EX-10.1 2 ck0001528985-ex101_6.htm EX-10.1 ck0001528985-ex101_6.htm

Exhibit 10.1

 

FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT

 

 

FIRST AMENDMENT, dated as of September 29, 2020 (this “Agreement”), to the Amended and Restated Credit Agreement (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, including by this Agreement, the “Credit Agreement”) dated as of August 1, 2018, among Inland Real Estate Income Trust, Inc., a Maryland corporation (the “Borrower”), the Lenders party thereto and KeyBank National Association, as Administrative Agent. Capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Credit Agreement.

 

WHEREAS, the Borrower, the Lenders party hereto and the Administrative Agent desire to modify the Credit Agreement as herein set forth subject to the terms and conditions provided for in this Agreement.

 

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

 

SECTION 1. Amendments to Credit Agreement. Subject to all of the terms and conditions set forth in this Agreement, the Borrower, the Lenders and the Administrative Agent hereby agree that the Credit Agreement (other than the schedules and exhibits thereto) is amended to incorporate the changes marked 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: underlined text) as set forth on the copy of the Credit Agreement attached as Annex I.

 

SECTION 2. Waivers to the Loan Agreement.

 

Commencing with the fiscal quarter ending September 30, 2020 and continuing through (and including) the fiscal quarter ending March 31, 2021 (the “Waiver Period”), the Credit Agreement shall be deemed modified and amended to waive compliance by the Borrower with the provisions of Section 6.16 of the Credit Agreement (collectively, the “Subject Provisions”), and no breach, Unmatured Default or Default shall exist or arise under the Credit Agreement as a result of the Borrower’s failure to comply with the Subject Provisions during the Waiver Period.

 

Without limiting the generality of the provisions of Section 8.2 of the Credit Agreement, the waiver set forth in this Section 2 shall be limited precisely as written, and nothing herein shall be deemed to (a) constitute a waiver of compliance by the Borrower with respect to (i) the Subject  Provisions other than during the Waiver Period or (ii) any other term, provision or condition of the Loan Documents or any other instrument or agreement referred to in any of them, or (b) prejudice any right or remedy that any Lender may now have or may have in the future under or in connection with the Credit Agreement, the other Loan Documents or any other instrument or agreement referred to in any of them or under applicable laws other than in respect of the Subject Provisions during the Waiver Period. For the avoidance of doubt, the waiver of the Subject Provisions set forth herein shall not extend beyond the last day of the Waiver Period and such waiver shall be of no force or effect for any purpose other than in respect of the Subject Provisions during the Waiver Period (which waiver for such time period shall remain and continue) after the last day of the Waiver Period.

 

 

 

 

 

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SECTION 3. Conditions of Effectiveness. This Agreement shall become effective as  of the first date (the “First Amendment Effective Date”) that all of the following conditions precedent shall have been satisfied:

 

3.1The Administrative Agent’s receipt of the following, each of which shall be e- mails (in a .pdf format) or telecopies (in each case, followed promptly by originals to the extent set forth below or otherwise requested by the Administrative Agent) unless otherwise specified and each in form and substance satisfactory to the Administrative Agent:

 

(a)counterparts of this Agreement, in such number as requested by the Administrative Agent, duly executed by the parties hereto;

 

(b)such certificates of resolutions or other action, incumbency certificates and/or other certificates of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each officer thereof authorized to act in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;

 

(c)such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization;

 

(d)a favorable opinion of Venable LLP and Proskauer Rose LLP, each counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters concerning the Loan Parties, this Agreement and the other Loan Documents as the Administrative Agent may reasonably request;

 

(e)a certificate of the Borrower to the effect that (i) the conditions specified in Sections 3.2 and 3.3 have been satisfied and (ii) no event has occurred and is continuing which constitutes an Unmatured Default; and

 

(f)such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.

 

3.2The representations and warranties contained in Section 4 of this Agreement are correct on and as of the First Amendment Effective Date, as though made on and as of such date other than any such representations or warranties that, by their terms, refer to another date, in which case such representations and warranties shall have been correct as of such other date.

 

3.3There shall not have occurred since June 30, 2020, any event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect (excluding any event or circumstance resulting from the COVID-19 pandemic to the extent such event or circumstance has been has been publicly disclosed by the Borrower in its securities filings or disclosed by the Borrower to the Administrative Agent and the Lenders prior to the First Amendment Effective Date, and the scope of such adverse effect is no greater than that which has been disclosed).

 

3.4The Administrative Agent and each Lender shall have received all documentation and other information that the Administrative Agent or such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering

 

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rules and regulations, including the U.S. Patriot Act, and the Beneficial Ownership Regulation, in each case, to the extent requested at least five Business Days prior to the First Amendment Effective Date.

 

3.5Any fees owed to any Lender or Arranger required to be paid on or before the First Amendment Effective Date shall have been paid.

 

SECTION 4. Representations and Warranties. Each of the Loan Parties hereby certifies to the Administrative Agent and the Lenders that as of the date hereof and after giving effect to this Agreement, the representations and warranties set forth in the Credit Agreement and in the other Loan Documents and all such representations and warranties shall be true and correct in all material respects on the date hereof with the same force and effect as if made on such date (except to the extent

(i)such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct as of such earlier date, (ii) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects after giving effect to such qualification and (iii) for purposes of this Section 4, the representations and warranties contained in Section 5.4 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to Section 6.1 of the Credit Agreement). Each of the Loan Parties represents and warrants (which representations and warranties shall survive the execution and delivery hereof) to the Administrative Agent and the Lenders that:

 

(a)it has all requisite power and authority to execute, deliver and perform its obligations under this Agreement and the transactions contemplated hereby and has taken or caused to be taken all necessary action to authorize the execution, delivery and performance of this Agreement and the transactions contemplated hereby;

 

(b)no approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement, except for filings for reporting purposes required under applicable securities laws;

 

(c)this Agreement has been duly executed and delivered on its behalf by a duly authorized officer, and constitutes its legal, valid and binding obligation enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy insolvency, reorganization, receivership, moratorium or other laws affecting creditors’ rights generally and by general principles of equity;

 

(d)no Unmatured Default shall exist or would result from the consummation of the transactions contemplated by this Agreement;

 

 

(e)

the execution, delivery and performance by it of this Agreement will not

(i) contravene the terms of any of its organization documents; (ii) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (x) any contractual obligation to which such Loan Party is a party or affecting such Loan Party or the properties of such Loan Party or any of its Subsidiaries or (y) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (iii) violate any applicable law; and

 

(f)since June 30, 2020, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse

 

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Effect (excluding any event or circumstance resulting from the COVID-19 pandemic to the extent such event or circumstance has been publicly disclosed by the Borrower in its securities filings or disclosed in writing by the Borrower to the Administrative Agent and the Lenders prior to the First Amendment Effective Date, and the scope of such adverse effect is no greater than that which has been disclosed).

 

SECTION 5. Amendment Fee; Costs and Expenses. The Borrower shall pay to the Administrative Agent for the benefit of each Lender that consents to this Amendment by delivering to the Administrative Agent an executed counterpart of this Amendment (each, a “Consenting Lender”) a consent fee in an amount equal to five basis points (0.05%) of such Lender’s Commitment as of the First Amendment Effective Date, payable on the, and subject to the occurrence of the, First Amendment Effective Date. In addition, the Borrower acknowledges and agrees that its payment obligations set forth in Section 9.7 of the Credit Agreement include the costs and expenses incurred by the Administrative Agent in connection with the preparation, execution and delivery of this Agreement and any other documentation contemplated hereby (whether or not this Agreement becomes effective or the transactions contemplated hereby are consummated and whether or not any Unmatured Default or Default has occurred or is continuing), including, but not limited to, the reasonable fees and disbursements of Dentons US LLP, counsel to the Administrative Agent.

 

SECTION 6. Ratification.

 

(a)The Credit Agreement, as amended by this Agreement, and the other Loan Documents remain in full force and effect and are hereby ratified and affirmed by the Loan Parties. The amendments contained in Section 1 hereof shall be deemed to have prospective application only. This Agreement is not intended to and shall not constitute a novation. Each of the Loan Parties hereby

(i) confirms and agrees that the Borrower is truly and justly indebted to the Administrative Agent and the Lenders in the aggregate amount of the Obligations without defense, counterclaim or offset of any kind whatsoever, other than payment in full, and (ii) reaffirms and admits the validity and enforceability of the Credit Agreement, as amended by this Agreement, and the other Loan Documents.

 

(b)This Agreement shall be limited precisely as written and, except as expressly provided herein, shall not be deemed (i) to be a consent granted pursuant to, or a waiver, modification or forbearance of, any term or condition of the Credit Agreement, any other Loan Document or any of the instruments or agreements referred to therein or a waiver of any Unmatured Default or Default under the Credit Agreement, whether or not known to the Administrative Agent or any of the Lenders, or (ii) to prejudice any right or remedy which the Administrative Agent or any Lender may now have or have in the future against any Person under or in connection with the Credit Agreement, any other Loan Document or any of the instruments or agreements referred to therein or any of the transactions contemplated thereby.

 

SECTION 7. Modifications.  Neither this  Agreement, nor any provision  hereof, may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the parties hereto.

 

SECTION 8. References. The Loan Parties acknowledge and agree  that  this Agreement constitutes a Loan Document. Each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof,” “herein,” or words of like import, and each reference in each other Loan Document (and the other documents and instruments delivered pursuant to or in connection therewith) to the “Credit Agreement”, “thereunder”, “thereof” or words of like import, shall mean and be a reference to

 

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the Credit Agreement as modified hereby and as the Credit Agreement may in the future be amended, restated, supplemented or modified from time to time.

 

SECTION 9. Counterparts. This Agreement may be executed by the parties hereto individually or in combination, in one or more counterparts, each of which shall be an original and all of which shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page by telecopier or electronic mail (in a .pdf format) shall be effective as delivery of a manually executed counterpart. This Agreement may be executed using Electronic Signatures (including, without limitation, facsimile and .pdf) and shall be considered an original, and shall have the same legal effect, validity and enforceability as a paper record. For the avoidance of doubt, the authorization under this paragraph may include, without limitation, use or acceptance by the Administrative Agent of a manually signed paper hereof which has been converted into electronic form (such as scanned into .pdf format), or an electronically signed communication converted into another format, for transmission, delivery and/or retention. For purposes hereof, “Electronic Signature” shall have the meaning assigned to it by 15 USC

§7006, as it may be amended from time to time. Upon the reasonable request of the Administrative  Agent, any Electronic Signature of any other party hereto shall, as promptly as practicable, be followed by a manually executed counterpart thereof.

 

SECTION 10. Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

 

SECTION 11.  Severability.  If any provision of this Agreement shall be held invalid  or unenforceable in whole or in part in any jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such invalidity or enforceability without in any manner affecting the validity or enforceability of such provision in any other jurisdiction or the remaining provisions of this Agreement in any jurisdiction.

 

SECTION 12. Governing Law. THIS AGREEMENT AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS.

 

SECTION 13. Headings. Section headings in this Agreement are included for convenience of reference only and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.

 

[The remainder of this page left blank intentionally]

 

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IN WITNESS WHEREOF, Borrower, the Administrative Agent and the undersigned Lenders have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.

 

BORROWER:

INLAND REAL ESTATE INCOME TRUST, INC.,
a Maryland corporation

 

By:/s/ Catherine L. Lynch
Name:  Catherine L. Lynch
Title:  Chief Financial Officer

 

 

 


Signature Page to First Amendment to Amended and Restated Credit Agreement


 

The undersigned, being the Advisor, hereby consents to the foregoing Agreement and agrees that the Subordination Agreement which it executed and delivered shall continue in full force and effect with respect to the Credit Agreement, as amended by the Agreement, and to the other Loan Documents.

IREIT BUSINESS MANAGER & ADVISOR, INC.,

By:/s/ Cathleen M. Hrtanek
Name:  Cathleen M. Hrtanek
Title:  Secretary

 

 

 


Signature Page to First Amendment to Amended and Restated Credit Agreement


 

The undersigned, being all of the Subsidiary Guarantors as of the date hereof, hereby consent to the foregoing Agreement and agree that the Subsidiary Guaranty shall continue in full force and effect with respect to the Credit Agreement, as amended by the Agreement, and to the other Loan Documents.

