upon the sooner of (a) achievement of eighty percent (80%) occupancy pursuant to executed Leases in full force and effect or (b) twelve (12) months after substantial completion of construction of the improvements.

 

“Contribution”: See §37(b).

 

Conversion/Continuation Request”: A notice given by the Borrowers to Agent of their election to convert or continue a Loan in accordance with §4.1.

 

“Covered Entity: See §40.

 

“Covered Party”: See §40.

 

Debt Investment”: Any real estate related loan to a third party, including but not limited to (a) loans secured by a mortgage or deed of trust or similar security instrument, (b) mezzanine loans, and (c) B-Notes.

 

Debt Rating”: As of any date, with respect to either Moody’s or S&P, the most recent credit rating assigned to the senior, unsecured, non-credit enhanced, long-term debt of Parent Guarantor issued by such rating agency prior to such date; provided, however, that (a) if the Debt Ratings issued by Moody’s and S&P differ and such difference is less than two levels, the higher of such Debt Ratings shall apply and (b) if the Debt Ratings issued by Moody’s and S&P differ and such difference is two or more levels, the Debt Rating one level below the higher of such Debt Ratings shall apply. At any time, if either of Moody’s or S&P shall no longer perform the functions of a securities rating agency, then (x) Parent Borrower and Agent shall promptly negotiate in good faith to agree upon a substitute rating agency or agencies (and to correlate the system of ratings of each substitute rating agency with that of the rating agency being replaced), and (y) pending such amendment, (i) the Debt Rating of the other of rating agency described herein, if one has been provided, shall continue to apply and (ii) if such Debt Rating is one of the ratings identified in the definition of “Investment Grade Rating”, then Parent Guarantor will be deemed to have achieved an Investment Grade Rating during such time.

 

“Deemed FFE Rate”: See §4.6(b).

 

Default”: See §12.1.

 

Default Rate”: See §4.12.

 

“Default Right”: See §40.

 

Defaulting Borrower”: See §37(c).

 

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Defaulting Lender”: Any Lender that (a) has failed to perform any of its funding obligations hereunder, including in respect of its Loans, within three (3) Business Days of the date required to be funded by it hereunder, unless such Lender is contesting its obligation to fund such amount in good faith, provided that if such Lender is the only Lender contesting its obligation to fund, such Lender shall be deemed to be a Defaulting Lender hereunder if such contest is not resolved within ninety (90) days, (b) has notified the Borrower, or Agent that it does not intend to comply with its funding obligations or has made a public statement to that effect with respect to its funding obligations hereunder or under other agreements in which it has extended credit, (c) has failed, within three Business Days after request by Agent, to confirm in a manner reasonably satisfactory to Agent that it will comply with its funding obligations, unless such Lender is contesting its obligation to fund in good faith, provided that if such Lender is the only Lender contesting its obligation to fund, such Lender shall be deemed to be a Defaulting Lender hereunder if such contest is not resolved within ninety (90) days, (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any bankruptcy or other debtor relief law, (ii) had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment or (iv) has 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.

 

Delayed Draw Loans”: See §2.1(b).

 

Delayed Draw Period”: The period commencing on the Closing Date and ending on the date occurring 364 days following the Closing Date.

 

Derivatives Contract”: 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” 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.

 

Directions”: See §14.14.

 

“Disqualified Lender”: Any Person or Persons listed on Schedule 1.1-B hereto.

 

Disqualifying Environmental Event”: With respect to any Unencumbered Asset or any Potential Unencumbered Asset, any release of Hazardous Substances, any violation of Environmental Laws or any other similar environmental event with respect to such Real Estate that could reasonably be expected to cost in excess of $1,000,000.00 to remediate or, which, with respect to all of the Unencumbered Assets (including such Unencumbered Asset or Potential Unencumbered Asset), could reasonably be expected to cost in excess of

$5,000,000.00 in the aggregate to remediate; provided, however, the Borrowers shall have one hundred twenty

(120)days to remediate any such release of Hazardous Substances, violation of Environmental Laws or any other similar environmental event before such release of Hazardous Substances, violation of Environmental Laws or any other similar environmental event shall be deemed a Disqualifying Environmental Event; provided further that, subject to Agent’s consent, the Borrowers shall have an additional sixty (60) days to conduct such remediation if the Borrowers are using good faith efforts to complete such remediation.

 

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Disqualifying Structural Event”: With respect to any Unencumbered Asset or any Potential Unencumbered Asset, any structural issue or architectural deficiency which, with respect to such Real Estate, could reasonably be expected to cost in excess of $2,500,000.00 to remediate or, which, with respect to all of the Unencumbered Assets (including such Unencumbered Asset or Potential Unencumbered Asset), could reasonably be expected to cost in excess of $5,000,000.00 in the aggregate to remediate.

 

Disqualified Lender”:  Any Person or Persons listed on Schedule 1.1-B hereto.

 

Distribution”: Any (a) dividend or other distribution, direct or indirect, on account of any Equity Interest of a Loan Party, now or hereafter outstanding, except a dividend or other distribution payable solely in Equity Interest to the holders of that class; (b) redemption, conversion, exchange, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any Equity Interest of a Loan Party now or hereafter outstanding; and (c) payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire any Equity Interests of a Loan Party now or hereafter outstanding.

 

Division” and “Divide”: A division of a limited liability company into two or more newly formed or existing limited liability companies pursuant a plan of division or otherwise.

 

Dollars” or “$”: Dollars in lawful currency of the United States of America.

 

Domestic Lending Office”: Initially, the office of each Lender designated as such on Schedule 1.1 hereto; thereafter, such other office of such Lender, if any, located within the United States that will be making or maintaining Base Rate Loans.

 

EEA Financial Institution”: (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”: Any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

 

EEA Resolution Authority”: Any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

 

Eligible Assignee”: (a) A Lender; (b) an Affiliate of a Lender; (c) an Approved Fund, and (d) any other Person (other than a natural person) approved by (i) Agent, and (ii) unless an Event of Default has occurred and is continuing, the Borrowers (each such approval not to be unreasonably withheld or delayed); provided that notwithstanding the foregoing, “Eligible Assignee” shall not include (x) any Borrower or any of the Borrowers’ or the Guarantors’ Affiliates or Subsidiaries and (y) so long as no payment or bankruptcy related Event of Default shall have occurred and is continuing, any Disqualified Lender.

 

Eligible Bank”: A bank or trust company that (x) (i) is organized and existing under the laws of the United States of America, or any state, territory or possession thereof, (ii) as of the time of the making or acquisition of an Investment in such bank or trust company, has combined capital and surplus in excess of

$500.0500 million, and (iii) the senior Indebtedness of such bank or trust company is rated at least “A-2” by Moody’s or at least “A” by S&P, or (y) is a Lender.

 

Environmental Laws”: All applicable present or future federal, state, county and local laws, by-laws, rules, regulations, codes and ordinances, or any judicial or administrative interpretations thereof, and the requirements of any governmental agency or authority having jurisdiction with respect thereto, applicable to

 

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pollution, the regulation or protection of the environment, the health and safety of persons and property (with respect to exposure to Hazardous Substances) and shall include, but not be limited to, all orders, decrees, judgments and rulings imposed through any public or private enforcement proceedings, relating to the existence, use, discharge, release, containment, transportation, generation, storage, management or disposal of Hazardous Substances relating to the applicable Real Estate, or otherwise regulating or providing for the protection of the environment applicable to such Real Estate and relating to Hazardous Substances or to the existence, use, discharge, release or disposal thereof. Environmental Laws include, but are not limited to, the following laws: Comprehensive Environmental Response Compensation and Liability Act (42 U.S.C. §9601 et seq.), the Hazardous Materials Transportation Act (49 U.S.C. §5101 et seq.), the Public Health Service Act (42 U.S.C.

§300(f) et seq.), the Pollution Prevention Act (42 U.S.C. §13101 et seq.), the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. §136 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. §6901 et seq.), the Federal Clean Water Act (33 U.S.C. §1251 et seq.), the Federal Clean Air Act (42 U.S.C. §7401 et seq.), and the applicable laws and regulations of each State in which any Real Estate is located.

 

Equity Interests”: 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, 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.

 

ERISA”: The Employee Retirement Income Security Act of 1974, as amended and in effect from time

to time.

 

ERISA Affiliate”: Any Person that is subject to ERISA and is treated as a single employer with Parent Borrower or its Subsidiaries under §414 of the Code.

 

ERISA Reportable Event”: A reportable event with respect to a Guaranteed Pension Plan within the meaning of §4043 of ERISA and the regulations promulgated thereunder as to which the requirement of notice has not been waived.

 

EU Bail-In Legislation Schedule”: The EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.

 

Event of Default”: See §12.1.

 

Excluded Swap Obligation”: With respect to any Loan Party, any Hedge Obligation of another Loan Party as to which such Loan Party is jointly and severally or otherwise liable (as a Borrower or as a Guarantor) pursuant to the terms of this Agreement or any other Loan Document if, and to the extent that, the incurrence of Obligations by such Loan Party in respect of such Hedge Obligation is or becomes illegal under the Commodity Exchange Act (or the application or official interpretation thereof, including under any applicable CFTC Regulation) by virtue of such Loan Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to any “keepwell,” support or other agreement for the benefit of such Loan Party and any and all guarantees of, or other credit support for, any Hedge Obligation provided by other Loan Parties as further provided in §7.21 at the time such Loan Party becomes jointly and severally or otherwise liable with respect to such Hedge Obligation or grants a security interest to secure same. If a Hedge Obligation arises under a Derivatives Contract governing more than one Hedge Obligation, such exclusion shall apply only to the portion of such Hedge Obligation that is attributable to a Derivatives Contract for which such Hedge Obligation or security interest becomes illegal.

 

Existing Credit Agreement”: That certain Amended and Restated Credit Agreement dated as of May 19, 2017, as amended through the Closing Date2019, among Parent Borrower, KeyBank National Association,

 

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as administrative agent, the other lenders and the Borrowers party thereto, with Citigroup Global Markets Inc.Citibank, N.A. and The Huntington National Bank, as co-syndication agents, Bank of America, N.A., Capital One, National Association, Citizens Bank, N.A., Comerica Bank and, PNC Bank, National Association, Regions Bank and SunTrust Bank, as co-documentation agents and Citigroup Global, Citibank, N.A. and KeyBanc Capital Markets Inc, as joint bookrunners and Citibank, N.A., KeyBanc Capital Markets and The Huntington National Bank, as joint lead arrangers.

 

Existing Term Loan Agreement”: That certain Term Loan Agreement dated as of November 20, 2017, as amended through the Closing Date, among Parent Borrower, KeyBank National Association, as administrative agent, the other lenders and the Borrowers party thereto, with Capital One, National Association and The Huntington National Bank, as co-syndication agents and KeyBanc Capital Markets, Capital One, National Association and The Huntington National Bank, as arrangers.

 

Exposure”: The aggregate Loans held by the Lenders.

 

Facility”: At any time, the Loans which the Lenders have agreed to make or issue (or participate in such issuance) in accordance with the terms of this Agreement in the aggregate amount of the Commitments at such time.

 

Facility Amount”: The initial Two Hundred Million Dollar ($200,000,000.00) term loan facility (including the Initial Loans and the Delayed Draw Loans), plus any increase thereto pursuant to §2.11 or decreased pursuant to §3.2.

 

FATCA”: Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b) of the Code and any legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the foregoing.