 

 

SUBSIDIARY GUARANTORS:

 

IREIT Branson Hills Plaza - T, L.L.C.

IREIT Branson Hills, L.L.C.

IREIT Coral Springs North Hills, L.L.C.

IREIT Flowood Dogwood, L.L.C.

IREIT Frisco Marketplace, L.L.C.

IREIT Lake St. Louis Hawk Ridge, L.L.C.

IREIT Layton Pointe, L.L.C.

IREIT Little Rock Midtowne, L.L.C.

IREIT Little Rock Park Avenue, L.L.C.

IREIT Lynchburg Lakeside, L.L.C.

IREIT Mansfield Pointe, L.L.C.

IREIT Neenah Fox Point, L.L.C.

IREIT Newington Fair, L.L.C.

IREIT Ocean Isle Beach Landing, L.L.C.

IREIT Olive Branch Wedgewood, L.L.C.

IREIT Pleasant Prairie Plaza, L.L.C.

IREIT Pleasant Prairie Ridge, L.L.C.

IREIT Shoppes at Branson Hills – K, L.L.C.

IREIT South Jordan Oquirrh Mountain, L.L.C.

IREIT Stevens Point Pinecrest, L.L.C.

IREIT Turlock Blossom Valley, L.L.C.

IREIT West Bend Main, L.L.C.

IREIT West Valley City Lake Park, L.L.C.

IREIT Wilson Marketplace, L.L.C. and

IREIT Yorkville Marketplace, L.L.C.,

 

each a Delaware limited liability company

 

 

By:

Inland Real Estate Income Trust, Inc., a Maryland corporation, as sole member

 

 

By:/s/ Catherine L. Lynch

Name:  Catherine L. Lynch

Its:  Chief Financial Officer

 

 

 

 

Signature Page to First Amendment to Amended and Restated Credit Agreement


 

KEYBANK NATIONAL ASSOCIATION, as
Administrative Agent and a Lender

 

By:/s/ Nathan Weyer

Name:Nathan Weyer

Title:Senior Vice President

 

 


Signature Page to First Amendment to Amended and Restated Credit Agreement


 

PNC BANK, NATIONAL ASSOCIATION

 

 

By:/s/ Joel Dalson

Name:  Joel Dalson
Title:  Senior Vice President


Signature Page to First Amendment to Amended and Restated Credit Agreement


 

BANK OF AMERICA, N.A.

 

 

By:/s/ Bryan Frese
Name:  Bryan Frese
Title:  Senior Vice President


Signature Page to First Amendment to Amended and Restated Credit Agreement


 

FIFTH THIRD BANK,
an Ohio banking corporation

 

 

By:/s/ Leah Stayton

Name:  Leah Stayton

Title:  Officer


Signature Page to First Amendment to Amended and Restated Credit Agreement


 

SANTANDER BANK, N.A.

 

 

By:/s/ Denise L Dufresne

Name:  Denise L. Dufresne

Title:  Vice President, Credit Officer


Signature Page to First Amendment to Amended and Restated Credit Agreement


 

ASSOCIATED BANK, NATIONAL ASSOCIATION

 

 

By:/s/ Mitchell Vega

Name:  Mitchell Vega

Title:  Vice President


Signature Page to First Amendment to Amended and Restated Credit Agreement


 

BARCLAYS BANK PLC

 

 

By:/s/ Craig Malloy

Name:  Craig Malloy

Title:  Director


Signature Page to First Amendment to Amended and Restated Credit Agreement


 

FIRST TENNESSEE BANK NATIONAL ASSOCIATION

 

 

By:/s/ Jean M. Brennan

Name:  Jean M. Brennan

Title:  Sr. Vice President

 

Signature Page to First Amendment to Amended and Restated Credit Agreement


 

ANNEX I TO FIRST AMENDMENT

(marked copy of the Credit Agreement) (see attached)

 

 


 

 

 

 

 

AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF AUGUST 1, 2018

 

AMONG

 

INLAND REAL ESTATE INCOME TRUST, INC. AS BORROWER,

 

KEYBANK NATIONAL ASSOCIATION AS ADMINISTRATIVE AGENT,

 

KEYBANC CAPITAL MARKETS INC. AS JOINT LEAD ARRANGER,

 

PNC CAPITAL MARKETS LLC AS JOINT LEAD ARRANGER,

 

MERRILL LYNCH PIERCE, FENNER & SMITH INCORPORATED BOFA SECURITIES, INC.

AS JOINT LEAD ARRANGER,

 

PNC BANK, N.A.

AS CO-SYNDICATION AGENT,

 

BANK OF AMERICA, N.A. AS CO-SYNDICATION AGENT,

 

FIFTH THIRD BANK

AS CO-DOCUMENTATION AGENT

 

SANTANDER BANK, N.A.

AS CO-DOCUMENTATION AGENT AND

THE OTHER LENDERS

FROM TIME TO TIME PARTIES HERETO

 

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TABLE OF CONTENTS

Page

 

ARTICLE I. DEFINITIONS 1 ARTICLE II. THE CREDIT 3234

 

2.1.

Loans 3234

 

2.2.

Ratable and Non Ratable Advances 3536

 

2.3.

Periodic Principal Payments 3536

 

2.4.

Final Principal Payment 3637

 

2.5.

Unused Revolver Fee; Facility Fee 3637

 

2.6.

Other Fees 3738

 

2.7.

Minimum Amount of Each Revolving Credit Facility Advance 3738

 

2.8.

Method of Selecting Types and Interest Periods for New Advances 3738

 

2.9.

Conversion and Continuation of Outstanding Advances 3839

 

2.10.

Changes in Interest Rate, Etc. 3940

 

2.11.

Rates Applicable After Default 3940

 

2.12.

Method of Payment 3940

 

2.13.

Notes; Telephonic Notices 4041

 

2.14.

Interest Payment Dates; Interest and Fee Basis 4041

 

2.15.

Notification of Advances, Interest Rates and Prepayments 4042

 

2.16.

Swingline Advances 4142

 

2.17.

Lending Installations 4243

 

2.18.

Non-Receipt of Funds by the Administrative Agent 4243

 

2.19.

Replacement of Lenders under Certain Circumstances 4243

 

2.20.

Usury4345

 

2.21.

Extension of Revolving Credit Termination Date 4445

 

2.22.

Termination of Revolving Credit Commitments 4446

 

2.23.

Increase in Commitment 4546

 

2.24.

Unencumbered Properties 4950

 

2.25.

Inability to Determine Interest Rate 52Effect of Benchmark Transition Event53

ARTICLE IIA LETTER OF CREDIT SUBFACILITY 5357

2A.1    Obligation to Issue 5357 2A.2     Types and Amounts 5357 2A.3   Conditions 5458 2A.4    Procedure for Issuance of Facility Letters of Credit 5458 2A.5    Reimbursement Obligations; Duties of Issuing Bank 5559 2A.6   Participation5660

2A.7Payment of Reimbursement Obligations 5761 2A.8Compensation for Facility Letters of Credit 5862 2A.9Letter of Credit Collateral Account 5862 ARTICLE III. CHANGE IN CIRCUMSTANCES 5963

 

3.1.

Yield Protection 5963

 

3.2.

Changes in Capital Adequacy Regulations 6064

 

3.3.

Availability of Types of Advances 6064

 

3.4.

Funding Indemnification 6165

 

3.5.

Taxes 6165

 

3.6.

Lender Statements; Survival of Indemnity 6468

ARTICLE IV. CONDITIONS PRECEDENT 6468

 

4.1.

Initial Advance 6468

 

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4.2.

Each Advance and Issuance 6771

ARTICLE V. REPRESENTATIONS AND WARRANTIES 6771

 

5.1.

Existence6771

 

5.2.

Authorization and Validity 6772

 

5.3.

No Conflict; Government Consent 6872

 

5.4.

Financial Statements; Material Adverse Effect 6872

 

5.5.

Taxes 6873

 

5.6.

Litigation 6973

 

5.7.

Subsidiaries 6973

 

5.8.

ERISA 6973

 

5.9.

Accuracy of Information 6974

 

5.10.

Regulations of the Board 7074

 

5.11.

Material Agreements 7074

 

5.12.

Compliance With Laws 7074

 

5.13.

Ownership of Properties 7074

 

5.14.

Investment Company Act 7074

 

5.15.

Solvency7074

 

5.16.

Insurance7175

 

5.17.

REIT Status 7175

 

5.18.

Environmental Matters 7175

 

5.19.

Sanctions Laws and Regulations 7277

 

5.20.

Unencumbered Properties 7377

 

5.21.

Beneficial Ownership Certification 7377

ARTICLE VI. COVENANTS7377

 

6.1.

Financial Reporting 7377

 

6.2.

Use of Proceeds 7579

 

6.3.

Notice of Default 7579

 

6.4.

Conduct of Business 7579

 

6.5.

Taxes 7580

 

6.6.

Insurance7580

 

6.7.

Compliance with Laws 7680

 

6.8.

Maintenance of Properties 7680

 

6.9.

Inspection7680

 

6.10.

Maintenance of Status 7680

 

6.11.

Dividends; Distributions; Redemptions 7680

 

6.12.

[Intentionally Deleted] 7781

 

6.13.

Plan Assets 7781

 

6.14.

Liens 7782

 

6.15.

Affiliates 7782

 

6.16.

Consolidated Tangible Net Worth 7782

 

6.17.

Indebtedness and Cash Flow Covenants 7782

 

6.18.

Environmental Matters 7883

 

6.19.

Permitted Investments 7984

 

6.20.

Negative Pledges 8084

 

6.21.

Subsidiary Guaranty 8085

 

6.22.

Subordination of Advisor’s Fees 8085

 

6.23.

Mergers, Consolidations and Sales of Assets 8185

ARTICLE VII. DEFAULTS8186

 

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ARTICLE VIII. ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES 8388

 

8.1.

Acceleration8388

 

8.2.

Amendments 8489

 

8.3.

Preservation of Rights 8590

ARTICLE IX. GENERAL PROVISIONS 8691

 

9.1.

Survival of Representations 8691

 

9.2.

Governmental Regulation 8691

 

9.3.

[Intentionally Deleted]. 8691

 

9.4.

Headings 8691

 

9.5.

Entire Agreement8691

 

9.6.

Several Obligations; Benefits of the Agreement 8691

 

9.7.

Expenses; Indemnification 8691

 

9.8.

Numbers of Documents 8792

 

9.9.

Accounting8792

 

9.10.

Severability of Provisions 8893

 

9.11.

No Advisory or Fiduciary Responsibility 8893

 

9.12.

Choice of Law8994

 

9.13.

Consent to Jurisdiction 8994

 

9.14.

Waiver of Jury Trial 8994

9.15.Acknowledgment and Consent to Bail-In of EEAAffected Financial Institutions 8994 9.16.Acknowledgement Regarding Any Supported QFCs.95 ARTICLE X. THE ADMINISTRATIVE AGENT 9096

 

10.1.

Appointment 9096

 

10.2.

Powers 9097

 

10.3.

General Immunity 9197

 

10.4.

No Responsibility for Loans, Recitals, etc. 9197

 

10.5.

Action on Instructions of Lenders 9197

 

10.6.

Employment of Agents and Counsel 9198

 

10.7.

Reliance on Documents; Counsel 9298

 

10.8.

Administrative Agent’s Reimbursement and Indemnification 9298

 

10.9.

Rights as a Lender 9298

 

10.10.

Lender Credit Decision 9299

 

10.11.

Successor Administrative Agent 9399

 

10.12.

Notice of Defaults 93100

 

10.13.

Requests for Approval 94100

 

10.14.

Defaulting Lenders 94100

 

10.15.

Additional Agents 95101

ARTICLE XI. SETOFF; RATABLE PAYMENTS 95102

 

11.1.