 

Federal Funds Effective Rate”: For any day, the rate per annum (rounded upward to the nearest one- hundredth of one percent (1/100 of 1%)) announced by the Federal Reserve Bank of New York on such day as being the weighted average of the rates on overnight federal funds transactions arranged by federal funds brokers on the previous trading day, as computed and announced by such Federal Reserve Bank in substantially the same manner as such Federal Reserve Bank computes and announces the weighted average it refers to as the “Federal Funds Effective Rate”; provided that if the Federal Funds Effective Rate shall be less than zero percent per annum, such rate shall be deemed to be zero percent per annum for purposes of this Agreement.

 

Fixed Charges”: For any period for the Consolidated Group, the sum of (a) Interest Expense and (b) the aggregate of all regularly scheduled principal payments on Indebtedness (but excluding (i) balloon payments of principal due upon the stated maturity of any Indebtedness and (ii) payments of principal outstanding under the Facility) of such the Consolidated Group made or required to be made during such period, measured on a Consolidated basis, and (c) the aggregate of all dividends payable on the preferred Equity Interests of a member of the Consolidated Group (excluding, for the avoidance of doubt, any dividends payable by one member of the Consolidated Group to another member of the Consolidated Group); in each instance Fixed Charges shall include such Person’s Consolidated Group Pro Rata Share of Fixed Charges attributable to any Non-Wholly Owned Subsidiary.

 

Fund”: Any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.

 

Funding Borrower”: See §37(b).

 

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Funds from Operations”: As of any date of determination means, with respect to Consolidated Group and for a given period, (a) net income (or loss) of Consolidated Group determined on a Consolidated basis for such period, minus (or plus) (b) gains (or losses) from debt restructuring, mark-to-market adjustments on interest rate swaps, and sales of property during such period, plus (c) depreciation with respect to Consolidated Group’s real estate assets and amortization (other than amortization of deferred financing costs) of Consolidated Group for such period, in each case after adjustments to reflect the Consolidated Group Pro Rata Share in Non-Wholly Owned Subsidiaries, plus (d) all non-cash charges related to deferred financing costs and deferred acquisition costs, plus (e) charges related to equity compensation and acquisition costs, plus (f) other one-time charges.

 

GAAP”: Generally accepted accounting principles consistently applied.

 

Governmental Authority”: The government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

 

Gross Asset Value”: As of the date of determination for the Consolidated Group, the sum of (without duplication with respect to any Real Estate):

 

 

(a)

Total Consolidated Operating Property Value; plus

 

 

(b)

the cost basis of Construction in Process; plus

 

 

(c)

the cost basis of Unimproved Land; plus

 

 

(d)

Debt Investments (based on current book value); plus

 

 

(e)

the aggregate amount of all Unrestricted Cash and Cash Equivalents.

 

Gross Asset Value shall be adjusted, as appropriate, for acquisitions, dispositions and other changes to the portfolio during the calendar quarter most recently ended prior to a date of determination. All income, expense and value associated with assets included in Gross Asset Value disposed of during the calendar quarter period most recently ended prior to a date of determination will be eliminated from calculations. Gross Asset Value will be adjusted to include an amount equal to each member of the Consolidated Group’s Consolidated Group Pro Rata Share of the Gross Asset Value attributable to any of the items listed above in this definition owned by a Non-Wholly Owned Subsidiary; provided, however, for purposes of this definition, such Consolidated Group Pro Rata Share with respect to partially-owned entities shall be measured at the greater of

(x) such Person’s economic interest in such Non-Wholly Owned Subsidiary or (y) the percentage of Indebtedness guaranteed by such Person relating to such Non-Wholly Owned Subsidiary; provided further that (a) to the extent that the Gross Asset Value attributable to (i) Unimproved Land, (ii) Construction in Process, (iii) Joint Ventures and (iv) Other Real Estate Investments exceeds in the aggregate 20% of Gross Asset Value, such excess shall be disregarded for purposes of calculating Gross Asset Value and (b) the Gross Asset Value attributable to Real Estate subject to a Ground Lease may be subject to an adjustment reasonably satisfactory to Agent.

 

Ground Lease”: With respect to any Real Estate, a ground lease containing the following terms and conditions: (a) a remaining term (including any unexercised extension options that the lessee can unilaterally exercise without the need to obtain the consent of the lessor or to pay the lessor any amount as a condition to the effectiveness of such extension) of fifteen (15) years or more from the Closing Date; (b) the right of the lessee to mortgage and encumber its interest in the leased property without the consent of the lessor; (c) the obligation of the lessor to give the holder of any mortgage Lien on such leased property written notice of any defaults on the part of the lessee and agreement of such lessor that such lease will not be terminated until such holder has had a reasonable opportunity to cure or complete foreclosures, and fails to do so; (d) reasonable transferability

 

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of the lessee’s interest under such lease, including ability to sublease; and (e) such other rights customarily required by mortgagees making a loan secured by the interest of the holder of the leasehold estate demised pursuant to a ground lease.

 

Guarantors”: Collectively, (a) Parent Guarantor and (b) any other Person who subsequently provides a Guaranty.

 

Guaranty”: The guaranty of each Guarantor in favor of Agent and Lenders of certain of the Obligations of the Borrowers hereunder.

 

Hazardous Substances”: The following substances in concentrations that violate or are regulated by Environmental Laws: (i) asbestos, flammable materials, explosives, radioactive or nuclear substances, polychlorinated biphenyls, other carcinogens, oil and other petroleum products, radon gas, urea formaldehyde;

(ii)chemicals, gases, solvents, pollutants or contaminants that pose an imminent or substantial danger to the environment or to the health or safety of any person; and (iii) any other hazardous or toxic materials, wastes and substances which are defined, determined or identified as such in any present or future federal, state or local laws, rules, regulations, codes or ordinances or any judicial or administrative interpretation thereof in concentrations which violate Environmental Laws.

 

Hedge Obligations”: As may be applicable at any time, all obligations of the Borrowers to any Lender Hedge Provider to make any payments (including termination payments) under any Derivatives Contract with respect to an interest rate swap, collar, or floor or a forward rate agreement or other agreement regarding the hedging of interest rate risk exposure (other than any interest rate “cap”), and any confirming letter executed pursuant to such hedging agreement, all as amended, restated or otherwise modified.

 

ICE LIBOR”: See §4.6(b).

 

Impacted Interest Period”: See definition of LIBOR.

 

Implied Unsecured Debt Service”: As of any date of determination, the hypothetical annual payments of principal and interest on a loan equal to (a) the aggregate outstanding amount of all Unsecured Indebtedness (including the aggregate undrawn face amount of issued letters of credit) amortizing based on a thirty (30) year, mortgage-style principal amortization schedule at an interest rate per annum equal to the greatest of (i) the then applicable ten (10) year Treasury Bill yield plus two hundred (200) basis points, (ii) five and one half percent (5.50%), and (iii) the actual interest rate under the Facility as of the last day of the most recent calendar quarter.

 

Increase Notice”: See §2.11(a).

 

Indebtedness”: With respect to any Person at the time of computation thereof, all of the following (without duplication): (a) all indebtedness of such Person for borrowed money including, without limitation, any repurchase obligation or liability of such Person with respect to securities, accounts or notes receivable sold by such Person that becomes a liability on the balance sheet of such Person, (b) all obligations of such Person for the deferred purchase price of property or services (other than current trade liability incurred in the ordinary course of business and payable in accordance with customary practices), to the extent such obligations constitutes indebtedness for the purposes of GAAP, (c) any other indebtedness of such Person which is evidenced by a note, bond, debenture, or similar instrument, (d) all CapitalizedCapital Lease Obligations, (e) all Indebtedness of other Persons which such Person has guaranteed or is otherwise recourse to such Person (except for guaranties of customary exceptions for fraud, misapplication of funds, environmental indemnities, violation of “special purpose entity” covenants, and other similar exceptions to recourse liability until a written claim is made with respect thereto, and then shall be included only to the extent of the amount of such claim), including liability of a general partner in respect of liabilities of a partnership in which it is a general partner which would constitute Indebtedness hereunder, (f) any obligation to supply funds to or in any manner to invest directly or indirectly in a Person, to maintain working capital or equity capital of a Person or otherwise to maintain net worth, solvency

 

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or other financial condition of a Person, to purchase indebtedness, or to assure the owner of indebtedness against loss, including, without limitation, through an agreement to purchase property, securities, goods, supplies or services for the purpose of enabling the debtor to make payment of the indebtedness held by such owner or otherwise (excluding in any calculation of Total Indebtedness of Parent Borrower, any Guarantor and their subsidiaries, guaranty obligations of Parent Borrower, any Guarantor or their subsidiaries in respect of primary obligations of any of Parent Borrower, any Guarantor or their subsidiaries which are already included in Total Indebtedness), (g) all reimbursement obligations of such Person for letters of credit and other contingent liabilities, (h) any net mark-to-market exposure under a derivatives contract to the extent speculative in nature and (i) all liabilities secured by any lien (other than liens for taxes not yet due and payable) on any property owned by such Person even though such Person has not assumed or otherwise become liable for the payment thereof. Indebtedness shall be calculated on a consolidated basis in accordance with GAAP (unless otherwise indicated herein), and including (without duplication) the Consolidated Group Pro Rata Share of Indebtedness for the Borrowers’ Non-Wholly Owned Subsidiaries.

 

Indemnified Person”: See §16.

 

Initial Loans”: See §2.1(a).

 

Intercompany Note”: A promissory note in form and substance reasonably satisfactory to Agent.

 

Interest Expense”: For any period for the Consolidated Group, all paid, accrued or capitalized interest expense on the Indebtedness of the Consolidated Group (whether direct, indirect or contingent, and including, without limitation, interest on all convertible debt but excluding amortization of financing costs). This definition will include the Consolidated Group Pro Rata Share of Interest Expense attributable to Non-Wholly Owned Subsidiaries.

 

Interest Payment Date”: (a) during such time as a Loan is a Base Rate Loan, the last day of each March, June, September and December and on the date such Base Rate Loan shall be converted to a LIBOR Rate Loan or paid in full, (b) during such time as a Loan is a LIBOR Rate Loan, the last day of the applicable Interest Period and, if such Interest Period has a duration of more than three months, on each day that occurs during such Interest Period every three months from the first day of such Interest Period and on the date such LIBOR Rate Loan shall be converted to a Base Rate Loan or paid in full; provided, however, that in each case, if such date is not a Business Day, then the Interest Payment Date shall be the next succeeding Business Day.

 

Interest Period”: With respect to each LIBOR Rate Loan (a) initially, the period commencing on the Closing Date of such LIBOR Rate Loan and ending one, two, three or six months after the 17th calendar day of the month in which the Closing Date occurs and (b) thereafter, each period commencing on the day following the last day of the next preceding Interest Period applicable to such Loan and ending on the last day of one of the periods set forth above, as selected by the Borrowers in the Loan Request or Conversion/Continuation Request; provided that all of the foregoing provisions relating to Interest Periods are subject to the following:

 

(i)if any Interest Period with respect to a LIBOR Rate Loan would otherwise end on a day that is not a LIBOR Business Day, such Interest Period shall end on the next succeeding LIBOR Business Day, unless such next succeeding LIBOR Business Day occurs in the next calendar month, in which case such Interest Period shall end on the next preceding LIBOR Business Day, as determined conclusively by Agent in accordance with the then current bank practice in London, England;

 

(ii)if the Borrowers shall fail to give notice as provided in §4.1(a), the Borrowers shall be deemed to have requested a continuation of the affected LIBOR Rate Loan as a LIBOR Rate Loan for an interest period of one month on the last day of the then current Interest Period with respect thereto as provided in and subject to the terms of §4.1(c);

 

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(iii)any Interest Period pertaining to a LIBOR Rate Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the applicable calendar month; and

(iv)no Interest Period relating to any LIBOR Rate Loan shall extend beyond the Maturity Date. “Interpolated Rate”: At any time, for any Interest Period, the rate per annum (rounded to the same

number of decimal places as LIBOR) determined by 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) the LIBOR for the shortest period for which that LIBOR is available that exceeds the Impacted Interest Period, in each case, at such time.

 

Investment Grade Rating”: A Debt Rating of BBB- or better from S&P or a Debt Rating of Baa3 or better from Moody’s.

 

Investments”: 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 all interests in Real Estate, 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 deducted in respect of each Investment any amount received as a return of capital; (b) there shall not be deducted in respect of any Investment any amounts received as earnings on such Investment, whether as dividends, interest or otherwise; and (c) there shall not be deducted (or added) in respect of any Investment any decrease (or increase) in the value thereof.

 

IR OpCo”: IR TS Op Co, LLC a Delaware limited liability company, as successor by conversion to Trade Street Operating Partnership, L.P., a Delaware limited partnership.

 

IRT”: Independence Realty Trust, Inc., a Maryland corporation, and its successors and assigns.

 

Joinder Agreement”: The Joinder Agreement with respect to this Agreement and the Notes to be executed and delivered pursuant to §5.6 by any Additional Subsidiary Borrower, such Joinder Agreement to be substantially in the form of Exhibit B hereto.

 

KeyBank”: As defined in the preamble hereto.

 

Leases”: Leases, licenses and agreements, whether written or oral, relating to the use or occupation of space in any Building or of any Real Estate.

 

Legal Requirements”: Shall mean all applicable federal, state, county and local laws, rules, regulations, codes and ordinances, and the requirements in each case of any governmental agency or authority having or claiming jurisdiction with respect thereto, including, but not limited to, those applicable to zoning, subdivision, building, health, fire, safety, sanitation, the protection of the handicapped, and environmental matters and shall also include all orders and directives of any court, governmental agency or authority having or claiming jurisdiction with respect thereto.

 

Lenders”: KeyBank, the other lending institutions which are party hereto and any Acceding Lender and any other Person which becomes an assignee of any rights of a Lender pursuant to §18 (but not including any participant as described in §18).

 

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Lender Hedge Provider”: As may be applicable at any time with respect to any Hedge Obligations, any counterparty thereto that, at the time the applicable hedge agreement was entered into, was a Lender or an Affiliate of a Lender.

 

LIBOR”: For any LIBOR Rate Loan 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 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 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 with respect to any LIBOR Rate Loan that has not been identified by Parent Borrower as being subject to an interest rate swap; 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 with respect to any LIBOR Rate Loan that has not been identified by Parent Borrower as being subject to an interest rate swap if any Interpolated Rate shall be less than zero percent per annum, such rate shall be deemed to be zero percent per annum 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 Agent, the applicable LIBOR for the relevant Interest Period shall instead be the rate determined by 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 Rate Loan and having a maturity equal to such Interest Period. For any period during which a Reserve Percentage shall apply, LIBOR with respect to LIBOR Rate Loans shall be equal to the amount determined above divided by an amount equal to one (1) minus the Reserve Percentage.

 

LIBOR Business Day”: Any day on which commercial banks are open for international business (including dealings in Dollar deposits) in London, England.

 

LIBOR Lending Office”: Initially, the office of each Lender designated as such on Schedule 1.1 hereto; thereafter, such other office of such Lender, if any, that shall be making or maintaining LIBOR Rate Loans.

 

LIBOR Rate Loans”: All Loans bearing interest calculated by reference toat a rate based on LIBOR.

 

Lien”: See §8.2.

 

Loan” and “Loans”: An individual loan or the aggregate loans, as the case may be, to be made by Lenders hereunder, including the Initial Loans and the Delayed Draw Loans. All Loans shall be made in Dollars.

 

Loan Documents”: This Agreement, the Notes, the Guaranty, the Joinder Agreements and all other documents, instruments or agreements now or hereafter executed or delivered by or on behalf of the Borrowers in connection with the Loans and intended to constitute a Loan Document.

 

Loan Party”: Means Parent Borrower, each Subsidiary Borrower, and each Guarantor individually and Loan Parties means those parties collectively.

 

Loan Request”: See §2.7.

 

Material Acquisition”: The acquisition by any member of the Consolidated Group, in a single transaction or in a series of related transactions, of either (a) all or any substantial portion of the property of, or

 

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a line of business or division of, or any other property of, another Person or (b) at least a majority of the voting Equity Interests of another Person, in each case whether or not involving a merger or consolidation with such other Person, in which the value of the assets acquired in such acquisition is greater than or equal to five percent (5.0%) of Gross Asset Value as determined as of the most recent fiscal quarter which has ended at least thirty

(30) days prior to such acquisition.

 

Material Adverse Effect”: A material adverse effect on (a) the business, properties, assets, financial condition or results of operations of the Consolidated Group considered as a whole; (b) the ability of the Loan Parties (taken as a whole) to perform their material obligations, respectively, under the Loan Documents; or (c) the validity or enforceability of any of the material Loan Documents or the material rights or remedies of Agent or Lenders thereunder.

 

Maturity Date”: January 17, 2024, or such earlier date on which the Loans shall become due and payable or the Facility is terminated pursuant to the terms hereof.

 

Maximum Facility Amount”: The maximum aggregate amount of the Facility, which amount shall be Two Hundred Million Dollars ($200,000,000.00) as of the Closing Date, plus any increase thereto pursuant to

§2.11 or decreased pursuant to §3.1 or §3.2.

 

Moody’s”: Moody’s Investor Service, Inc., and any successor thereto.

 

Multiemployer Plan”: Any multiemployer plan within the meaning of §3(37) of ERISA maintained or contributed to by any Borrower or any ERISA Affiliate.

 

Multifamily Property”: Any real property that contains or that will contain more than one hundred

(100) dwelling units and in which no more than five percent (5%) of the net rentable area is rented to, or to be rented to, non-residential tenants.

 

Negative Pledge” With respect to any asset, any provision of a document, instrument or agreement (other than a Loan Document) which by its terms prohibits the creation or assumption of any Lien on such asset as security for Indebtedness of the Person owning such asset or any other Person; provided, however, that (a) an agreement that conditions a Person’s ability to encumber its assets upon the maintenance of one or more specified ratios that limit such Person’s ability to encumber its assets but that do not generally prohibit the encumbrance of its assets, or the encumbrance of specific assets, shall not constitute a Negative Pledge, and (b) a provision in any agreement governing unsecured Indebtedness generally prohibiting the encumbrance of assets (exclusive of any outright prohibition on the encumbrance of particular Unencumbered Assets) shall not constitute a Negative Pledge so long as such provision is generally consistent with a comparable provision of the Loan Documents.

 

Non-Consenting Lender”: See §18.

 

Non-Excluded Taxes”: See §4.4(b).

 

Non-Funding Lender”: See §4.15.

 

Non-Recourse Exclusions”: With respect to any Non-Recourse Indebtedness of any Person, any industry standard exclusions from the non-recourse limitations governing such Indebtedness, including, without limitation, exclusions for claims that (i) are based on fraud, intentional misrepresentation, misapplication or misappropriation of funds, gross negligence or willful misconduct, (ii) result from intentional mismanagement of or waste at the applicable real property securing such Non-Recourse Indebtedness, (iii) arise from the presence of Hazardous Substances on the applicable real property securing such Non-Recourse Indebtedness (whether contained in a loan agreement, promissory note, indemnity agreement or other document), (iv) arise from violations of “special purpose entity” covenants (to the extent the same do not trigger full recourse liability), or

 

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(v)are the result of any unpaid real estate taxes and assessments (whether contained in a loan agreement, promissory note, indemnity agreement or other document).

 

Non-Recourse Indebtedness”: Indebtedness of Guarantors, Parent Borrower, their Subsidiaries or a Non-Wholly Owned Subsidiary which is secured by one or more parcels of Real Estate (other than an Unencumbered Asset) or interests therein or fixed or capital assets and which is not a general obligation of Parent Borrower or such Subsidiary or Non-Wholly Owned Subsidiary, the holder of such Indebtedness having recourse solely to the parcels of Real Estate, or interests therein, securing such Indebtedness or the direct owner of such real estate, the leases thereon and the rents, profits and equity thereof or the fixed or capital assets, as applicable (except for recourse against the general credit of Guarantors, Parent Borrower, their Subsidiaries or a Non- Wholly Owned Subsidiary for any Non-Recourse Exclusions), provided that in calculating the amount of Non- Recourse Indebtedness at any time, Parent Borrower’s reasonable estimate of the amount of any Non-Recourse Exclusions which are the subject of a claim and action shall not be included in the Non-Recourse Indebtedness but shall constitute Recourse Indebtedness. Non-Recourse Indebtedness shall also include Indebtedness of a Subsidiary of Parent Guarantor that is not a Subsidiary Borrower or a Non-Wholly Owned Subsidiary which is a special purpose entity that is recourse solely to such Subsidiary or Non-Wholly Owned Subsidiary (or any holding company or other entity which owns such special purpose entity), which is not cross-defaulted to other Indebtedness of the Borrowers (to the extent the same would trigger full recourse liability) and which does not constitute Indebtedness of any other Person (other than such Subsidiary or Non-Wholly Owned Subsidiary which is the borrower thereunder, or any holding company or other entity which owns such special purpose entity).

 

Non-U.S. Lender”: See §4.4(c).

 

Non-Wholly Owned Subsidiary”: In respect of any Loan Party, any other Person in whom such Loan Party holds an equity Investment which is not a Wholly Owned Subsidiary.

 

Notes”: See §2.2.

 

Notice”: See §19.

 

Obligations”: The term “Obligations” shall mean and include:

 

A.The payment, in accordance with the terms of the Loan Documents, of the principal sum, interest at variable rates, charges and indebtedness evidenced by the Notes including any extensions, renewals, replacements, increases, modifications and amendments thereof, given by the Borrowers to the order of the respective Lenders;

 

B.The payment, performance, discharge and satisfaction, in accordance with the terms of the Loan Documents, of each of the covenants, warranties, representations, undertakings and conditions to be paid, performed, satisfied and complied with by the Borrowers under and pursuant to this Agreement or the other Loan Documents;

 

C.The payment, in accordance with the terms of the Loan Documents, of the costs, expenses, legal fees and liabilities incurred by Agent and Lenders in connection with the enforcement of any of Agent’s or any Lender’s rights or remedies under this Agreement or the other Loan Documents, or any other instrument, agreement or document which evidences or secures any other obligations or collateral therefor, whether now in effect or hereafter executed;

 

D.The payment, performance, discharge and satisfaction of all other liabilities and obligations of any Borrower to Agent or any Lender, whether now existing or hereafter arising, direct or indirect, absolute or contingent, and including, without limitation express or implied upon the generality of the foregoing, each liability and obligation of any Borrower under any one or more of the Loan Documents and any amendment, extension, modification, replacement or recasting of any one or more of the instruments, agreements and

 

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documents referred to in this Agreement or any other Loan Document or executed in connection with the transactions contemplated by this Agreement or any other Loan Document; and

 

E.All Hedge Obligations; provided, however, that in no event shall “Obligations” include any Excluded Swap Obligations.