Setoff 95102

 

11.2.

Ratable Payments 96102

ARTICLE XII. BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS 96102

 

12.1.

Successors and Assigns 96102

 

12.2.

Participations 96103

 

12.3.

Assignments 97103

 

12.4.

Dissemination of Information 98104

 

12.5.

Tax Treatment98105

 

12.6.

Confidentiality 98105

ARTICLE XIII. NOTICES99105

 

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13.1.Giving Notice 99105 ARTICLE XIV. PATRIOT ACT; BENEFICIAL OWNERSHIP REGULATION 100106 ARTICLE XV. COUNTERPARTS 100106

 

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EXHIBITS

 

EXHIBIT ACOMPLIANCE CERTIFICATE

EXHIBIT BASSIGNMENT AGREEMENT

EXHIBIT C-1LIST OF INITIAL SUBSIDIARY GUARANTORS EXHIBIT C-2LIST OF SPECIFIED SUBSIDIARIES

EXHIBIT DSUBSIDIARY GUARANTY

EXHIBIT E[RESERVED]

EXHIBIT FBORROWING NOTICE

EXHIBIT GAPPLICABLE MARGIN

EXHIBIT H-1LIST OF INITIAL UNENCUMBERED PROPERTIES EXHIBIT H-2LIST OF SPECIFIED UNENCUMBERED PROPERTIES EXHIBIT IFORM OF NOTE

EXHIBIT JFORM OF AMENDMENT REGARDING INCREASE EXHIBIT KSUBORDINATION AGREEMENT

SCHEDULE 1.1COMMITMENTS

SCHEDULE 5.6LITIGATION

SCHEDULE 5.7SUBSIDIARIES OF BORROWER SCHEDULE 5.18ENVIRONMENTAL MATTERS

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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AMENDED AND RESTATED CREDIT AGREEMENT

 

This Amended and Restated Credit Agreement (the “Agreement”) dated as of August 1, 2018, among Inland Real Estate Income Trust, Inc., a corporation organized under the laws of the State of Maryland (the “Borrower”), KeyBank National Association, a national banking association, and the several other banks, financial institutions and entities from time to time parties to this Agreement (collectively, the “Lenders”), and KeyBank National Association, not individually, but as “Administrative Agent”, amends and restates that certain Credit Agreement dated as of September 30, 2015, among the Borrower, certain of the Lenders, and KeyBank National Association as Administrative Agent, as amended by that certain Amendment Regarding Increase dated as of January 21, 2016, that certain Second Amendment to Credit Agreement dated as of October 25, 2016 and that certain Third Amendment to Credit Agreement dated as of April 17, 2017 (collectively, the “Original Credit Agreement”).

 

RECITALS

 

A.The Borrower is primarily engaged in the business of purchasing, owning, operating and leasing commercial real estate properties.

 

B.The Borrower has requested that the Administrative Agent and the Lenders enter into this Agreement to amend and restate the Original Credit Agreement, which provided only an unsecured revolving credit facility to Borrower, to add two term loan facilities and to make certain other changes to the terms and conditions of the Original Credit Agreement. The Administrative Agent and the Lenders have agreed to do so, on the terms set forth herein.

 

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

 

ARTICLE I. DEFINITIONS

As used in this Agreement:

 

“ABR Applicable Margin” means, as of any date, the Applicable Margin used to determine the Floating Rate as determined from time to time in accordance with the definition of “Applicable Margin”.

 

“Adjusted EBITDA” means, as of any date, an amount equal to the Adjusted NOI for the most recent four (4) fiscal quarters of the Borrower for which financial results have been reported, as adjusted by (i) adding thereto interest income and dividend income on Marketable Securities (but only to the extent dividend income does not constitute more than ten percent (10%) of total Adjusted EBITDA), (ii) deducting therefrom any income attributable to Excluded Tenants; (iii) adding or deducting for, as appropriate, any adjustment made under GAAP for straight lining of rents, gains or losses from sales of assets, extraordinary items, impairment  and other non-cash charges, depreciation, amortization, interest expenses, taxes; (iv) [reserved]; (v) adding thereto, without duplication, the Consolidated Group Pro Rata Share of

 

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the aggregate Net Operating Income for such period from Projects owned by Investment Affiliates at the end of such period, adjusted in the manner set forth in clauses (i) through (iv) of this sentence, and (vi) deducting therefrom the Borrower’s actual general and administrative expenses and asset management fees.

 

“Adjusted NOI” means with respect to any Project for any period, Net Operating Income of such Project for such period less the applicable Capital Reserves; provided, however, that in determining the Net Operating Income for any Project with an Excluded Tenant Replacement  for purposes of this definition of “Adjusted NOI”, the Net Operating Income from such Excluded Tenant Replacement shall be calculated as follows:

 

(i)with respect to any Excluded Tenant Replacement that has been paying rent and in occupancy of its space formerly leased (in whole or in part) to an Excluded Tenant at such Project for less than a full calendar quarter for which Borrower’s financial results have been reported, but is an Excluded Tenant  Replacement as of the end of such calendar quarter, the Net Operating Income from such Excluded Tenant Replacement shall be the pro forma Net Operating Income expected from such Excluded Tenant Replacement for the next calendar quarter, annualized,

 

(ii)with respect to any Excluded Tenant Replacement that has been paying rent and in occupancy of its space formerly leased (in whole or in part) to an Excluded Tenant at such Project for at least one full calendar quarter for which Borrower’s financial results have been reported but less than two full calendar quarters for which Borrower’s financial results have been reported, the Net Operating Income from such Excluded Tenant Replacement shall be the Net Operating Income from such Excluded Tenant Replacement for such first full calendar quarter, annualized,

 

(iii)with respect to any Excluded Tenant Replacement that has been paying rent and in occupancy of its space formerly leased (in whole or in part) to an Excluded Tenant at such Project for at least two full calendar quarters for which Borrower’s financial results have been reported but less than three full calendar quarters for which Borrower’s financial results have been reported, the Net Operating Income from such Excluded Tenant Replacement shall be the sum of the Net Operating Income from such Excluded Tenant Replacement for such two full calendar quarters, annualized,

 

(iv)with respect to any Excluded Tenant Replacement that has been paying rent and in occupancy of its space formerly leased (in whole or in part) to an Excluded Tenant at such Project for at least three full calendar quarters for which Borrower’s financial results have been reported but less than four calendar quarters for which Borrower’s financial results have been reported, the Net Operating Income from such Excluded Tenant Replacement shall be the sum of the Net Operating Income from such Excluded Tenant Replacement for such three full calendar quarters, annualized, and

 

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(v)with respect to any Excluded Tenant Replacement that has been paying rent and in occupancy of its space formerly leased (in whole or in part) to an Excluded Tenant at such Project for at least four calendar quarters for which Borrower’s financial results have been reported, the Net Operating Income from such Excluded Tenant Replacement shall thereafter be the Net Operating Income from such Excluded Tenant Replacement for such four calendar quarters.

 

“Administrative Agent” means KeyBank National Association in its capacity as agent for the Lenders pursuant to Article X, and not in its individual capacity as a Lender, and any successor Administrative Agent appointed pursuant to Article X.

 

“Advance” means a borrowing under the Revolving Credit Facility, Term Loan A Facility or Term Loan B Facility hereunder consisting of the aggregate amount of such several Loans made by one or more of the Lenders to the Borrower of the same Type and, in the case of LIBOR Rate Advances, for the same Interest Period, including for the Revolving Credit Facility, Swingline Advances.

 

“Advisor” means IREIT Business Manager & Advisor, Inc., in its capacity as advisor to the Borrower or any of its successors or assigns in such capacity.

 

“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.

 

“Affiliate” of any Person means any other Person directly or indirectly controlling, controlled by or under common control with such Person. A Person shall be deemed to control another Person if the controlling Person owns 10% or more of any class of voting securities (or other ownership interests) of the controlled Person or possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of the controlled Person, whether through ownership of stock, by contract or otherwise. In no event shall the Administrative Agent be deemed to be an Affiliate of the Borrower.

 

“Aggregate Commitment” means, as of any date, the aggregate of the then-current Commitments of all the Lenders, as such amounts may be increased or decreased hereafter in accordance with Section 2.22 and Section 2.23 hereof.

 

“Aggregate Revolving Credit Commitment” means, as of any date, the aggregate of the then-current Revolving Credit Commitments of all the Lenders, which, as of the date hereof, equal $200,000,000, as such amounts may be increased or decreased hereafter in accordance with Section 2.22 and Section 2.23 hereof.

 

“Agreement” is defined in the Preamble hereto.

 

“Agreement Effective Date” means the date this Agreement has been fully executed and delivered by the Borrower and the Lenders and the initial Advance hereunder has been made.

 

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“Alternate Base Rate” means, for any day, a rate of interest per annum equal to the highest of (i) the Prime Rate for such day, (ii) the sum of Federal Funds Effective Rate for such day plus 0.5% per annum, and (iii) the sum of the LIBOR Base Rate that would apply to a one month Interest Period beginning on such day, plus 1.00% per annum.

 

“Applicable Margin” means the applicable margin set forth in the pricing schedule contained in Exhibit G used in calculating the interest rate applicable to the various Types of Advances, subject to the conditions set forth in Exhibit G with respect to the effective date of changes in such applicable margins.

 

“Approved Bank” means any bank, finance company, insurance company or other financial institution (a) which has (i)(x) a minimum net worth of $500,000,000 and/or (y) total assets of $10,000,000,000, and (ii) a minimum long-term debt rating of (x) BBB+ or higher by S&P, and (y) Baa1 or higher by Moody’s, or (b) which is approved by the Administrative Agent, which approval shall not be unreasonably withheld.

 

“Arrangers” means, collectively, Keybanc Capital Markets Inc., PNC Capital Markets LLC and Merrill Lynch Pierce Fenner & Smith IncorporatedBofA Securities, Inc., in their  capacity as joint lead arrangers.

 

“Article” means an article of this Agreement unless another document is specifically referenced.

 

“Authorized Officer” means any of the President, Chief Executive Officer, Chief Accounting Officer, Chief Financial Officer, Chief Operating Officer, Secretary, Treasurer, Vice President or Assistant Secretary, or any equivalent officer, of Borrower, acting singly.

 

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

 

“Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, rule, regulation or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule, and (b)  with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

 

“Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.

 

“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

 

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“Borrower” means Inland Real Estate Income Trust, Inc., a corporation organized under the laws of the State of Maryland, and its permitted successors and assigns.

 

“Borrowing Date” means a date on which an Advance is made hereunder. “Borrowing Notice” is defined in Section 2.8.

“Business Day” means (i) with respect to any borrowing, payment or rate selection of LIBOR Rate Advances, a day (other than a Saturday or Sunday) on which banks generally are open in Cleveland, Ohio and New York, New York for the conduct of substantially all of their commercial lending activities and on which dealings in United States dollars are carried on in the London interbankLIBOR market and (ii) for all other purposes, a day (other than a Saturday or Sunday) on which banks generally are open in Cleveland, Ohio, and New York, New York for the conduct of substantially all of their commercial lending activities.

 

“Capital Reserves” means for any period of four (4) consecutive fiscal quarters, an amount equal to $0.15 per square foot for improved commercial real estate Projects. If  the  term Capital Reserves is used without reference to any specific Project, then the amount shall be determined on an aggregate basis with respect to all Projects of the Consolidated Group  and the Consolidated Group Pro Rata Share of all improved commercial real estate Projects of all Investment Affiliates. The Capital Reserves shall be calculated based on the total square footage of the Projects owned (or ground leased) at the end of the applicable fiscal quarter.

 

“Capitalization Rate” means 6.75%.

 

“Capitalized Lease” of a Person means any lease of Property imposing obligations on such Person, as lessee thereunder, which are required in accordance with GAAP to be capitalized on a balance sheet of such Person.

 

“Capitalized Lease Obligations” of a Person means the amount of the obligations of  such Person under Capitalized Leases which would be shown as a liability on a balance sheet of such Person prepared in accordance with GAAP.

 

“Cash Equivalents” means, as of any date:

 

 

(i)

securities issued or directly and fully guaranteed or insured by the

United States Government or any agency or instrumentality thereof having maturities of not more than one year from such date;

 

 

(ii)

mutual funds organized under the United States Investment

Company Act of 1940, as amended, rated AAm or AAm-G by S&P and P-1 by Moody’s;

 

 

(iii)

certificates of deposit or other interest-bearing obligations of a

bank or trust company which is a member in good standing of the Federal Reserve System having a short term unsecured debt rating of not less than A-2

 

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by S&P and not less than P-2 by Moody’s (or in each case, if no bank or trust company is so rated, the highest comparable rating then given to any bank or trust company, but in such case only for funds invested overnight or over a weekend) provided that such investments shall mature or be redeemable upon the option of the holders thereof on or prior to a date one month from the date of their purchase;

 

 

(iv)

certificates of deposit or other interest-bearing obligations of a

bank or trust company which is a member in good standing of the Federal Reserve System having a short term unsecured debt rating of not less than A-2 by S&P, and not less than P-2 by Moody’s and which has a long term unsecured debt rating of not less than BBB+ by Moody’s (or in each case, if no bank or trust company is so rated, the highest comparable rating then given to any bank or trust company, but in such case only for funds invested overnight or over a weekend) provided that such investments shall mature or be redeemable upon the option of the holders thereof on or prior to a date three months from the date of their purchase;

 

 

(v)

bonds or other obligations having a short term unsecured debt

rating of not less than A-2 by S&P and P-2 by Moody’s and having a long term debt rating of not less than BBB+ by Moody’s issued by or by authority of any state of the United States, any territory or possession of the United States, including the Commonwealth of Puerto Rico and agencies thereof, or any political subdivision of any of the foregoing;

 

 

(vi)

repurchase agreements issued by an entity rated not less than

A-2 by S&P, and not less than P-2 by Moody’s which are secured by U.S. Government securities of the type described in clause (i) of this definition maturing on or prior to a date one month from the date the repurchase agreement is entered into;

 

 

(vii)

short term promissory notes rated not less than A-2 by S&P, and

not less than P-2 by Moody’s maturing or to be redeemable upon the option of the holders thereof on or prior to a date one month from the date of their purchase; and

 

 

(viii)

commercial paper (having original maturities of not more than 365

days) rated at least A-2 by S&P and P-2 by Moody’s and issued by a foreign or domestic issuer who, at the time of the investment, has outstanding long-term unsecured debt obligations rated at least BBB+ by Moody’s.

 

“Change in Control” means (i) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Securities  Exchange Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the date hereof) of Borrower’s Equity Interests representing more than twenty-five

 

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percent (25%) of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of the Borrower; provided however, that Persons acquiring Equity Interests of Borrower from Borrower in connection with an acquisition or other transaction with Borrower, without any agreement among such Persons to act together to hold, dispose of, or vote such shares following the acquisition of such shares, shall not be considered a “group” for purposes of this clause (i); or (ii) any change in the majority of the Board of Directors or Board  of Trustees of Borrower during any twelve (12) month period, excluding any new directors or trustees whose election by such Board or whose nomination for election by the holders of Borrower’s Equity Interests was approved by a vote of a majority of the directors or trustees then still in office who were either directors or trustees at the beginning of such period or whose election or nomination for election was previously so approved. Notwithstanding  anything herein to the contrary, an internalization of the management of the Borrower through a termination of the Business Management Agreement between the Borrower and the Advisor and/or a termination of the Property Management Agreement between the Borrower and the Property Manager will not constitute a “Change in Control”. Notwithstanding anything in this definition to the contrary, the listing of the Equity Interests in the Borrower on a national stock exchange shall not per se constitute a Change in Control.

 

“CMBS” means commercial mortgage-backed securities representing ownership interests in pools of mortgage loans secured by income-producing properties.

 

“Code” means the Internal Revenue Code of 1986, as amended, reformed or otherwise modified from time to time.

 

“Commitment” means with respect to each Lender, the aggregate of (a) the Revolving Credit Commitment of such Lender, (b) the Term Loan A Commitment of such Lender and (c) the Term Loan B Commitment of such Lender.

 

“Commitment Increase” means an increase in the Aggregate Revolving Credit Commitment, the Term Loan A Commitments and/or the Term Loan B Commitments pursuant to Section 2.23.

 

“Commitment Increase Date” is defined in Section 2.23(c).

 

“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

 

“Consolidated Debt Service” means, for any period, without duplication, (a) Consolidated Interest Expense for such period plus (b) the aggregate amount of scheduled principal payments attributable to Consolidated Total Indebtedness taken into account in calculating Consolidated Interest Expense which were required to be made during such period (excluding optional, balloon and temporary amortization principal payments) plus (c) a percentage of scheduled principal payments by any Investment Affiliate on Indebtedness of such Investment Affiliate taken into account in calculating Consolidated Interest Expense which were required to be made during such period (excluding optional, balloon and temporary amortization principal

 

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payments), equal to the greater of (x) the percentage of the principal amount of such Indebtedness for which any member of the Consolidated Group is liable and (y) the Consolidated Group Pro Rata Share of such Investment Affiliate.

 

“Consolidated Group” means the Borrower and all Subsidiaries which are consolidated with it for financial reporting purposes under GAAP.

 

“Consolidated Group Pro Rata Share” means, with respect to any Investment Affiliate, the percentage of the total economic ownership interests held by the Consolidated Group in the aggregate, in such Investment Affiliate determined by calculating the percentage of the total then-current value of such Investment Affiliate that would be received by the Consolidated Group in the aggregate, upon liquidation of such Investment Affiliate, after repayment in full of all Indebtedness of such Investment Affiliate.

 

“Consolidated Interest Expense” means, on any date of determination, the sum of  (a) the Consolidated Group’s total interest expense incurred (in accordance with GAAP) for the most recent four (4) fiscal quarters for which financial results of the Borrower have been reported, including capitalized interest (but excluding interest funded under a construction loan), plus (b) the Consolidated Group Pro Rata Share of total interest expense incurred (in accordance with GAAP) by its Investment Affiliates for such period. Interest Expense shall exclude the effect of any mark to market of assumed debt pursuant to ASC 820 or ASC 805.

 

“Consolidated Tangible Net Worth” means, as of any date of determination, an amount equal to (a) Gross Asset Value as of such date minus (b) Consolidated Total Indebtedness as  of such date.

 

“Consolidated Total Indebtedness” means, as of any date of determination, without duplication, the sum of (a) all Indebtedness of the Consolidated Group in existence on such date, determined on a consolidated basis in accordance with GAAP (whether recourse or non-recourse), plus, without duplication, (b) the applicable Consolidated Group Pro Rata Share of any Indebtedness of each Investment Affiliate outstanding on such date other than Indebtedness of such Investment Affiliate to a member of the Consolidated Group.

 

“Construction-in-Progress” means, as of any date, for the Consolidated Group, the sum of all cash expenditures for land and improvements (including indirect costs internally allocated and development costs) in accordance with GAAP on Projects that are under construction or with respect to which construction is reasonably scheduled to commence within twelve (12) months of such date. For the purposes of calculating Construction-in-Progress of the Consolidated Group with respect to Projects under construction by Investment Affiliates, the Construction-in-Progress  of  the Consolidated Group on account  thereof  shall be the lesser of

(a) the Investment of the Consolidated Group in the applicable Investment Affiliate or (b) the applicable Consolidated Group Pro Rata Share of such Investment Affiliate times such Investment Affiliate’s cash expenditures for such Construction-in-Progress. A Project shall be considered Construction-in-Progress only until the first to occur of (i) the one year anniversary

 

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of substantial completion of such Project and (ii) the first day of the first fiscal quarter following the fiscal quarter in which such Project achieves 85% physical occupancy.

 

“Controlled Group” means all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control which, together with the Borrower or any of its Subsidiaries, are treated as a single employer under Section 414 of the Code.

 

“Conversion/Continuation Notice” is defined in Section 2.9.

 

“Debtor Relief Laws” means the Bankruptcy Code of the United States of America, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect.

 

“Default” means an event described in Article VII.

 

“Defaulting Lender” means, subject to Section 10.14, any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the Issuing Bank, the Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Facility Letters of Credit or Swingline Loans) within two (2) Business Days of the date when  due, (b) has notified the Borrower, the Administrative Agent or the Issuing Bank or Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become a subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of  the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not

 

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result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 10.14) upon delivery of written notice of such determination to the Borrower, the Issuing Bank, the Swingline Lender and each Lender.

 

“Default Rate” means the interest rate which may apply during the continuance of a Default pursuant to Section 2.11 which shall mean that (i) each LIBOR Rate Advance shall bear interest for the remainder of the applicable Interest Period at the rate otherwise applicable to such Interest Period plus 2% per annum and (ii) each Floating Rate Advance shall bear interest at a rate per annum equal to the Floating Rate otherwise applicable to the Floating Rate Advance plus 2% per annum.

 

“Departing Lender” is defined in Section 2.19.

 

“Designated Persons” means a person or entity (a) listed in the annex to, or otherwise subject to the provisions of, any Executive Order; (b) named as a “Specially Designated National and Blocked Person” (“SDN”) on the most current list published by OFAC at its official website or any replacement website or other replacement official publication of such list (the “SDN List”) or is otherwise the subject of any Sanctions Laws and Regulations; (c) in which an entity or person on the SDN List has 50% or greater ownership interest or that is otherwise controlled by an SDN.

 

“Dividend Payout Ratio” means, for any given period of time for any Person, the ratio of

(a)an amount equal to (i) 100% of all cash dividends or other distributions made in cash, direct or indirect, on account of any Equity Interest of such Person during such period, less, without duplication, (x) any amount of such dividends or distributions constituting Dividend Reinvestment Proceeds, and (y) any amount of such dividends or distributions constituting Preferred Dividends, to (b) ninety-five percent (95%) of Funds From Operations of such Person for such period, provided however that, in calculating the amount under preceding clause (a)(i), there shall be excluded from such clause (a)(i) the aggregate cash payments made for common share repurchases or redemptions during such period to the extent that such excluded cash payments do not exceed the aggregate Dividend Reinvestment Proceeds for such period, and only the cash payments in excess of such Dividend Reinvestment Proceeds shall be included in calculating such amount under clause (a)(i).

 

“Dividend Reinvestment Proceeds” means all dividends or other distributions, direct or indirect, on account of any Equity Interest of any Person which any holder(s) of such Equity Interest directs to be used, concurrently with the making of such dividend or distribution, for the purpose of purchasing for the account of such holder(s) additional Equity Interests in such Person or its subsidiaries.

 

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“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority,

(b)any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

 

“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

 

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

 

“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

 

“Economically Occupied” means, as of any date with respect to any space in any Project, that such space is then subject to a binding and enforceable lease with a tenant which

(i) is not an Affiliate of the Borrower, (ii) took initial occupancy of the demised premises (even if such demised premises are then vacant), (iii) is not an Excluded Tenant and (iv) is not more than thirty (30) days delinquent in payment of rent under such lease.

 

“Eligible Ground Lease” means an unsubordinated ground lease as to which no default has occurred and is continuing beyond the expiration of any applicable grace or cure period containing the following terms and conditions: (a) a remaining term (exclusive of any unexercised extension options) of thirty (30) years or more from the date the applicable Project was added to the Unencumbered Pool; (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 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 foreclosure, and fails to do  so and (d) reasonable transferability of the lessee’s interest under such lease, including ability  to sublease.