 

OFAC”: Office of Foreign Asset Control of the Department of the Treasury of the United States of America.

 

Other Real Estate Investments”: (i) Investments in Real Estate which are not Multifamily Properties, and (ii) Debt Investments related to Multifamily Properties.

 

Outstanding”: With respect to the Loans, the aggregate unpaid principal thereof as of any date of determination.

 

Parent Borrower”: As defined in the recital of parties hereto.

 

Parent Guarantor”: IRT.

 

Participant Register”: See §18.4.

 

Patriot Act”: The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, as the same may be amended from time to time, and corresponding provisions of future laws.

 

PBGC”: The Pension Benefit Guaranty Corporation created by §4002 of ERISA and any successor entity or entities having similar responsibilities.

 

Permitted Liens”: Liens, security interests and other encumbrances permitted (or of a nature permitted)

by §8.2.

 

Permitted Refinancing Indebtedness”: With respect to any Indebtedness (the “Refinanced Indebtedness”), any Indebtedness issued in exchange for, or the net proceeds of which are used to modify, extend, refinance, renew, replace or refund (collectively to “Refinance” or a “Refinancing” or “Refinanced”), such Refinanced Indebtedness (or previous refinancing thereof constituting Permitted Refinancing Indebtedness); provided that (A) the principal amount (or accreted value, if applicable) of any such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Refinanced Indebtedness outstanding immediately prior to such Refinancing except by an amount equal to the unpaid accrued interest and premium thereon plus other reasonable and customary amounts paid and fees and expenses reasonably incurred in connection with such Refinancing plus an amount equal to any existing commitment unutilized and letters of credit undrawn thereunder, unless any amount in excess of such principal amount is used in reduction of the Indebtedness arising under the Loans hereunder, (B) such Permitted Refinancing Indebtedness shall have a final maturity date equal to or later than the final maturity date of the Refinanced Indebtedness, (C) if the Refinanced Indebtedness is subordinated in right of payment or security to the Obligations, the Permitted Refinancing Indebtedness shall be subordinated to the same extent, and (D) no Loan Party that was not an obligor with respect to the Refinanced Indebtedness shall be an obligor under the Permitted Refinancing Indebtedness.

 

Person”: Any individual, corporation, limited liability company, partnership, trust, unincorporated association, or other legal entity, and any government or any governmental agency or political subdivision thereof.

 

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Plan”: Any employee pension benefit plan within the meaning of §3(2) of ERISA maintained or contributed to by any 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.

 

Plan Assets”: Assets of any Plan subject to Part 4, Subtitle B, Title I of ERISA.

 

Potential Unencumbered Asset”: Any property of Parent Borrower or a Subsidiary Borrower which is not at the time of determination an Unencumbered Asset.

 

Pricing Level”: See the definition of Applicable Margin.

 

Pro Forma Basis”: As to any Person, for any events as described below that occur subsequent to the commencement of a period for which the financial effect of such events is being calculated, and giving effect to the events for which such calculation is being made, such calculation as will give pro forma effect to such events as if such events occurred on the first day of the four (4) consecutive fiscal quarter period being tested or, as applicable, the fiscal quarter period being tested (in each such case, the “Reference Period”): (a) in making any determination on a Pro Forma Basis, (x) effect shall be given to any Specified Transaction, including any change in Consolidated EBITDA relating thereto and any operating improvements or restructurings of the business of Parent Borrower or any of the Subsidiaries that are expected to have a continuing impact and are supportable, which adjustments Parent Borrower determines are reasonable and are supportable as set forth in a certificate signed on behalf of Parent Borrower by an Authorized Officer, in each case, that occurred during the Reference Period; (y) all Indebtedness (including Indebtedness issued, incurred or assumed as a result of, or to finance, any relevant transactions and for which the financial effect is being calculated, whether incurred under the Loan Documents or otherwise) issued, incurred, assumed or permanently repaid during the Reference Period shall be deemed to have been issued, incurred, assumed or permanently repaid at the beginning of such period and (z) interest expense of such Person attributable to interest on any Indebtedness, for which pro forma effect is being given as provided in preceding clause (y), bearing floating interest rates shall be computed on a Pro Forma Basis as if the rates that would have been in effect during the period for which pro forma effect is being given had been actually in effect during such periods; and (b) notwithstanding anything to the contrary in this definition or in any classification under GAAP of any Person, business, assets or operations in respect of which a definitive agreement for the asset sale, transfer, disposition or lease thereof has been entered into as discontinued operations, no pro forma effect shall be given to the classification thereof as discontinued operations (and the Consolidated EBITDA attributable to any such Person, business, assets or operations shall not be excluded for any purposes hereunder) until such asset sale, transfer, disposition or lease shall have been consummated; provided that, at the election of Parent Borrower, any adjustments to Consolidated EBITDA pursuant to clauses (a)(x) and (b) above shall not be required to be included for any Specified Transaction to the extent the aggregate consideration paid in connection with such Specified Transaction, is less than $5,000,000 in the aggregate for all such transactions in any fiscal year.

 

PTE”: A prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

 

“QFC”: See §40.

 

“QFC Credit Support”: See §40.

 

Qualified ECP Loan Party”: Means, in respect of any Hedge Obligation, each Loan Party with total assets exceeding $10,000,000 at the time the relevant guaranty or grant of the relevant security interest becomes effective with respect to such Hedge Obligation or that qualifies at such time as an “eligible contract participant” under the Commodity Exchange Act and can cause another Person to qualify as an “eligible contract participant” at such time under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

 

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Qualified Intermediary”: With respect to any Loan Party, a qualified intermediary within the meaning of Internal Revenue Service Regulation 1.1031(k)-1(g)(4) that is acting for the benefit of such Loan Party.

 

Ratings Grid Election”: See definition of Applicable Margin.

 

Real Estate”: All real property at any time owned or leased (as lessee or sublessee) by a Borrower or any of their respective Subsidiaries, including, without limitation, the Unencumbered Assets.

 

Recourse Indebtedness”: As of any date of determination, any Indebtedness (whether secured or unsecured) of Guarantors, Parent Borrower, their Subsidiaries or their Non-Wholly Owned Subsidiaries with respect to which the liability of the obligor is not limited to the obligor’s interest in specified assets securing such Indebtedness, subject to Non-Recourse Exclusions. Recourse Indebtedness shall not include Non-Recourse Indebtedness.

 

Reference Period”: See definition of Pro Forma Basis.

 

Refinanced Indebtedness”: See definition of Permitted Refinancing Indebtedness.

 

Refinancing”: See definition of Permitted Refinancing Indebtedness.

 

Register”: See §18.2.

 

Reimbursement Contribution”: See §37(b).

 

Release”: Any past or present releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, disposing or dumping (other than in reasonable quantities to the extent necessary in the ordinary course of operation of Borrowers’, their tenants’ or operators’ business and, in any event, in compliance, in all material respects, with all Environmental Laws).

 

Rent Roll”: A report prepared by the Borrowers showing for each Unencumbered Asset owned or leased by the Borrowers, its occupancy, tenants, lease expiration dates, lease rent and other information in substantially the form presented to Agent on or prior to the date hereof.

 

Representative”: See §14.17.

 

Required Lenders”: As of any date, such Lender or Lenders whose aggregate Commitment Percentage is equal to or greater than fifty-one percent (51%) of the aggregate amount of the Commitments, or, if the Commitments have been terminated or reduced to zero, Lenders whose aggregate Commitment Percentage is equal to or greater than fifty-one percent (51%) of the principal amount of the Exposure; provided that (a) in determining such Commitment Percentage at any given time, all then existing Defaulting Lenders will be disregarded and excluded and the Commitment Percentages of Lenders shall be redetermined, for voting purposes only, to exclude the Commitment Percentages of such Defaulting Lenders, and (b) at all times when two or more Lenders are party to this Agreement, the term “Required Lenders” shall in no event mean less than two (2) Lenders.

 

Reserve Percentage”: 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 or quasi-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 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.

 

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Responsible Officer”: The chief executive officer, president, chief financial officer, treasurer, assistant treasurer or any executive vice president of a Loan Party and, for purposes of §10.4, the secretary or assistant secretary of a Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.

 

S&P”: S&P Global Ratings, a division of S&P Global Inc., and any successor thereto.

 

Sanctioned Entity”: EitherAny of (a) an agency, political subdivision, or instrumentality of the government of, (b) an organization directly or indirectly controlled by or (c) a Person or group resident in, in each case, a country that is itself the subject of Sanctions.

 

Sanctioned Person”: A Person or group named on the list of Specially Designated Nationals or Blocked Persons maintained by the OFAC as published from time to time or any Sanctions-related list of designated Persons maintained by OFAC or the U.S. Department of State, the United Nations Security Council, the European Union, or any EU member state.

 

Sanctions”: 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.

 

SEC”: The federal Securities and Exchange Commission.

 

Secured Indebtedness”: As of any date of determination, that portion of Total Indebtedness which is secured by a Lien on Real Estate, any ownership interests in any Subsidiary or Non-Wholly Owned Subsidiary or any other assets, but excluding, with respect to any Secured Recourse Indebtedness, the amount, if any, by which the principal amount of such Secured Recourse Indebtedness exceeds the applicable Collateral Value of the collateral securing such indebtedness.

 

Secured Leverage Ratio”: As of any date of determination, Secured Indebtedness divided by Gross Asset Value, expressed as a percentage.

 

Secured Recourse Indebtedness”: As of any date of determination, that portion of Secured Indebtedness with respect to which the liability of the obligor is not limited to the obligor’s interest in specified assets securing such Indebtedness (subject to Non-Recourse Exclusions); provided that Indebtedness of a single- purpose entity (or any holding company or other entity which owns such single-purpose entity) which is secured by substantially all of the assets of such single-purpose entity (or any holding company or other entity which owns such single-purpose entity) but for which there is no recourse to another Person beyond the single-purpose entity or holding company or other entity which owns such single-purpose entity (other than with respect to Non- Recourse Exclusions) shall not be considered a part of Secured Recourse Indebtedness even if such Indebtedness is fully recourse to such single-purpose entity (or any holding company or other entity which owns such single- purpose entity) and unsecured guarantees provided by a Borrower or any Guarantor of mortgage loans to Subsidiaries or Non-Wholly Owned Subsidiaries shall not be included in Secured Recourse Indebtedness.

 

Solvent”: With respect to the Loan Parties, that (a) the fair value of the property of the Loan Parties is greater than the total amount of liabilities, including contingent liabilities, of the Loan Parties, (b) the present fair salable value of the assets of the Loan Parties is not less than the amount that will be required to pay the probable liability of the Loan Parties on their debts as they become absolute and matured, (c) the Loan Parties do not intend to, and do not believe that they will, incur debts or liabilities beyond the Loan Parties’ ability to pay such debts and liabilities as they mature and (d) the Loan Parties are not engaged in business or a transaction, and are not about to engage in business or a transaction, for which the Loan Parties’ property would constitute

 

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an unreasonably small capital. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

 

Specified Loan Party”: Any Loan Party that is not then a Qualified ECP Loan Party (determined prior to giving effect to §7.21).

 

Specified Transaction”: With respect to any period, any (a) asset sale, acquisition, Investment, sale, transfer or other disposition of assets or property other than in the ordinary course, (b) any merger or consolidation, or any similar transaction, or (c) any incurrence, issuance or repayment of Indebtedness.