 

“Eligible Unencumbered Property” means any stabilized commercial property located in the United States which, as of any date of determination, (a) is wholly owned by the Borrower or a Wholly-Owned Subsidiary of the Borrower, in fee simple, or leased by the Borrower or a Wholly-Owned Subsidiary of the Borrower pursuant to an Eligible Ground Lease, (b) is a retail Project, an anchored mixed use Project, or a triple net leased Project, (c) is not subject to any Liens securing Indebtedness or any other Liens (other than Permitted Liens) or claims  (including restrictions on transferability or assignability) of any kind (including any such Lien, claim or restriction imposed by the organizational documents of any such Wholly-Owned Subsidiary), (d) is not subject to any agreement which prohibits or limits the ability of the Borrower or any such Wholly-Owned Subsidiary to create, incur, assume or suffer to exist any

 

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Lien thereon or upon the Equity Interests of any such Wholly-Owned Subsidiary, (e) is not subject to any agreement (excluding refinancing commitments relating to an Unencumbered Property, which is expected to be released from the Unencumbered Pool within ninety (90) days after the date of determination) which entitles any Person to the benefit of any Lien (other than Liens in favor of Lenders and other Permitted Liens) thereon or upon the Equity Interests of any such Wholly-Owned Subsidiary or would entitle any Person to the benefit of any Lien thereon or on such Equity Interests upon the occurrence of any contingency (including, without limitation, pursuant to an “equal and ratable” clause), (f) is not the subject of any material environmental, title or structural issue, as evidenced by a certification of the Borrower and (g) which, when aggregated with all other Unencumbered Properties then included in the Unencumbered Pool will result in the Unencumbered Properties as a whole being at least 85% Economically Occupied. No such Project owned by a Wholly-Owned Subsidiary shall be deemed to be an Eligible Unencumbered Property unless (i) all Equity Interests of each entity in the chain of ownership between such Wholly-Owned Subsidiary and Borrower is not subject to any of the matters described in clauses (c), (d) or (e) of the preceding sentence, (ii) no bankruptcy or insolvency has occurred and is continuing with respect to such Wholly-Owned Subsidiary or any entity in the chain of ownership between such Wholly-Owned Subsidiary and Borrower, (iii)  such Wholly-Owned Subsidiary has no Indebtedness (other than in favor of the Lenders or in favor of the Borrower or any of its Subsidiary Guarantors) and (iv) no such entity in the chain of ownership between such Wholly-Owned Subsidiary and Borrower has Indebtedness other than Indebtedness in favor of the Borrower or any of its Subsidiary Guarantors or Secured Indebtedness or Guarantee Obligations relating solely to Secured Indebtedness of such entity’s other direct or indirect Subsidiaries. Notwithstanding the foregoing, the Required Lenders may, in their sole discretion, elect to approve the addition of any Project which does not meet all of the criteria set forth in the first sentence of this definition as an Eligible Unencumbered Property despite such failure.

 

“Environmental Laws” includes, but is not limited to, the following statutes, as amended, any successor thereto, and any regulations promulgated pursuant thereto, and any state or  local statutes, ordinances, rules, regulations and the like addressing similar issues: the Comprehensive Environmental Response, Compensation and Liability Act; the Emergency Planning and Community Right to Know Act; the Hazardous Substances Transportation Act; the Resource Conservation and Recovery Act (including but not limited to Subtitle I relating to underground storage tanks); the Solid Waste Disposal Act; the Clean Water Act; the Clean Air Act; the Toxic Substances Control Act; the Safe Drinking Water Act; the Occupational Safety and Health Act; the Federal Water Pollution Control Act; the Federal Insecticide, Fungicide and Rodenticide Act; the Endangered Species Act; the National Environmental Policy Act; and the River and Harbors Appropriation Act.

 

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any rule or regulation issued thereunder.

 

“ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the

 

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Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated  as a single employer under Section 414 of the Code.

 

“ERISA Event” means (a) any Reportable Event; (b) the existence with respect to any Plan of an “accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.

 

“Equity Interest” means, with respect to any Person, any share of capital stock of (or other ownership or profit interests in) such Person, any warrant, option or other right for the purchase or other acquisition from such Person of any share of capital stock of (or other ownership or profit interests in) such Person, any security convertible into or exchangeable for any share of capital stock of (or other ownership or profit interests in) such Person or warrant, 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.

 

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

 

“Excluded Subsidiary” means, a Subsidiary which (A) owns Projects subject to Indebtedness and the terms of the loan documents for such Indebtedness preclude such Subsidiary from entering into the Subsidiary Guaranty, or (B) is an entity which owns only direct or indirect interests in Projects that are not Unencumbered Properties and that, in the aggregate, constitute less than 5% of Gross Asset Value.

 

“Excluded Swap Obligation” means, with respect to any Subsidiary Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the guarantee by such Subsidiary Guarantor of such Swap Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) (a) by virtue of such Subsidiary Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the guarantee of such Subsidiary Guarantor becomes or would become effective with respect to such Swap Obligation or (b) in the case of a Swap Obligation subject to a clearing requirement

 

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pursuant to Section 2(h) of the Commodity Exchange Act (or any successor provision thereto), because such Subsidiary Guarantor is a “financial entity,” as defined in Section 2(h)(7)(C)(i) the Commodity Exchange Act (or any successor provision thereto), at the time the guarantee of such Subsidiary Guarantor becomes or would become effective with respect to such related Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guarantee is or becomes illegal.

 

“Excluded Taxes” means, in the case of each Lender or applicable Lending Installation and the Administrative Agent, taxes imposed on its overall net income, and franchise taxes imposed on it, by any jurisdiction with taxing authority over the Lender and any United States federal withholding taxes imposed pursuant to FATCA.

 

“Excluded Tenants” means, as of any date, any tenant leasing space at one of the Projects that is subject to a voluntary or involuntary petition for relief under any federal or state bankruptcy codes or insolvency law unless such tenant’s lease obligations are guaranteed by an entity whose then current long-term, unsecured debt obligations are rated BBB- or above by S&P or Baa3 or above by Moody’s.

 

“Excluded Tenant Replacement” means a tenant under a lease with a term of at least three years who, pursuant to such lease, is paying rent and occupying space (in whole or in part) at a Project that was, prior to such Excluded Tenant Replacement taking possession of such space, most recently leased by an Excluded Tenant.

 

“Executive Order” has the meaning assigned to it in the definition of Sanctions Laws and Regulations.

 

“Facility” means, collectively, the Revolving Credit Facility, Term Loan A Facility and Term Loan B Facility.

 

“Facility Fee” is defined in Section 2.5(b).

 

“Facility Letter of Credit” means a Letter of Credit issued pursuant to Article IIA of this Agreement.

 

“Facility Letter of Credit Fee” is defined in Section 2A.8.

 

“Facility Letter of Credit Obligations” means, as at the time of determination thereof, all liabilities, whether actual or contingent, of the Borrower with respect to Facility Letters of Credit, including the sum of (a) the Reimbursement Obligations and (b) the aggregate undrawn face amount of the then outstanding Facility Letters of Credit.

 

“Facility Letter of Credit Sublimit” means $25,000,000.

 

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“Facility Termination Date” means the Revolving Credit Termination Date (as the same may be extended pursuant to Section 2.21 hereof), Term Loan A Maturity Date, or Term Loan B Maturity Date, as the context shall require.

 

“FATCA” means Section 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement with respect thereto.

 

“Federal Funds Effective Rate” shall mean, for any day, the rate per annum (rounded upward to the nearest one 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.”

 

“Fee Letter” is defined in Section 2.6.

 

First Amendment” means that certain First Amendment to Amended and Restated Credit Agreement by and among the Loan Parties, Administrative Agent, and the Lenders party thereto dated as of September 29, 2020.

 

“First Amendment Effective Date” means September 29, 2020.

 

Fitch” means Fitch Investor Services, Inc. and its successors.

 

“Fixed Charge Coverage Ratio” means, as of any date, (i) Adjusted EBITDA for the  most recent four (4) fiscal quarters of the Borrower for which financial results have been reported divided by (ii) the Fixed Charges for such four (4) fiscal quarters.

 

“Fixed Charges” shall mean, as of any date, the sum of (i) Consolidated Debt Service for the most recent four (4) fiscal quarters of Borrower for which financial results have been reported, plus (ii) all Preferred Dividends payable in cash on account of preferred stock or preferred operating partnership units of the Borrower or any other Person in the Consolidated Group with respect to the four (4) immediately preceding fiscal quarters of Borrower for which financial results have been reported.

 

“Floating Rate” means, for any day, a rate per annum equal to (i) the Alternate Base Rate for such day plus (ii) ABR Applicable Margin for such day, in each case changing when and as the Alternate Base Rate or ABR Applicable Margin changes.

 

“Floating Rate Advance” means an Advance which bears interest at the Floating Rate.

 

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“Floating Rate Loan” means a Loan which bears interest at the Floating Rate.

 

“Funds From Operations” means, for a given period, an amount equal to the net income (or loss) of the Consolidated Group for such period, computed in accordance with GAAP, excluding gains (or losses) from extraordinary items and sales of assets, impairment and other non-cash charges, plus acquisition fees and costs, prepayment or defeasance costs, other one-time charges and real estate depreciation and amortization, and after adjustments for unconsolidated affiliates.

 

“GAAP” means generally accepted accounting principles in the United States of America as in effect from time to time, applied in a manner consistent with that used in preparing the financial statements referred to in Section 6.1.

 

“Governmental Authority” means any nation or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.

 

“Gross Asset Value” means, as of any date of determination, the sum of all of the following of the Borrower and its Subsidiaries: (i) with respect to each stabilized Project owned by the Borrower or any Subsidiary for the most recent four (4) fiscal quarters of the Borrower for which financial results have been reported (A) the aggregate Adjusted NOI attributable to all such Projects which are then still owned by the Borrower or a member of the Consolidated Group divided by (B) the Capitalization Rate, plus (ii) with respect to all other Projects not so owned for such full period, but which are then still owned by the Borrower or a member of the Consolidated Group, the cost basis under GAAP of such Project, plus, without duplication, (iii) Construction-in-Progress then owned by a member of the Consolidated Group plus (iv) Unimproved Land to the extent owned by the Consolidated Group as of the end of the most recent fiscal quarter of the Borrower for which financial results have been reported (valued at GAAP book value), plus (v) Notes Receivable to the extent owned by the Consolidated Group as of the end of the most recent fiscal quarter of the Borrower for which financial results have been reported (valued at the lesser of book value and the outstanding principal balance under GAAP), plus (vi) Unrestricted Cash, Cash Equivalents and Marketable Securities owned by the Consolidated Group as of the end of the most recent fiscal quarter of the Borrower for which financial results have been reported, plus (vii) the applicable Consolidated Group Pro Rata Share of (A) Adjusted NOI for the most recent four (4) fiscal quarters of the Borrower for which financial results have been reported attributable to any Projects which are then still owned by an Investment Affiliate (excluding Adjusted NOI attributable to Projects not so owned for such entire four (4) fiscal quarter period) divided by (B) the Capitalization Rate, plus (viii) the applicable Consolidated Group Pro Rata Share of, the cost basis under GAAP of such Project, for any Projects then owned by an Investment Affiliate and first acquired by an Investment Affiliate on or after the first day of such period of four prior fiscal quarters, plus (ix)  the applicable Consolidated Group share of Construction-in-Progress then owned by an Investment Affiliate, plus (x) the applicable Consolidated Group Pro Rata Share of Unimproved Land owned by Investment Affiliates as of the end of such most recent fiscal quarter (valued at undepreciated GAAP book value, after taking into account any impairments), plus (xi) the

 

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applicable Consolidated Group Pro Rata Share of Notes Receivable owned by Investment Affiliates as of the end of such most recent fiscal quarter (valued at the lesser of book value  and the outstanding principal balance under GAAP), plus (xii) the applicable Consolidated Group Pro Rata Share of Unrestricted Cash, Cash Equivalents and Marketable Securities owned by Investment Affiliates as of the end of such most recent fiscal quarter. Assets which are pledged for Indebtedness that has been defeased will be excluded from Gross Asset Value.