 

Stabilized Property”: Real Estate (a) which is a commercial property operating as a Multifamily Property that is completed with tenants in occupancy and open for business, or (b) which has ceased to be a “Construction in Process” in accordance with the definition thereof.

 

State”: A state of the United States of America and the District of Columbia.

 

Subsidiary”: For any Person, any corporation, partnership, limited liability company or other entity of which at least a majority of the securities or other ownership interests having by the terms thereof ordinary voting power to elect a majority of the board of directors or other persons performing similar functions of such corporation, partnership, limited liability company 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 more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person, and shall include all Persons the accounts of which are consolidated with those of such Person pursuant to GAAP.

 

Subsidiary Borrowers”: Any Borrower that is a Subsidiary of Parent Borrower party hereto as of the Closing Date and any Additional Subsidiary Borrower that is the direct owner of an Unencumbered Asset.

 

Successor Rate Conforming Changes”: With respect to any proposed successor benchmark rate pursuant to §4.6(b), any conforming changes made in accordance with §4.6(b) to (a) the definitions of Base Rate and Interest Period, (b) timing and frequency of determining rates and making payments of interest and (c) other administrative matters as may be appropriate, in the discretion of Agent, to (i) reflect the adoption of such successor benchmark rate and (ii) permit the administration thereof by Agent in a manner substantially consistent with market practice (or, if Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such successor benchmark rate exists, in such other manner of administration as Agent determines in consultation with the Borrowers).

 

“Supported QFC”: See §40.

 

Syndication Agents”: As defined in the preamble hereto.

 

Taking”: The taking or appropriation (including by deed in lieu of condemnation) of any Unencumbered Asset, or any part thereof or interest therein, whether permanently or temporarily, for public or quasi-public use under the power of eminent domain, by reason of any public improvement or condemnation proceeding, or in any other manner or any customarily recognized and compensated damage or injury or diminution in value through condemnation, inverse condemnation or other exercise of the power of eminent domain.

 

Taxes”: Any present or future taxes, levies, imposts, duties, charges, fees, or similar deductions or withholdings that are imposed by any Governmental Authority.

 

Ticking Fee”: See §4.2.

 

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Ticking Fee Accrual Date”: See §4.2.

 

Titled Agents”: Arrangers, Syndication Agents, or Bookrunners.

 

Total Consolidated Operating Property Value”: As of any date of determination, on a consolidated basis for the Consolidated Group, the sum of: (a) the aggregate Consolidated Asset NOI for all Stabilized Properties (excluding Consolidated Asset NOI from Stabilized Properties being held at acquisition cost under

(b)below) for the most recent calendar quarter, annualized, divided by the Capitalization Rate, plus (b) the acquisition cost of any Stabilized Property for the first eighteen (18) months following its acquisition.

 

Total Indebtedness”: As of any date of determination, without duplication, the sum of (a) all Indebtedness of the Consolidated Group outstanding at such date, determined on a Consolidated basis plus (b) the Consolidated Group Pro Rata Share of all Indebtedness of any Non-Wholly Owned Subsidiaries outstanding at such date.

 

Total Unencumbered Asset Value”: As of any date of determination, on a consolidated basis for the Consolidated Group the sum of: (a) the aggregate Unencumbered Asset NOI for all Stabilized Properties (excluding Unencumbered Asset NOI from Stabilized Properties being held at acquisition cost under (b) below) for the most recent calendar quarter, annualized, divided by the Capitalization Rate, plus (b) the acquisition cost of any Stabilized Property for the first eighteen (18) months following its acquisition plus (c) 80% of all 1031 Cash held by a Qualified Intermediary on behalf of any Loan Party at such time.

 

Type”: As to any Loan, its nature as a Base Rate Loan or a LIBOR Rate Loan.

 

Unencumbered Asset Adjusted NOI”: On any date of determination, the Unencumbered Asset NOI for the most recent fiscal quarter, annualized, less, with respect to Real Estate owned by any Person in the Consolidated Group, the Capital Expenditure Reserve, and, with respect to Real Estate owned by Non-Wholly Owned Subsidiaries, the Consolidated Group Pro Rata Share of the Capital Expenditure Reserve.

 

Unencumbered Asset Conditions”: See the definition of Unencumbered Assets.

 

Unencumbered Asset Financial Covenants”: The financial covenants set forth in §9.8 (Unencumbered Assets), §9.9 (Maximum Unsecured Leverage Ratio) and §9.10 (Minimum Unencumbered Assets Debt Service Coverage Ratio).

 

Unencumbered Asset NOI”: As of any date of determination, “property rental and other income” attributable to the Unencumbered Assets (including, without limitation, payments received from insurance on account of business or rental interruption and condemnation proceeds from any temporary use or occupancy) accruing for such period minus the amount of all expenses incurred in connection with and directly attributable to the ownership and operation of such Unencumbered Assets for such period (including, without limitation, property management fees and amounts accrued for the payment of real estate taxes and insurance premiums, but excluding Interest Expense or other debt service charges and any non-cash charges such as depreciation or amortization of financing costs plus acquisition costs for consummated acquisitions), with such results being “grossed up” for any Unencumbered Assets not owned for the entire testing period.

 

Unencumbered Assets”: (a) Each Multifamily Property listed on Schedule 5.1 and (b) each other Multifamily Property designated as an Unencumbered Asset by Parent Borrower pursuant to §5.2 (i) that is an operating Multifamily Property located within the fifty (50) States of the United States or the District of Columbia, (ii) that is wholly-owned in fee (or leased under a Ground Lease acceptable to Agent in its reasonable discretion), by Parent Borrower or a Subsidiary Borrower, (iii) that is not subject to any Liens (other than Permitted Liens) or any Negative Pledge, (iv) that is not subject to mezzanine debt financing, (v) that is not the subject of a Disqualifying Environmental Event or Disqualifying Structural Event and is free of all title defects, or other materially adverse matters, in each case which in the reasonable determination of Agent would

 

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materially impact the value, cashflow, or marketability of such Multifamily Property and (vi) with respect to which all of the representations set forth in §6 of this Agreement concerning Unencumbered Assets are true and correct in all material respects with respect thereto (the requirements described in clauses (i) through (vi) being the “Unencumbered Asset Conditions”).

 

Unencumbered Assets Debt Service Coverage Ratio”: As of any date of determination, Unencumbered Asset Adjusted NOI for all Unencumbered Assets divided by Implied Unsecured Debt Service, expressed as a percentage.

 

Unhedged Variable Rate Indebtedness”: As of any date of determination, the sum of (a) Total Indebtedness minus (b) the sum of (i) the aggregate amount of all Total Indebtedness having interest which accrues thereon at a fixed rate of interest per annum plus (ii) with respect to all Total Indebtedness hedged by Derivatives Contracts effectively fixing or capping the per annum rate of interest thereof, the aggregate notational amount of all such Derivatives Contracts.

 

Unimproved Land”: Real Estate which is unimproved and on which no development or Construction in Process is in effect.

 

Unrestricted Cash and Cash Equivalents”: As of any date of determination, the sum of (a) the aggregate amount of Unrestricted cash and (b) the aggregate amount of Unrestricted Cash Equivalents (valued at fair market value). As used in this definition, “Unrestricted cash” and “Unrestricted Cash Equivalents” means, as of any date of determination, the aggregate amount of cash and Cash Equivalents included in the cash accounts that would be listed on the consolidated balance sheet of the Consolidated Group prepared in accordance with GAAP as of the end of the most recently ended fiscal quarter ending prior to the date of such determination for which consolidated financial statements of the Consolidated Group are available to the extent such cash is not classified as restricted for financial statement purposes (unless so classified solely because of any provision under this Agreement and/or the other Loan Documents or because they are subject to a Lien securing the Obligations hereunder or the obligations thereunder).

 

Unsecured Indebtedness”: As of any date of determination, the portion of Total Indebtedness outstanding at such date that is not Secured Indebtedness.

 

Unsecured Leverage Ratio”: As of any date of determination, Unsecured Indebtedness divided by

Total Unencumbered Asset Value, expressed as a percentage.

 

Unsecured Recourse Indebtedness”: As of any date of determination, Recourse Indebtedness that is not Secured Recourse Indebtedness.

 

U.S. Lender”: See §4.4(c).

 

“U.S. Special Resolution Regimes”: See §40.

 

Wholly Owned Subsidiary”: As to Parent Borrower, any Subsidiary of Parent Borrower that is directly or indirectly owned one hundred percent (100%) by Parent Borrower, without regard to Equity Interests issued so as to achieve up to 125 equity holders so as to qualify as a REIT.

 

Write-Down and Conversion Powers”: Means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

 

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§1.2Rules of Interpretation.

 

(a)

A reference to any document or agreement shall include such document or agreement as amended, modified or supplemented from time to time in accordance with its terms and the terms of this Agreement.

 

 

(b)

The singular includes the plural and the plural includes the singular.

 

 

(c)

A reference to any law includes any amendment or modification of such law.

 

 

(d)

A reference to any Person includes its permitted successors and permitted assigns.

 

(e)

Accounting terms not otherwise defined herein have the meanings assigned to them by GAAP applied on a consistent basis by the accounting entity to which they refer.

 

 

 

(f)

The words “include”, “includes” and “including” are not limiting.

 

(g)

The words “approval” and “approved”, as the context requires, means an approval in writing given to the party seeking approval.

 

 

(h)

All terms not specifically defined herein or by GAAP, which terms are defined in the Uniform Commercial Code as in effect in the State of New York, have the meanings assigned to them therein.

 

 

 

(i)

Reference to a particular “§”, refers to that section of this Agreement unless otherwise

indicated.

 

(j)

The words “herein”, “hereof”, “hereunder” and words of like import shall refer to this Agreement as a whole and not to any particular section or subdivision of this Agreement.

 

 

(k)

The words “the date hereof” or words of like import shall mean the date that this Agreement is fully executed by all parties.

 

 

(l)

In the event of any change in generally accepted accounting principles after the date hereof or any other change in accounting procedures pursuant to §7.3 which would affect the computation of any financial covenant, ratio or other requirement set forth in any Loan Document, then upon the request of the Borrowers or Agent, the Borrowers and Agent shall negotiate promptly, diligently and in good faith in order to amend the provisions of the Loan Documents such that such financial covenant, ratio or other requirement shall continue to provide substantially the same financial tests or restrictions of the Borrowers as in effect prior to such accounting change, as determined by Parent Borrower and Agent in good faith. Until such time as such amendment shall have been executed and delivered by the Borrowers and Agent, such financial covenants, ratio and other requirements, and all financial statements and other documents required to be delivered under the Loan Documents, shall be calculated and reported as if such change had not occurred.

 

 

(m)

For purposes of this Agreement, “knowledge” of any Loan Party or any Loan Party “becoming aware” or other language of similar import means, with respect to any matter, the actual knowledge of any Responsible Officer.

 

 

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§2THE FACILITY.

 

§2.1Loans.

 

(a)

Initial Loans. Subject to the terms and conditions set forth in this Agreement, on the Closing Date the Lenders severally agree to make Loans in the original principal amount of $150,000,000.00 (the “Initial Loans”) to the Borrowers.