 

“Guarantee Obligation” means, any obligation of (a) the guaranteeing person or (b) another Person (including, without limitation, any bank under any Letter of Credit) to induce the creation of which the guaranteeing person has issued a reimbursement, counter-indemnity or similar obligation, in either case guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or other obligations (exclusive of contractual indemnities and guarantees of non-monetary obligations (other than guarantees of completion) which have not yet been called on or quantified) (the “primary obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided, however, that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business or guarantees by the Borrower of liabilities under any interest rate lock agreement utilized to facilitate Indebtedness of another member of the Consolidated Group or an Investment Affiliate. The amount of any Guarantee Obligation shall be an amount equal to the stated or determinable amount of the primary obligation in respect of which such guaranty is made or, if not stated or determinable, the maximum reasonable anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as recorded on  the balance sheet and on the footnotes to the most recent financial statements of Borrower. Notwithstanding anything contained herein to the contrary, neither guarantees of completion nor guaranties of Non-Recourse Carve-outs shall be deemed to be Guarantee Obligations unless and until a claim for payment or performance has been made thereunder, at which time any such guaranty shall be deemed to be a Guarantee Obligation in an amount equal to any such claim. Subject to the preceding sentence, (i) in the case of a joint and several guaranty given by such Person and another Person, the amount of the guaranty shall be deemed to be 100% thereof except in circumstances where such other Person has pledged cash or Cash Equivalents to secure all or any part of such other Person’s guaranteed obligations, in which case the amount of such guaranty shall be reduced by the amount of such cash or Cash Equivalents, and (ii) in the case of a guaranty by a Person (whether or not joint and several) of an obligation which also constitutes Indebtedness of such Person, the amount of such guaranty shall be deemed to be only the guaranteed amount in excess of such Indebtedness of such Person. Notwithstanding anything contained herein to the contrary, Guarantee Obligations shall

 

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be deemed not to include guarantees of unused commitments or of the repayment of construction loans to the extent that the proceeds thereunder have not yet been drawn. All matters constituting “Guarantee Obligations” shall be calculated without duplication.

 

“Increase Notice” has the meaning set forth in Section 2.23(a).

 

“Indebtedness” means, with respect to a Person, at the time of computation thereof, all of the following (without duplication): (a) all obligations of such Person in respect of money borrowed (other than trade debt incurred in the ordinary course of business not more than 180 days past due); (b) all obligations of such Person, whether or not for money borrowed (i) represented by notes payable, or drafts accepted, in each case representing extensions of credit, (ii) evidenced by bonds, debentures, notes or similar instruments, or (iii) constituting purchase money indebtedness, conditional sales contracts, title retention debt instruments or other similar instruments, upon which interest charges are customarily paid or that are issued or assumed as full or partial payment for property or services rendered; (c) all obligations of such Person as a lessee or obligor under a Capitalized Lease; (d) all reimbursement obligations of such Person under any letters of credit or acceptances (whether or not the same have been presented for payment); (e) all Off-Balance Sheet Obligations of such Person; (f) all obligations of such Person in respect of any purchase obligation, repurchase obligation, takeout commitment or forward equity commitment (excluding agreements to purchase real estate in  the ordinary course of business and agreements to consummate Permitted Investments), in each case evidenced by a binding agreement (excluding any such obligation to the extent the obligation can be satisfied by the issuance of Equity Interests); (g) 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” and other similar exceptions to recourse liability until a 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 determined liabilities of a partnership in which it is a general partner which would constitute “Indebtedness” hereunder, 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 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; (h) all Indebtedness of another Person secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any lien on property or assets owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness or other payment obligation; and (i) such Person’s pro rata  share of the Indebtedness (based, in the case of the Consolidated Group, upon the Consolidated Group’s Pro Rata Share of such Investment Affiliates) of any Affiliate of such Person which is not consolidated with such Person for financial reporting purposes; provided that Indebtedness that would otherwise meet one of the requirements above that has been

 

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defeased shall not be deemed Indebtedness. All such figures shall be adjusted to negate the effects of ASC 805.

 

“Interest Period” means with respect to each amount bearing interest at a LIBOR based rate, a period of one, two, three or six months commencing on a Business Day, as selected by Borrower; provided, however, that (a) any Interest Period which would otherwise end on a day which is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall  end on the next preceding Business Day, (b) any Interest Period which begins on a day for which there is no numerically corresponding date in the calendar month in which such Interest Period would otherwise end shall instead end on the last Business Day of such calendar month.

 

“Initial Unencumbered Properties” is defined in Section 2.24.

 

“Investment” of a Person means any loan, advance (other than commission, travel and similar advances to officers and employees made in the ordinary course of business), extension of credit (other than accounts receivable arising in the ordinary course of business on terms customary in the trade), deposit account or contribution of capital by such Person to any other Person or any investment in, or purchase or other acquisition of, the stock, partnership  interests, notes, debentures or other securities of any other Person made by such Person.

 

“Investment Affiliate” means, with respect to any Person, any other Person (other than a Subsidiary of such Person) in whom such first Person holds an Investment, which Investment is accounted for in the financial statements of such Person on an equity basis of accounting and whose financial results would not be consolidated under GAAP with the financial results of such Person on the consolidated financial statements of such Person.

 

“Investment Grade Rating” means either a rating of BBB- or better from S&P or a rating of Baa3 or better from Moody’s.

 

“Issuance Date” is defined in Section 2A.4(a)(2). “Issuance Notice” is defined in Section 2A.4(c).

“Issuing Bank” means, with respect to each Facility Letter of Credit, the Lender which issues such Facility Letter of Credit. KeyBank shall be the sole Issuing Bank.

 

“Lenders” means the lending institutions listed on the signature pages of the Agreement, their respective successors and assigns, any other lending institutions that subsequently become parties to the Agreement.

 

“Lending Installation” means, with respect to a Lender, any office, branch, subsidiary or affiliate of such Lender.

 

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“Letter of Credit” of a Person means a letter of credit or similar instrument which is issued upon the application of such Person or upon which such Person is an account party or for which such Person is in any way liable.

 

“Letter of Credit Collateral Account” is defined in Section 2A.9. “Letter of Credit Request” is defined in Section 2A.4(a). “Leverage Based Pricing Schedule” is defined in Exhibit G.

“Leverage Ratio” means the percentage obtained by dividing Consolidated Total Indebtedness by Gross Asset Value.

 

“LIBOR” means the London interbank offered rate administered by ICE Benchmark Administration Limited.

 

“LIBOR Applicable Margin” means, as of any date, the Applicable Margin used to determine the LIBOR Rate as determined from time to time in accordance with the definition of “Applicable Margin”.

 

“LIBOR Base Rate” means, with respect to a LIBOR Rate Advance for the relevant Interest Period, the London interbank offered rate administered by ICE Benchmark Administration LimitedLIBOR (to the extent necessary, rounded upwards to the nearest one one-hundredth of one percent (0.01%)) for deposits in U.S. dollars as reported by any generally recognized financial information service as of 11:00 a.m. (London time) two Business Days  prior to the first day of such Interest Period, and having a maturity equal to such Interest Period, provided that, if no such ICE Benchmark Administration Limited LIBOR rate is available to the Administrative Agent, the applicable LIBOR Base Rate for the relevant Interest Period shall instead be the rate determined by the Administrative 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 interbankLIBOR 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 Administrative  Agent’s relevant LIBOR Rate Loan and having a maturity equal to such Interest Period, provided, that, if any such LIBOR rate shall be less than zerotwenty five basis points (0.25%), such rate shall be deemed to be zerotwenty five basis points (0.25%) for purposes of this Agreement.

 

“LIBOR Rate” means, for any Interest Period, the sum of (A) the LIBOR Base Rate applicable thereto divided by one minus the then-current Reserve Requirement and (B) the LIBOR Applicable Margin in effect from time to time during such Interest Period, changing when and as the LIBOR Applicable Margin changes.

 

“LIBOR Rate Advance” means an Advance which bears interest at a LIBOR Rate. “LIBOR Rate Loan” means a Loan which bears interest at a LIBOR Rate.

 

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“Lien” means any lien (statutory or other), mortgage, pledge, negative pledge, hypothecation, assignment, deposit arrangement, encumbrance or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including, without limitation, the interest of a vendor or lessor under any conditional sale, Capitalized Lease or other title retention agreement).

 

“Lien Properties” is defined in Section 2.24.

 

“Loan” means, with respect to a Lender, such Lender’s portion of any Advance.

 

“Loan Documents” means the Agreement, the Notes, the Subsidiary Guaranty, the Subordination Agreement and any other document from time to time evidencing or securing indebtedness incurred by the Borrower under this Agreement, as any of the foregoing may be amended or modified from time to time.

 

“Loan Parties” means the Borrower and the Subsidiary Guarantors.

 

“Management Fee” means, with respect to each Project for any period, an amount not to exceed the greater of (a) actual management fees payable with respect thereto and (b) three percent (3%) per annum on the aggregate base rent and percentage rent due and payable under leases at such Project. “Management Fee” shall exclude fees paid associated with the management of any construction projects and any leasing commissions paid with respect to  any Project.

 

“Marketable Securities” means (i) investments in Equity Interests or debt securities issued by any Person (other than an Investment Affiliate) which are publicly traded on a national exchange, and (ii) CMBS rated BB or better by S&P, Ba2 or better by Moody’s, or BB or better by Fitch, excluding Cash Equivalents. The value of any such assets, for purposes hereof and as of any date, shall be the market value of such Marketable Securities.

 

“Material Adverse Effect” means a material adverse effect on (i) the financial condition  or business of the Borrower and the Consolidated Group taken as a whole, (ii) the ability of the Borrower to perform its obligations under the Loan Documents in all material respects, or (iii)  the validity or enforceability of any of the Loan Documents.

 

“Materials of Environmental Concern” means any gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products or any hazardous or toxic substances, materials or wastes, defined or regulated as such in or under any Environmental Law, including, without limitation, asbestos, polychlorinated biphenyls and urea-formaldehyde insulation, but excluding substances of kinds and amounts ordinarily used or stored in similar properties for  the purposes of cleaning or other maintenance or operations or as inventory of tenants and otherwise in compliance with all Environmental Laws.

 

“Maximum Legal Rate” means the maximum nonusurious interest rate, if any, that at  any time or from time to time may be contracted for, taken, reserved, charged or received on  the indebtedness evidenced by the Notes and as provided for herein or in the Notes or other

 

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Loan Documents, under the laws of such state or states whose laws are held by any court of competent jurisdiction to govern the interest rate provisions hereof.

 

“Moody’s” means Moody’s Investors Service, Inc. and its successors.

 

“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.

 

“Negative Pledge” means, with respect to a given asset, any provision of a document, instrument or agreement (other than any Loan Document) which prohibits or purports to prohibit 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 such term shall not include any covenant, condition or restriction contained in any ground lease from a Governmental Authority (provided that the foregoing limitation shall not in any way waive or modify any of the conditions for qualification of a ground lease as an “Eligible Ground Lease” under the definition of such term).

 

“Net Operating Income” means, with respect any Project for any period, the sum of the following (without duplication): (a) rents and other revenues (including interest  income)  received in the ordinary course from such Project (excluding income from Excluded Tenants but, for the avoidance of doubt, including income from any and all Excluded Tenant Replacements) minus (b) all expenses paid or accrued related to the ownership, operating or maintenance of such Project, including but not limited to taxes, assessments and the like, insurance, utilities, payroll costs, maintenance, repair and landscaping expenses, marketing expenses, and general and administrative expenses (including an appropriate allocation for legal, accounting, advertising, marketing and other expenses incurred in connection with such Project, but specifically excluding general overhead expenses of the Borrower or any Subsidiary) minus (c) the Management Fee for such Property for such period. Net Operating Income will also be adjusted to remove any impact from straight line rents or from amortization of intangibles pursuant to ASC 805.

 

“Non-Recourse Carve-outs” is defined within the definition of “Non-Recourse Indebtedness”.

 

“Non-Recourse Indebtedness” means, with respect to any Person, Indebtedness for which the liability of such Person (except for liability for fraud, misrepresentation, misapplication of cash, waste, environmental claims and liabilities and other circumstances customarily excluded by institutional lenders from exculpation provisions and/or included in separate indemnification agreements in non-recourse financing of real estate, including, without  limitation, provisions converting such Indebtedness to recourse in connection with certain bankruptcy filings, transfer violations or other defaults (any such liability being referred to as “Non-Recourse Carve-outs”)) either is contractually limited to collateral securing such Indebtedness or is so limited by operation of law.