 

 

(b)

Delayed Draw Loans. Subject to the terms and conditions set forth in this Agreement, on any Business Day during the Delayed Draw Period, the Lenders severally agree to make Loans in the aggregate maximum principal amount of up to $50,000,000.00 (the “Delayed Draw Loans”) to the Borrowers; provided, however, that (A)(I) any such Delayed Draw Loan that is a Base Rate Loan shall be in the amount of

 

$100,000.00 or an integral multiple of $100,000.00 in excess thereof and (II) any such Delayed Draw Loan that is a LIBOR Rate Loan shall be in the amount of $500,000.00 or an integral multiple of $100,000.00 in excess thereof, (B) there shall not be more than three Delayed Draw Loans advanced during the Delayed Draw Period,

(C)such Delayed Draw Loans shall consist of advances made simultaneously by the Lenders ratably according to their Commitments, (D) such Delayed Draw Loans shall be subject to the conditions in §11 having been satisfied and (E) the aggregate amount advanced to the Borrowers pursuant to this §2.1(b) shall not exceed the aggregate unfunded Commitments.

 

§2.2 Notes. The Loans shall, if requested by each  Lender, be  evidenced by  separate promissory notes of the Borrowers in substantially the form of Exhibit A hereto (collectively, the “Notes”), dated of even date with this Agreement (except as otherwise provided in §18.3) and completed with appropriate insertions. One Note shall be payable to the order of each Lender which so requests the issuance of a Note in the principal amount equal to such Lender’s Commitment.

 

§2.3Intentionally Omitted.

 

§2.4Intentionally Omitted.

 

§2.5Intentionally Omitted.

 

§2.6Interest on Loans.

 

(a)

Each Base Rate Loan shall bear interest for the period commencing with the Closing Date or the date on which the Loan is converted in accordance with §4.1, as applicable, and ending on the date on which such Loan is repaid or converted to a LIBOR Rate Loan at the rate per annum equal to the Base Rate.

 

 

(b)

Each LIBOR Rate Loan shall bear interest for the period commencing with the Closing Date or the date on which the Loan is converted in accordance with §4.1, as applicable, and ending on the last day of each Interest Period with respect thereto at the rate per annum equal to the sum of LIBOR determined for such Interest Period plus the Applicable Margin for LIBOR Rate Loans.

 

 

(c)

The Borrowers promise to pay interest on each Loan in arrears on each Interest Payment Date with respect thereto.

 

 

(d)

Base Rate Loans and LIBOR Rate Loans may be converted to Loans of the other Type as provided in §4.1.

 

 

(e)

The parties understand that the applicable interest rate for the Loans and certain fees set forth herein may be determined and/or adjusted from time to time based upon certain financial ratios and/or other information to be provided or certified to Lenders by the Borrowers (the “Borrower Information”). If it is subsequently determined that any such Borrower Information was incorrect (for whatever reason, including

 

 

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without limitation because of a subsequent restatement of earnings by the Borrowers) at the time it was delivered to Agent, and if the applicable interest rate or fees calculated for any period were different than they should have been had the correct information been timely provided, then, such interest rate and such fees for such period shall be automatically recalculated using correct Borrower Information. Agent shall promptly notify the Borrowers in writing of any additional interest and fees due because of such recalculation, and the Borrowers shall pay such additional interest or fees due to Agent, for the account of each Lender, within five (5) Business Days of receipt of such written notice. The Borrowers shall receive a credit or refund of any overpayment promptly after such determination. Any recalculation of interest or fees required by this provision shall survive the termination of this Agreement for a period of one hundred eighty (180) days, and this provision shall not in any way limit any of Agent’s or any Lender’s other rights under this Agreement.

 

§2.7 Request for Loan. The Borrowers shall give to Agent written notice executed by an Authorized Officer in the form of Exhibit C hereto (or telephonic notice confirmed in writing in the form of Exhibit C hereto) of the Loan (the “Loan Request”) by 1:00 p.m. (Eastern time) one (1) Business Day prior to the Closing Date with respect to a Base Rate Loan and two (2) Business Days prior to the Closing Date with respect to a LIBOR Rate Loan, together with an executed Availability Certificate in the form of Exhibit D (each, an “Availability Certificate”). Such notice shall specify with respect to the Loan the principal amount of such Loan, the Type of Loan, the initial Interest Period (if applicable) for such Loan and the Closing Date. Promptly upon receipt of the Loan Request, Agent shall notify each of the Lenders thereof. The Loan Request shall be irrevocable and binding on the Borrowers and shall obligate the Borrowers to accept the Loan from the Lenders on the Closing Date. Nothing herein shall prevent the Borrowers from seeking recourse against any Lender that fails to advance its proportionate share of a requested Loan as required by this Agreement. The Loan Request shall be (i) in the amount of $100,000.00 or an integral multiple of $100,000.00 in excess thereof for a Base Rate Loan, and/or (ii) in the amount of $500,000.00 or an integral multiple of $100,000.00 in excess thereof for a LIBOR Rate Loan.

 

§2.8Funds for Loans.

 

(a)

Not later than noon (Eastern time) on the Closing Date of any Loans, each of the Lenders will make available to Agent, at Agent’s Head Office, in immediately available funds, the amount of such Lender’s Commitment Percentage of the amount of the requested Loans which may be disbursed pursuant to §2.1. Upon receipt from each such Lender of such amount, and upon receipt of the documents required by

 

§10 and §11 and the satisfaction of the other conditions set forth therein (except, in each case, to the extent waived by Agent) to the extent applicable, Agent will make available to the Borrowers the aggregate amount of such Loans made available to Agent by the Lenders by crediting such amount to the account of the Borrowers maintained at Agent’s Head Office or wiring such funds in accordance with the Borrowers’ written instructions. The failure or refusal of any Lender to make available to Agent at the aforesaid time and place on the Closing Date the amount of its Commitment Percentage of the requested Loans shall not relieve any other Lender from its several obligation hereunder to make available to Agent the amount of such other Lender’s Commitment Percentage of any requested Loans, including any additional Loans that may be requested subject to the terms and conditions hereof to provide funds to replace those not advanced by the Lender so failing or refusing.

 

(b)

Unless Agent shall have been notified by any Lender prior to the Closing Date that such Lender will not make available to Agent such Lender’s Commitment Percentage of a the Loan, Agent may in its discretion assume that such Lender has made such Loan available to Agent in accordance with the provisions of this Agreement and Agent may, if it chooses, in reliance upon such assumption make such Loan available to the Borrowers, and such Lender shall be liable to Agent for the amount of such advance. If such Lender does not pay such corresponding amount upon Agent’s demand therefor, Agent will promptly notify the Borrowers, and the Borrowers shall promptly pay such corresponding amount to Agent. Agent shall also be entitled to recover from such Lender or the Borrowers (without duplication), 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 Agent to the Borrowers to the date such corresponding amount is recovered by Agent at a per annum rate equal to (i) from the Borrowers at the applicable rate for such Loan or (ii) from a Lender at the Federal Funds Effective Rate.

 

 

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§2.9 Use of Proceeds. The Borrowers will use the proceeds of the Loans solely to (a) pay closing  costs in connection with this Agreement; (b) refinance existing Indebtedness; and (c) for general working capital purposes (including without limitation to finance interest shortfalls, general operating expenses, including without limitation taxes, insurance and other expenses, and the payment of fees and expenses related to the Facility).

 

§2.10Termination or Reduction of Commitments.

 

(a)

Optional. The Borrowers shall have the right at any time and from time to time upon at least five (5) Business Days’ prior written notice to Agent to reduce by $500,000.00 or an integral multiple of

 

$100,000.00 in excess thereof or to terminate entirely the unused portions of the Commitments (including with respect to the Delayed Draw Loans), whereupon the Commitments of the Lenders shall be reduced pro rata in accordance with their respective Commitment Percentages of the amount specified in such notice or, as the case may be, terminated, any such termination or reduction to be without penalty except as otherwise set forth in §4.8; provided, however, that no such termination or reduction shall be permitted if, after giving effect thereto, the sum of Outstanding Loans would exceed the Commitments of the Lenders as so terminated or reduced. Promptly after receiving any notice from the Borrowers delivered pursuant to this §2.10, Agent will notify the Lenders of the substance thereof. Upon the effective date of any such reduction or termination, the Borrowers shall pay to Agent for the respective accounts of the Lenders the full amount of any Ticking Fee under §4.2 then accrued on the amount of the reduction. No reduction or termination of the Commitments may be reinstated.

 

(b)

Mandatory. The aggregate funded Commitments of the Lenders relating to any Loans that are repaid or prepaid shall be automatically and permanently reduced, on a pro rata basis, by the amount of such repayment or prepayment. Any unfunded Commitments in respect of the Delayed Draw Loans shall automatically be deemed terminated and reduced to zero on the earlier to occur of: (i) the date that the third Delayed Draw Term Loan is advanced to the Borrowers in accordance with § 2.1(b) (immediately following such advance) and (ii) at 11:59 P.M. (Eastern time) on the last day of the Delayed Draw Period.

 

 

§2.11Increase in Commitments.

 

(a)Provided that no Default or Event of Default has occurred and is continuing, subject to the terms and conditions set forth in this §2.11, the Borrowers shall have a one-time option at any time before the date that is thirty (30) days prior to the Maturity Date to request an increase of the aggregate Commitments to Four Hundred Million Dollars ($400,000,000.00) by giving written notice to Agent (the “Increase Notice”; and the amount of such requested increase is a Commitment Increase”). Agent shall send a notice to all Lenders (the “Additional Commitment Request Notice”) informing them of the Borrowers’ request to increase the aggregate Commitments. Each Lender who desires to provide an additional Commitment upon such terms shall provide Agent with a written commitment letter specifying the amount of the additional Commitment by which it is willing to provide prior to such deadline as may be specified in the Additional Commitment Request Notice. If the requested increase is oversubscribed then Agent and Arrangers shall allocate the Commitment Increase among such Lenders who provide such commitment letters on such basis mutually acceptable to each of the Borrowers, Agent and Arrangers. If the additional Commitments so provided are not sufficient to provide the full amount of the Commitment Increase requested by the Borrowers, then Agent, Arrangers or the Borrowers may, but shall not be obligated to, invite, and Agent, in consultation with Parent Borrower, will use its reasonable efforts to arrange for, one or more banks or lending institutions (which banks or lending institutions shall be reasonably acceptable to Agent, Arrangers and Parent Borrower) to become a Lender and provide an additional Commitment (each such Lender, an “Acceding Lender”). Agent shall promptly provide all Lenders and Acceding Lenders with a notice setting forth the amount, if any, of the additional Commitment to be provided by each Lender and Acceding Lender and the revised Commitment Percentages (as well as the revised Facility Amount) which shall be applicable after the effective date of the Commitment Increase specified therein (the “Commitment Increase Date”). In no event shall any Lender be obligated to provide an additional Commitment.

 

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(b)On any Commitment Increase Date the Outstanding principal balance of the applicable Loans shall be reallocated among the Lenders (including any Acceding Lenders) such that after the applicable Commitment Increase Date the Outstanding principal amount of Loans owed to each Lender shall be equal to such Lender’s Commitment Percentage (as in effect after the applicable Commitment Increase Date) of the Outstanding principal amount of all applicable Loans. On any Commitment Increase Date those Lenders whose Commitment Percentage is increasing shall advance the funds to Agent and the funds so advanced shall be distributed among the Lenders whose Commitment Percentage is decreasing as necessary to accomplish the required reallocation of the Outstanding Loans. The funds so advanced shall be Base Rate Loans until converted to LIBOR Rate Loans which are allocated among all Lenders based on their Commitment Percentages, after giving effect to any Commitment Increase, as reasonably determined by Agent.