 

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“Non-U.S. Lender” is defined in Section 3.5(d).

 

“Note” means a promissory note, in substantially the form of Exhibit I hereto duly executed by the Borrower and payable to the order of a Lender in the amount of its  Commitment (which Note shall specify the type of Commitment as (a) the Revolving Credit Commitment of such Lender, (b) the Term Loan A Commitment of such Lender or (c) the Term Loan B Commitment of such Lender), including any amendment, modification, renewal or replacement of such promissory note.

 

“Note Receivable” means any Indebtedness owing to a member of the Consolidated Group which either is a recourse obligation of the obligor thereunder or is secured by a first-priority mortgage or deed of trust on commercial real estate having a value in excess of the amount of such Indebtedness or by a pledge of ownership interests in such commercial real estate and, in each case, which has been designated by the Borrower as a “Note Receivable” in its most recent compliance certificate.

 

“Notice” is defined in Article 13.

 

“Notice of Assignment” is defined in Section 12.3(b).

 

“Obligations” means the Advances, the Facility Letter of Credit Obligations and all accrued and unpaid fees and all other obligations of Borrower to the Administrative Agent or the Lenders arising under this Agreement or any of the other Loan Documents, provided, however, that the definition of ‘Obligations’ shall not include any guarantee by any Subsidiary Guarantor of any Excluded Swap Obligations of such Subsidiary Guarantor for purposes of determining any obligations of any Subsidiary Guarantor.

“OFAC” means the U.S. Department of the Treasury Office of Foreign Assets Control. “Off-Balance Sheet  Obligations”  means  liabilities  and  obligations of the Borrower, any

Subsidiary or any other Person in respect of “off-balance sheet arrangements” (as defined in

the SEC Off-Balance Sheet Rules) which Borrower would be required to disclose in the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section of Borrower’s report on Form 10-Q or Form 10-K (or its equivalents) which Borrower is required to file with the U.S. Securities and Exchange Commission or would be required to file if it were subject to the jurisdiction of the U.S. Securities and Exchange Commission (or any Governmental Authority substituted therefor).

 

“One Day LIBOR Rate” means, with respect to Swingline Advances only, for any day, the sum of (A) an interpolated rate, as determined by the Swingline Lender in its sole discretion for such day, equal to the LIBOR Base Rate that would apply to an Interest Period of one day plus (B) the LIBOR Applicable Margin.

“Original Credit Agreement” is defined in the Preamble hereto. “Other Taxes” is defined in Section 3.5(b).

 

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“Outstanding Facility Amount” means, at any time, the sum of all then outstanding Advances and Facility Letter of Credit Obligations.

 

“Outstanding Revolving Credit Amount” means, at any time, the sum of all then outstanding Advances under the Revolving Credit Facility and Facility Letter of Credit Obligations.

 

“Participants” is defined in Section 12.2.1.

 

“Payment Date” means, with respect to the payment of interest accrued on any Advance, (x) in the case of any Floating Rate Advance, the first day of  each calendar month and (y) in the case of any LIBOR Rate Advance, the last day of each Interest Period therefor; provided, however, that if any Interest Period for a LIBOR Rate Advance exceeds three (3) months, interest shall be payable with respect to such LIBOR Rate Advance in arrears in three-month intervals on the last day of each such three-month interval during the term of such Advance.

 

“Payout Restriction Period” is defined in Section 6.11(a).

 

“PBGC” means the Pension Benefit Guaranty Corporation, or any successor thereto.

 

“Percentage” means, as of any date for each Lender, the percentage of the Aggregate Commitment which is represented by such Lender’s Commitment, or if the Commitments have been terminated, the percentage of the total Outstanding Facility Amount which is represented by such Lender’s outstanding Loans, outstanding participations in Facility Letter of Credit Obligations and obligations with respect to outstanding Swingline Advances.

 

“Permitted Investments” are defined in Section 6.19.

 

“Permitted Liens” means (a) Liens for taxes, assessments or governmental charges or levies on a Project if the same shall not at the time be delinquent or thereafter can be paid without penalty, or are being contested in good faith and by appropriate proceedings and for which adequate reserves shall have been set aside on its books; (b) Liens imposed by law, such as carriers’, warehousemen’s and mechanics’ liens and other similar liens arising in the ordinary course of business which secure payment of obligations not more than sixty (60) days past due or which are being contested in good faith by appropriate proceedings and for which adequate reserves shall have been set aside on its books and there is no risk of loss, forfeiture, or sale of any interest in a Project during the pending of such proceeding; (c) Liens arising out  of pledges or deposits under workers’ compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation; (d) easements, restrictions and such other encumbrances or charges against real property as are of a nature generally existing with respect to properties of a similar character and which do not in any material and adverse way affect the marketability of the same or materially and adversely interfere with the use thereof in the business of the Borrower or its Subsidiaries; (e) the rights of tenants under leases or subleases at a Project not interfering with the ordinary conduct of

 

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business of the owner of such Project; (f) Liens securing judgments that do not otherwise give rise to a Default or Unmatured Default; (g) utility deposits and other deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, purchase contracts, construction contracts, governmental contracts, statutory obligations, surety bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business; and (h) Liens for purchase money obligations for equipment (or Liens to secure Indebtedness incurred within 90 days after the purchase of any equipment to pay all or a  portion of the purchase price thereof or to secure Indebtedness incurred solely for the purpose of financing the acquisition of any such equipment, or extensions, renewals, or replacements of any of the foregoing for the same or lesser amount), provided that (l) the Indebtedness secured by any such Lien does not exceed the purchase price of such equipment, (ll) any such Lien encumbers only the asset so purchased and the proceeds upon sale, disposition, loss or destruction thereof, and (lll) such Lien, after giving effect to the Indebtedness secured thereby, does not give rise to a Default or Unmatured Default.

 

“Person” means any natural person, corporation, limited liability company, joint venture, partnership, association, enterprise, trust or other entity or organization, or any government or political subdivision or any agency, department or instrumentality thereof.

 

“Plan” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

 

“Plan Assets” means the assets of an employee benefit plan within the meaning of 29 C.F.R. 2510.3-101.

 

“Preferred Dividends” means, with respect to any entity, dividends or other distributions which are payable to holders of any ownership interests in such entity which entitle the holders of such ownership interests to be paid on a preferred basis prior to dividends or other distributions to the holders of other types of ownership interests in such entity.

 

“Prime Rate” means a rate per annum equal to the prime rate of interest publicly announced from time to time by Administrative Agent or its parent as its prime rate (which is not necessarily the lowest rate charged to any customer), changing when and as said prime rate changes. In the event that there is a successor to the Administrative Agent by merger, or the Administrative Agent assigns its duties and obligations to an Affiliate, then the  term “Prime Rate” as used in this Agreement shall mean the prime rate, base rate or other analogous rate of the new Administrative Agent.

 

“Pro Forma Calculations” is defined in Section 2.24(c).

 

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“Project” means any real estate asset located in the United States owned by the Borrower or any of its Subsidiaries or any Investment Affiliate, and operated or intended to be operated as a commercial property allowable under the Permitted Investments definition.

 

“Property” of a Person means any and all property, whether real, personal, tangible, intangible, or mixed, of such Person, or other assets owned, leased or operated by such Person.

 

“Property Manager” means Inland Commercial Real Estate Services LLC, in its capacity as property manager for the Borrower or any of its successors or assigns in such capacity.

 

“Purchasers” is defined in Section 12.3(a).

 

“Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Loan Party that has total assets exceeding $10,000,000 at the time the relevant guarantee becomes or would become effective with respect to such Swap Obligation or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as such an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

 

“Ratings Based Pricing Schedule” is defined in Exhibit G.

 

“Record” means the grid attached to any Note (which, pursuant to and in accordance with Section 2.13, each Lender is authorized to complete), or the continuation of such grid, or any other similar record, including computer records, maintained by the Administrative Agent with respect to any Loan referred to in such Note.

 

“Recourse Indebtedness” means any Indebtedness of the Borrower or any other member of the Consolidated Group for borrowed money with respect to which the liability of the obligor for payment is not limited to the obligor’s interest in specified assets securing such Indebtedness (either contractually or by virtue of the fact that such obligor owns no material assets other than those securing such Indebtedness), provided, however, that the existence of personal recourse of such obligor or others for any such Indebtedness on account of Non-Recourse Carve-outs shall not, by itself, cause such Indebtedness to be characterized as Recourse Indebtedness. For purposes of the foregoing and for the avoidance of doubt, (a) if the Indebtedness is partially guaranteed then the portion of such Indebtedness that is not so guaranteed shall still not constitute Recourse Indebtedness if it otherwise satisfies the requirements in this definition, (b) if the liability of a guarantor under any such guaranty is itself limited solely to specific assets of such guarantor then such Indebtedness shall only constitute Recourse Indebtedness by virtue of such guaranty to the extent of then-current value of such specified assets of such guarantor and (c) if such obligor is acting as a guarantor of Indebtedness for purposes of minimizing taxes on the creation of the deed of trust or mortgage securing such Indebtedness and such obligor’s liability does not exceed the value of the assets

 

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securing such Indebtedness then such obligor’s guarantee obligations shall not constitute Recourse Indebtedness.

 

“Regulation D” means Regulation D of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor thereto or other regulation or official interpretation of said Board of Governors relating to reserve requirements applicable to member banks of the Federal Reserve System.

 

“Regulation U” means Regulation U of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor or other regulation or official interpretation of said Board of Governors relating to the extension of credit by banks for the purpose of purchasing or carrying margin stocks applicable to member banks of the Federal Reserve System.

 

“Reimbursement Obligations” means at any time, the aggregate of the Obligations of the Borrower to the Lenders, the Issuing Bank and the Administrative Agent in respect of all unreimbursed payments or disbursements made by the Lenders, the Issuing Bank and the Administrative Agent under or in respect of the Facility Letters of Credit.

 

“Reportable Event” means a reportable event as defined in Section 4043 of ERISA and the regulations issued under such section, with respect to a Plan, excluding, however, such events as to which the PBGC by regulation waived the requirement of Section 4043(a) of  ERISA that it be notified within 30 days of the occurrence of such event, provided, however,  that a failure to meet the minimum funding standard of Section 412 of the Code and of Section 302 of ERISA shall be a Reportable Event regardless of the issuance of any such waiver of the notice requirement in accordance with either Section 4043(a) of ERISA or Section 412(d) of the Code.

 

“Required Lenders” means Lenders in the aggregate having at least 51% of the Aggregate Commitment or, if the Aggregate Commitment has been terminated, Lenders in the aggregate holding at least 51% of the aggregate unpaid principal amount of the outstanding Advances, provided that (i) the Commitment and Advances held by any then-current Defaulting Lender shall be subtracted from the Aggregate Commitment and the outstanding Advances solely for the purpose of calculating the Required Lenders at such time and (ii) at such times as there are two or more Lenders hereunder, the “Required Lenders” must include at least two of such Lenders even if one Lender holds more than 51% of the Aggregate Commitment or aggregate Advances and Facility Letter of Credit Obligations.

 

“Reserve Requirement” means, with respect to a LIBOR Rate Loan and Interest Period, that percentage (expressed as a decimal) which is in effect on such day, as prescribed by the Federal Reserve Board or other Governmental Authority having jurisdiction with respect thereto for determining the maximum reserves (including, without limitation, basic, supplemental, marginal and emergency reserves) for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D) maintained by a member bank of the Federal Reserve System.

 

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Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.

 

“Revolving Credit Commitment” means, for each Revolving Credit Lender, the obligation of such Lender to make Revolving Credit Loans on the terms and conditions set forth herein not exceeding the amount identified on Schedule 1.1, as such amount may be modified from time  to time pursuant to the terms hereof.

 

“Revolving Credit Facility” means the facility hereunder pursuant to which (i) the Revolving Credit Lenders hereunder will make Revolving Credit Loans to Borrower as more particularly described in Article II, (ii) the Swingline Lender will make Swingline Loans to the Borrower with the support of the Revolving Credit Lenders, as more particularly described in Section 2.16, and (iii) the Issuing Bank will make Facility Letters of Credit available to Borrower with the support of the Revolving Credit Lenders, as more particularly described in Article IIA.