 

(c)Upon the effective date of each increase in the aggregate Commitments pursuant to this §2.11, each Acceding Lender shall become a Lender party to this Agreement as of such date and shall execute an accession agreement in form and substance reasonably satisfactory to Parent Borrower and Agent (each, an “Accession Agreement”) Agent may unilaterally revise Schedule 1.1 and the Borrowers shall, if requested by such Lender, execute and deliver to Agent new Notes for each Lender whose Commitment has changed so that the principal amount of such Lender’s applicable Notes shall equal its Commitment. Agent shall deliver such replacement Notes (or new Notes, in the case of Acceding Lenders) to the respective Lenders in exchange for the Notes replaced thereby (if applicable) which shall be surrendered by such Lenders. Such new Notes shall (if applicable) provide that they are replacements for the surrendered Notes and (if applicable) that they do not constitute a novation, shall be dated as of the Commitment Increase Date and shall otherwise be in substantially the form of Exhibit A hereto.

 

(d)Notwithstanding anything to the contrary contained herein, any obligation of Agent and Lenders to increase the aggregate Commitments pursuant to this §2.11 shall be conditioned upon satisfaction or waiver of the following conditions precedent which must be satisfied or waived prior to the effectiveness of any increase of the aggregate Commitments:

 

(i)Payment of Activation Fee. The Borrowers shall pay to Agent those fees described in and contemplated by each Agreement Regarding Fees with respect to the applicable Commitment Increase; and

 

(ii)No Default. On the date any Increase Notice is given and on the date such increase becomes effective, both immediately before and after the Commitments are increased, no Default or Event of Default shall have occurred and be continuing; and

 

(iii)Representations True. The representations and warranties made by the Borrowers and Guarantors, respectively, in the Loan Documents or otherwise made by or on behalf of the Borrowers and Guarantors, respectively, in connection therewith shall also be true and correct in all material respects on the date of such Increase Notice and on the date the Commitments are increased, both immediately before and after the Commitments are increased (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 only as of such specified date); and

 

(iv)Additional Documents and Expenses. The Borrowers and Guarantors shall execute and deliver to Agent and Lenders such additional documents and opinions as Agent may reasonably require, including, without limitation, a Compliance Certificate, demonstrating compliance with all covenants set forth in the Loan Documents after giving effect to the increase, a certificate signed on behalf of Parent Borrower by an Authorized Officer confirming the statements in clauses (ii) and (iii) of this §2.11(d), and the Borrowers shall pay the cost of any reasonable and documented fees, taxes or expenses which are reasonably requested in connection with such increase.

 

§2.12Intentionally Omitted.

 

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§2.13Intentionally Omitted.

 

§3REPAYMENT OF THE LOANS.

 

§3.1 Stated Maturity. The Borrowers promise to pay on the Maturity Date and there shall become absolutely due and payable on the Maturity Date all of the Loans, together with any and all accrued and unpaid interest thereon.

 

§3.2Mandatory Prepayments.

 

(a)

The Borrowers shall, if applicable, within five (5) Business Days after the earlier of the date on which (i) a Responsible Officer of Parent Borrower has knowledge of any non-compliance with the requirements described in the following clauses (A), (B), (C) or (D) or (ii) written notice of any such non- compliance shall have been given to the Borrowers by Agent, prepay an aggregate principal amount of the Loans or any other Indebtedness in an amount sufficient to cause (A) the Exposure not to exceed the Maximum Facility Amount on such Business Day, (B) the Consolidated Leverage Ratio not to exceed the applicable maximum Consolidated Leverage Ratio set forth in §9.1 on such Business Day, (C) the Unsecured Leverage Ratio not to exceed the applicable maximum Unsecured Leverage Ratio set forth in §9.9 on such Business Day and (D) the Unencumbered Assets Debt Service Coverage Ratio not to be less than the minimum Unencumbered Assets Debt Service Coverage Ratio set forth in §9.10 on such Business Day.

 

 

(b)All prepayments under this §3.2 shall be made together with accrued interest to the date of such prepayment on the principal amount prepaid, together with any additional amounts payable pursuant to §4.8.

 

§3.3Optional Prepayments.

 

(a)

The Borrowers shall have the right, at their election, to prepay the Outstanding amount of the Loans, as a whole or in part, at any time; provided, that if any prepayment of the Outstanding amount of any LIBOR Rate Loans pursuant to this §3.3 is made on a date that is not the last day of the Interest Period relating thereto, such prepayment shall be accompanied by the payment of any amounts due pursuant to §4.8.

 

 

(b)

The Borrowers shall give Agent, no later than 1:00 p.m. (Eastern time) at least three

(3) days’ prior written notice of any prepayment pursuant to this §3.3, in each case specifying the proposed date of prepayment of the Loans and the principal amount to be prepaid (provided that (i) any such notice may be revoked or modified upon one (1) day’s prior notice to Agent) and/or (ii) any such notice or repayment may be conditioned upon the consummation of a transaction.

 

§3.4 Partial Prepayments. Each partial prepayment of the Loans under §3.3 shall be in a minimum amount of $100,000.00 and shall be accompanied by the payment of accrued interest on the principal prepaid to the date of payment.

 

§3.5Effect of Prepayments. Amounts of the Loans prepaid under §3.2 and §3.3 prior to the Maturity Date may not be reborrowed.

 

§3.6Sharing of Payments, Etc..

 

Subject to the provisions of §12.5, if any Lender shall obtain at any time any payment (whether voluntary, involuntary, through the exercise of any right of set-offset off, or otherwise, other than as a result of an assignment pursuant to §18 (i) on account of Obligations due and payable to such Lender under the Loan Documents at such time in excess of its ratable share (according to the proportion of (x) the amount of such Obligations due and payable to such Lender at such time to (y) the aggregate amount of the Obligations due and payable to all Lenders under the Loan Documents at such time) of payments on account of the Obligations due

 

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and payable to all Lenders under the Loan Documents at such time obtained by all such Lenders at such time or

(ii)on account of Obligations owing (but not due and payable) to such Lender under the Loan Documents at such time in excess of its ratable share (according to the proportion of (x) the amount of such Obligations owing to such Lender at such time to (y) the aggregate amount of the Obligations owing (but not due and payable) to all Lenders hereunderunder the Loan Documents at such time) of payments on account of the Obligations owing (but not due and payable) to all Lenders under the Loan Documents at such time obtained by all of the Lenders at such time, such Lender shall forthwith purchase from suchthe other Lenders such interests or participating interests in the Obligations due and payable or owing to them, as the case may be, as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of them; provided, however, that if all or any portion of such excess payment is thereafter recovered from such purchasing Lender, such purchase from each other Lender shall be rescinded and such other Lender shall repay to the purchasing Lender the purchase price to the extent of such Lender’s ratable share (according to the proportion of (x) the purchase price paid to such Lender to (y) the aggregate purchase price paid to all Lenders) of such recovery together with an amount equal to such Lender’s ratable share (according to the proportion of (x) the amount of such other Lender’s required repayment to (y) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered. The Borrowers agree that any Lender so purchasing an interest or participating interest from another Lender pursuant to this

§3.6(a) may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set- off) with respect to such interest or participating interest, as the case may be, as fully as if such Lender were the direct creditor of the Borrowers in the amount of such interest or participating interest, as the case may be.

 

§4CERTAIN GENERAL PROVISIONS.

 

§4.1Conversion Options.

 

(a)

The Borrowers may elect from time to time to convert any of the Outstanding Loans to a Loan of another Type and such Loans shall thereafter bear interest as a Base Rate Loan or a LIBOR Rate Loan, as applicable; provided that (i) with respect to any such conversion of a LIBOR Rate Loan to a Base Rate Loan, the Borrowers shall give Agent at least one (1) Business Day’s prior written notice of such election, and such conversion shall only be made on the last day of the Interest Period with respect to such LIBOR Rate Loan unless the Borrowers pay Breakage Costs as required under this Agreement; (ii) with respect to any such conversion of a Base Rate Loan to a LIBOR Rate Loan, the Borrowers shall give Agent at least three (3) LIBOR Business Days’ prior written notice of such election and the Interest Period requested for such Loan, the principal amount of the Loan so converted shall be in a minimum aggregate amount of $100,000.00 and, after giving effect to the making of such Loan, there shall be no more than seven (7) LIBOR Rate Loans Outstanding at any one time; and (iii) no Loan may be converted into a LIBOR Rate Loan when any Default or Event of Default has occurred and is continuing. All or any part of the Outstanding Loans of any Type may be converted as provided herein, provided that no partial conversion shall result in a Base Rate Loan in a principal amount of less than $100,000.00 or a LIBOR Rate Loan in a principal amount of less than $100,000.00. On the date on which such conversion is being made, each Lender shall take such action as is necessary to transfer its Commitment Percentage of such Loans to its Domestic Lending Office or its LIBOR Lending Office, as the case may be. Each Conversion/Continuation Request relating to the conversion of a Base Rate Loan to a LIBOR Rate Loan shall be irrevocable by the Borrowers.

 

 

(b)Any LIBOR Rate Loan may be continued as such Type upon the expiration of an Interest Period with respect thereto by compliance by the Borrowers with the terms of this §4.1; provided that no LIBOR Rate Loan may be continued as such when any Default or Event of Default has occurred and is continuing, but shall be automatically converted to a Base Rate Loan on the last day of the Interest Period relating thereto ending during the continuance of any Default or Event of Default.

 

(c)In the event that the Borrowers do not notify Agent of their election hereunder with respect to any LIBOR Rate Loan, such Loan shall be automatically continued at the end of the applicable Interest Period as a LIBOR Rate Loan for an Interest Period of one (1) month unless such Interest Period shall be greater

 

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than the time remaining until the Maturity Date, in which case such Loan shall be automatically converted to a Base Rate Loan at the end of the applicable Interest Period.

 

§4.2Fees.

 

(a)Ticking Fee. The Borrower shall pay to Agent for the account of each Lender (other than any Defaulting Lender) a ticking fee (each, a “Ticking Fee”) in accordance with this Section 4.2(a). The Ticking Fee with respect to each Lender shall accrue from the later of the date occurring ninety (90) days following the Closing Date or upon the effectiveness of any Assignment and Acceptance pursuant to which it became a Lender until the earliest of (i) the last day of the Delayed Draw Period, (ii) the date on which the Delayed Draw Loan is advanced to the Borrower, (iii) the date of termination by the Borrower of all of the unused portions of the Commitments or (iv) the date of effectiveness of any Assignment and Acceptance pursuant to which it ceases to be a Lender (such date, the “Ticking Fee Accrual Date”) at a rate per annum of 0.20% of the daily average of the unused portion of such Lender’s Commitment during the applicable period and shall be payable to Agent in arrears on the Ticking Fee Accrual Date for the account of such Lender.

 

(b)Other Fees. In addition to all fees specified herein, the Borrowers agree to pay to KeyBank and Arrangers for their own account certain fees for services rendered or to be rendered in connection with the Loans as provided pursuant to each Agreement Regarding Fees.

 

§4.3[Reserved].

 

§4.4Funds for Payments.

 

(a)

All payments of principal, interest, facility fees, closing fees and any other amounts due hereunder or under any of the other Loan Documents shall be made to Agent, for the respective accounts of Lenders and Agent, as the case may be, at Agent’s Head Office, not later than 3:00 p.m. (Eastern time) on the day when due (or such later time as is acceptable to Agent in the event of a payment in full of all Loans and a termination of Commitments hereunder), in each case in lawful money of the United States in immediately available funds. Subject to the foregoing, all payments made to Agent on behalf of Lenders, and actually received by Agent, shall be deemed received by Lenders on the date actually received by Agent.

 

 

(b)

All payments by the Borrowers hereunder and under any of the other Loan Documents shall be made without setoff or counterclaim and free and clear of and without deduction or withholding for any Taxes, excluding any income or gross receipts Taxes, franchise or similar Taxes and any Taxes imposed by a jurisdiction (i) as a result of Agent or Lender 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) as a result of any present or former connection between Agent or a Lender and such jurisdiction other than any connection arising solely from executing, delivering, becoming a party to, performing its obligations under, receiving any payments under, engaging in any other transaction pursuant to, or enforcing any Loan Document, or selling, pledging, assigning or granting a security interest in, any Loan Document (such Taxes, other than those so excluded as specifically set forth in this sentence and elsewhere in this §4.4(b), referred to as “Non-Excluded Taxes”), unless the Borrowers are required by law to make such deduction or withholding. If any such obligation is imposed upon the Borrowers with respect to any amount payable by the Borrowers hereunder or under any of the other Loan Documents, the Borrowers will pay to Agent, for the account of Lenders or (as the case may be) Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable Lenders or Agent to receive, after such deduction or withholding has been made, the same net amount which Lenders or Agent would have received on such due date had no such obligation been imposed upon the Borrowers; provided, however, that the Borrowers shall not be required to increase any such amounts payable to any Lender with respect to any Non-Excluded Taxes (i) that are attributable to such Lender’s failure to comply with the requirements of §4.4(c); (ii) that are branch profits taxes imposed by the United States or any similar taxes imposed by any other jurisdiction under the laws of which a Lender is organized or in which its applicable

 

 

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lending office is located; (iii) in the case of a Non-U.S. Lender and notwithstanding any consent given pursuant to §18.1, that are imposed on amounts payable to such Lender pursuant to a law in effect on the date on which such Lender becomes a party to this Agreement (or designates a new lending office), except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment) to receive additional amounts from the Borrowers with respect to such Non-Excluded Taxes pursuant to this §4.4(b); or (iv) that are U.S. federal withholding Taxes imposed under FATCA. The Borrowers shall indemnify each of Agent and Lenders, as applicable, within 10 days after demand therefor, for the full amount of any Non-Excluded Taxes (including Non-Excluded Taxes imposed or asserted on or attributable to amounts payable under this §4) payable or paid by Agent or Lenders or required to be withheld or deducted from a payment to Agent or Lenders and any reasonable expenses arising therefrom or with respect thereto, whether or not such Non-Excluded 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 Borrowers by a Lender (with a copy to Agent), or by Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. The Borrowers will deliver promptly to Agent certificates or other valid vouchers for all Taxes or other charges deducted from or paid with respect to payments made by the Borrowers hereunder or under any other Loan Document. In the event a Lender receives a refund or credit of any Non-Excluded Taxes paid by the Borrowers pursuant to this section, such Lender will pay to the Borrowers the amount of such refund or credit (and any interest received with respect thereto) promptly upon receipt thereof; provided that if at any time thereafter such Lender is required to return such refund or credit, the Borrowers shall promptly repay to such Lender the amount of such refund or credit, net of any reasonable incremental additional costs.

 

(c)If a Lender is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document, such Lender shall deliver to the Borrowers, at the time or times reasonably requested by the Borrowers, such properly completed and executed documentation reasonably requested by the Borrowers as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, if reasonably requested by the Borrowers such Lender shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers as will enable the Borrowers to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding the generality of the foregoing, each Lender that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code) for U.S. federal income tax purposes (a “Non-U.S. Lender”), to the extent such Lender is lawfully able to do so, shall provide the Borrowers on or prior to the Closing Date (in the case of each Lender listed on the signature pages hereof on the Closing Date) or on or prior to the date of the Assignment and Acceptance Agreement or Accession Agreement pursuant to which it becomes a Lender (in the case of each other Lender), and at such other times as may be necessary in the determination of the Borrowers, with (x) two (2) original copies of Internal Revenue Service Form W-8BEN, W-8BEN-E, W- 8ECI and/or W-8IMY (or, in each case, any successor forms), properly completed and duly executed by such Lender, and any other such duly executed form(s) or statement(s) (including whether such Lender has complied with the FATCA) which may, from time to time, be prescribed by law and, which, pursuant to applicable provisions of (i) an income tax treaty between the United States and the country of residence of such Lender,

(ii) the Code, or (iii) any applicable rules or regulations in effect under (i) or (ii) above, establish that such Lender is not subject to deduction or withholding of United States federal income tax with respect to any payments to such Lender of principal, interest, fees or other amounts payable under any of the Loan Documents, or (y) if such Lender is not a “bank” or other Person described in Section 881(c)(3) of the Code, a Certificate Regarding Non-Bank Statuscertificate regarding non-bank status together with two (2) original copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or any successor form), properly completed and duly executed by such Lender, and such other documentation required under the Code and requested by the Borrowers to establish that such Lender is not subject to deduction or withholding of United States federal income tax with respect to any payments to such Lender of interest payable under any of the Loan Documents. Each Lender that is a United States Person (as such term is defined in Section 7701(a)(30) of the Code) for United States federal income tax purposes (a “U.S. Lender”) shall provide the Borrowers on or prior to the Closing Date (or, if later, on or prior to the date on which such Lender becomes a party to this Agreement) two (2) original copies of Internal Revenue Service From W-9 (or any successor form), properly completed and duly executed by such Lender, certifying that such U.S. Lender is entitled to an exemption from United States backup withholding tax, or otherwise prove

 

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that it is entitled to such an exemption. If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers 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 Borrowers as may be necessary for the Borrowers 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 (for purposes of this sentence, “FATCA” shall include any amendments made to FATCA after the date of this Agreement). Each Lender required to deliver any forms, certificates or other evidence with respect to United States federal income tax withholding matters pursuant to this section hereby agrees, from time to time after the initial delivery by such Lender of such forms, certificates or other evidence, whenever a lapse in time or change in circumstances renders such forms, certificates or other evidence obsolete or inaccurate in any material respect, that such Lender shall promptly provide the Borrowers two (2) new original copies of Internal Revenue Service Form W-9, W-8BEN, W-8BEN- E, W-8ECI and/or W-8IMY (or, in each case, any successor form), a Certificate Regarding Non-Bank Status and two (2) original copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or any successor form), or any documentation required under applicable reporting requirements of FATCA, as the case may be, properly completed and duly executed by such Lender, and such other documentation required under the Code and requested by the Borrowers to confirm or establish that such Lender is not subject to deduction or withholding of United States federal income tax with respect to payments to such Lender under the Loan Documents, or notify the Borrowers of its inability to deliver any such forms, certificates or other evidence.

 

(d)

In the event it is reasonably necessary to determine the fair market value of the Commitments, Loans and/or other obligations under the Loan Documents for purposes of Treasury Regulation Section 1.1273-2(f), Agent shall assist Parent Borrower as reasonably requested in connection with making such determination (including by using commercially reasonable efforts to obtain quotes and sales prices for the Commitments, Loans and/or other obligations), and Agent shall promptly make any such determination by Parent Borrower available to Lenders in accordance with Treasury Regulation Section 1.1273-2(f)(9).

 

 

(e)

The obligations of the Borrowers to Lenders under this Agreement shall be absolute, unconditional and irrevocable, and shall be paid and performed strictly in accordance with the terms of this Agreement, under all circumstances whatsoever, including, without limitation, the following circumstances: (i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents; (ii) the existence of any claim, set-off, defense or any right which the Borrowers or any of their Subsidiaries or Affiliates may have at any time against Lenders (other than the defense of payment to Lenders in accordance with the terms of this Agreement) or any other Person, whether in connection with this Agreement, any other Loan Document, or any unrelated transaction; (iii) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; (iv) the occurrence of any Default or Event of Default; and (v) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, provided that nothing contained herein shall relieve Agent or any Lender for liability to the Borrowers arising as a result of gross negligence or willful misconduct on the part of Agent or such Lender, as applicable, as determined by a court of competent jurisdiction after the exhaustion of all applicable appeal periods.

 

 

§4.5 Computations. All computations of interest on the Loans and of other fees to the extent applicable shall be based on a 360-day year and paid for the actual number of days elapsed. Except as otherwise provided in the definition of the term “Interest Period” with respect to LIBOR Rate Loans, whenever a payment hereunder or under any of the other Loan Documents becomes due on a day that is not a Business Day, the due date for such payment shall be extended to the next succeeding Business Day, and interest shall accrue during such extension. The Outstanding Loans as reflected on the records of Agent from time to time shall be considered prima facie evidence of such amount.

 

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§4.6 Suspension of LIBOR Rate Loans. (a) In the event that, prior to the commencement of any Interest Period relating to any LIBOR Rate Loan, (i) Agent shall determine that adequate and reasonable methods do not exist for ascertaining LIBOR for such Interest Period, or (ii) Agent shall reasonably determine that LIBOR will not accurately and fairly reflect the cost of Lenders making or maintaining LIBOR Rate Loans for such Interest Period, Agent shall forthwith give notice of such determination (which shall be conclusive and binding on the Borrowers and Lenders absent manifest error) to the Borrowers and Lenders. In such event (x) the Loan Request with respect to a LIBOR Rate Loan shall be automatically withdrawn and shall be deemed a request for a Base Rate Loan and (y) each LIBOR Rate Loan will automatically, on the last day of the then current Interest Period applicable thereto, become a Base Rate Loan, and the obligations of Lenders to make LIBOR Rate Loans shall be suspended until Agent determines that the circumstances giving rise to such suspension no longer exist, whereupon Agent shall so notify the Borrowers and Lenders promptly after such determination.

 

(b) Notwithstanding clause (a) of this §4.6 or any other provision of this Agreement or any other  Loan Document, if Agent determines (which determination shall be conclusive absent manifest error) or the Borrowers or Required Lenders notify Agent (with, in the case of the Required Lenders, a copy to the Borrowers) that the Borrowers or Required Lenders (as applicable) have determined, that (i) adequate and reasonable means do not exist for ascertaining the LIBOR Screen Rate for any requested Interest Period, including because the LIBOR Screen Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or, (ii) the administrator of the LIBOR Screen Rate or a Governmental Authority having jurisdiction over Agent has made a public statement identifying a specific date after which the ICE Benchmark Administration Limited LIBOR Rate (“ICE LIBOR”) or the LIBOR Screen Rate shall no longer be made available, or be used for determining interest rates for loans, or (iii) syndicated loans currently being executed, or that include language similar to that contained in this §4.6(b), are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace ICE LIBOR, then reasonably promptly after such determination by Agent or receipt by Agent of such notice, as applicable, Agent and the Borrowers shall negotiate in good faith and endeavor to establish an alternate rate of interest to the LIBOR Screen Rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein) that gives due consideration to the then prevailing market convention for determining a rate of interest for similar syndicated loans denominated in Dollars at such time, and shall, notwithstanding anything to the contrary in §27, enter into an amendment to this Agreement to reflect such alternate rate of interest, any proposed Successor Rate Conforming Changes, any necessary adjustment to the Applicable Margin (which adjustment shall be equal to the difference (calculated as of a date specified in such amendment) between (i) such alternate rate of interest plus the Applicable