 

“Revolving Credit Lenders” means, collectively, the Lenders which have a Revolving Credit Commitment, or if the Revolving Credit Commitments have been terminated, the Lenders which have any Outstanding Revolving Credit Amount, the initial Revolving Credit Lenders being identified on Schedule 1.1 hereto.

 

“Revolving Credit Loan” means a Loan to Borrower made by a Revolving Credit Lender as part of an Advance under the Revolving Credit Facility.

 

“Revolving Credit Percentage” means, as of any date for each Lender, the percentage  of the Aggregate Revolving Credit Commitment which is represented by such Lender’s Revolving Credit Commitment, or if the Revolving Credit Commitments have been terminated, the percentage of the total Outstanding Revolving Credit Amount which is represented by such Lender’s outstanding Revolving Credit Loans, outstanding participations in Facility Letter of Credit Obligations and obligations with respect to outstanding Swingline Advances.

 

“Revolving Credit Termination Date” means August 1, 2022, as such date may be extended pursuant to Section 2.21 hereof.

 

“Sanctions Laws and Regulations” means (a) any sanctions, prohibitions or requirements imposed by any executive order (an “Executive Order”) or by any sanctions program administered by OFAC and (b) any sanctions measures imposed by the  United Nations Security Council, European Union or the United Kingdom.

 

“SEC Off-Balance Sheet Rules” means the Disclosure in Management’s Discussion and Analysis about Off-Balance Sheet Arrangements, Securities Act Release No. 33-8182, 68 Fed. Reg. 5982 (Feb. 5, 2003) (codified at 17 CFR pts. 228, 229 and 249).

 

“Section” means a numbered section of this Agreement, unless another document is specifically referenced.

 

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“Secured Indebtedness” means any Indebtedness of the Borrower or any other member of the Consolidated Group which is secured by a Lien on a Project, any ownership interests in any Person or any other assets which had, in the aggregate, a value in excess of the amount of such Indebtedness at the time such Indebtedness was incurred.

 

“Single Employer Plan” means a Plan maintained by the Borrower or any member of the Controlled Group for employees of the Borrower or any member of the Controlled Group.

 

“S&P” means S&P Global Ratings, a business unit of Standard & Poor’s Financial Services LLC, and its successors.

 

“Subsidiary” of a Person means (i) any corporation more than 50% of the outstanding securities having ordinary voting power of which shall at the time be owned or controlled, directly or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, or (ii) any partnership, association, joint venture or similar business organization more than 50% of the ownership interests having ordinary voting power of which shall at the time be owned or controlled, directly or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries; provided, however, that, with respect to the Borrower, “Subsidiary” shall include all Persons which are required to be consolidated with the Borrower in accordance with GAAP. Unless otherwise expressly provided, all references herein to a “Subsidiary” shall mean a Subsidiary of the Borrower.

 

“Subsidiary Guarantor” means, as of any date, each Subsidiary of the Borrower which is then a party to the Subsidiary Guaranty pursuant to Section 6.21.

 

“Subsidiary Guaranty” means the guaranty to be executed and delivered by those Subsidiaries of the Borrower which are required to be Subsidiary Guarantors as of the Agreement Effective Date, substantially in the form of Exhibit D attached to this Agreement, as the same may be amended, supplemented or otherwise modified from time to time pursuant to Section 6.21, including any joinders executed by additional Subsidiaries required to become Subsidiary Guarantors from time to time hereunder.

 

“Substantial Portion” means, with respect to any Property of the Borrower or its Subsidiaries, Property which represents more than 15% of then-current Gross Asset Value.

 

“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and

 

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(b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

 

“Swap Obligation” means, with respect to any Subsidiary Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within  the meaning of section 1a(47) of the Commodity Exchange Act.

 

“Swingline Advances” means, as of any date, collectively, all Swingline Loans then outstanding under this Facility.

 

“Swingline Commitment” means the obligation of the Swingline Lender to make Swingline Loans not exceeding in the aggregate at any time $25,000,000.

 

“Swingline Lender” shall mean KeyBank, in its capacity as a Lender.

 

“Swingline Loan” means a loan made by the Swingline Lender pursuant to Section 2.16

hereof.

 

“Taxes” means any and all present or future taxes, duties, levies, imposts, deductions, charges or withholdings, and any and all liabilities with respect to the foregoing, but excluding Excluded Taxes and Other Taxes.

 

“Term Loan A Commitment” means, as to each Term Loan A Lender, the amount equal to such Term Loan A Lender’s Term Loan A Commitment Percentage of the aggregate  principal amount of the Term Loan A Loans from time to time outstanding and the obligation of such Lender to make Term Loan A Loans on the terms and conditions set forth herein, as such amount may be modified from time to time pursuant to the terms hereof.

 

“Term Loan A Commitment Percentage” means, with respect to each Term Loan A Lender, the percentage set forth on Schedule 1.1 hereto as such Term Loan A Lender’s percentage of the aggregate Term Loan A Commitments, as the same may be changed from time to time in accordance with the terms of this Agreement.

 

“Term Loan A Facility” means the facility hereunder pursuant to which the Term Loan A Lenders hereunder will make Term Loan A Loans to Borrower as more particularly described in Article II in the maximum principal amount of $150,000,000.00 (subject to possible decrease as provided in Section 2.1(b) and possible increase as provided in Section 2.23).

 

“Term Loan A Lenders” means, collectively, the Lenders which have a Term Loan A Commitment, the initial Term Loan A Lenders being identified on Schedule 1.1 hereto.

 

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“Term Loan A Loan” means a Loan to Borrower made by a Term Loan A Lender as part of an Advance under the Term Loan A Facility.

 

“Term Loan A Maturity Date” means August 1, 2023. “Term Loan A Unused Fee” is defined in Section 2.1(b).

“Term Loan B Commitment” means, as to each Term Loan B Lender, the amount equal to such Term Loan B Lender’s Term Loan B Commitment Percentage of the aggregate  principal amount of the Term Loan B Loans from time to time outstanding and the obligation of such Lender to make Term Loan B Loans on the terms and conditions set forth herein, as such amount may be modified from time to time pursuant to the terms hereof.

“Term Loan B Commitment Amendment” has the meaning set forth in Section 2.23(b). “Term Loan B Commitment Percentage” means, with respect to each Term Loan B

Lender, the percentage (which shall be set forth on Schedule 1.1 hereto after the establishment

of any Term Loan B Commitments) as such Term Loan B Lender’s percentage of the  aggregate Term Loan B Loans to the Borrower, as the same may be changed from time to time in accordance with the terms of this Agreement.

 

“Term Loan B Facility” means the facility hereunder pursuant to which the Term Loan B Lenders hereunder will make Term Loan B Loans to Borrower as more particularly described in Article II if and when established pursuant to Section 2.23(b) and subject to possible increase thereafter as provided in Section 2.23(b). As of the Agreement Effective Date Borrower expressly acknowledges and agrees that there are no Term Loan B Commitments and that no Lender is committed to fund any Term Loan B Loan to Borrower.

 

“Term Loan B Lenders” means, collectively, the Lenders which have a Term Loan B Commitment.

 

“Term Loan B Loan” means a Loan to the Borrower made by a Term Loan B Lender as part of an Advance under the Term Loan B Facility.

 

“Term Loan B Maturity Date” means (x) the maturity date mutually selected by Borrower and the Term Loan B Lenders pursuant to Section 2.23, and consented to by the Administrative Agent (such consent not to be unreasonably withheld conditioned or delayed) or (y) such earlier date on which the Term Loan B Loans shall become due and payable pursuant to the terms hereof; provided, however, in no event will the Term Loan B Maturity Date referenced in clause

(x) occur earlier than either the Term Loan A Maturity Date or the Revolving Credit Termination Date.

 

“Transferee” is defined in Section 12.4.

 

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“Type” means, with respect to any Advance, its nature as (i) an Advance under the Revolving Credit Facility, the Term Loan A Facility or the Term Loan B Facility and (ii) either a Floating Rate Advance or LIBOR Rate Advance.

 

UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person subject to IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.

 

“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

 

Undrawn Term Loan A Commitment” is defined in Section 2.1(b).

 

“Unencumbered Pool” means the Unencumbered Properties.

 

“Unencumbered Pool Value” means, as of any date of determination, (a) the aggregate Adjusted NOI attributable to Unencumbered Properties included in the Unencumbered Pool as of such determination date and also owned for the entirety of the most recent four (4) consecutive fiscal quarters for which financial results of Borrower have been reported (provided that the contribution to Adjusted NOI on account of any Unencumbered Property shall not in  any event be a negative number) divided by the Capitalization Rate, plus (b) the aggregate acquisition cost of all Unencumbered Properties included in the Unencumbered Pool as of such determination date but not so owned for such period of four (4) consecutive entire fiscal quarters. For purposes of this definition, to the extent that the aggregate amount included in Unencumbered Pool Value on account of any of the three (3) following categories  would exceed twenty percent (20%) of Unencumbered Pool Value in any such case, the amount in excess of twenty percent (20%) of Unencumbered Pool Value attributable to such category  shall be disregarded in the calculation of Unencumbered Pool Value: a) a single Project; b) the aggregate amount of Unencumbered Pool Value attributable to leases any single tenant or group of tenants which are Affiliates of each other; or c) Projects subject to a ground lease.

 

“Unencumbered Property” or “Unencumbered Properties” means any Eligible Unencumbered Property, provided that (i) such Eligible Unencumbered Property has been approved by the Administrative Agent, and the Required Lenders, if necessary, for inclusion in the Unencumbered Pool as described in Section 2.24 below and (ii) the owner of such Property has become a Subsidiary Guarantor (if not already a Subsidiary Guarantor) and the Administrative Agent has received a copy of the Subsidiary Guaranty, or a joinder therein in the form attached as Exhibit A thereto, executed by such owner.

 

“Unencumbered Property Release Transaction” is defined in Section 2.24(c).

 

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“Unimproved Land” means as of any date, land on which no grading or construction of improvements (other than improvements that are not material and are temporary in nature) or infrastructure has commenced and for which no such work is scheduled to commence in the following three (3) months.

 

“Unmatured Default” means an event which but for the lapse of time or the giving of notice, or both, would constitute a Default.

 

“Unrestricted Cash, Cash Equivalents and Marketable Securities” means, in the aggregate, all cash, Cash Equivalents and Marketable Securities which are not pledged or otherwise restricted for the benefit of any creditor and which are owned by the Borrower or another member of the Consolidated Group, to be valued for purposes of this Agreement at 100% of its then-current book value, as determined under GAAP.

 

“Unsecured Debt Service” means, as of any date of determination, implied annual debt service, including all interest and all scheduled principal amortization payments, accrued, whether or not payable or paid, with respect to that portion of Consolidated Total Indebtedness attributable to Unsecured Indebtedness utilizing the higher of (a) the actual interest rate or (b) 5.50%.

 

“Unsecured Debt Service Coverage Ratio” means, as of any date, (i) Adjusted NOI from Unencumbered Properties divided by (ii) Unsecured Debt Service for such period.

 

“Unsecured Indebtedness” means, with respect to any Person, all Indebtedness of such Person for borrowed money that does not constitute Secured Indebtedness or Guarantee Obligations. Notwithstanding the foregoing, Unsecured Indebtedness shall include Recourse Indebtedness that is secured solely by ownership interests in another Person that owns a Project which is encumbered by a mortgage securing Indebtedness.

 

“Unsecured Leverage Ratio” means, as of any date of determination, the percentage obtained by dividing (i) Unsecured Indebtedness of the Consolidated Group outstanding as of such date by (ii) Unencumbered Pool Value.

 

“Unsecured Ratio Violation” is defined in Section 2.3(b). “Unused Revolver Fee” is defined in Section 2.5.

“Unused Revolver Fee Percentage” means, with respect to any day during a calendar quarter, (A) twenty-five one hundredths of one percent (0.25%) per annum if the Outstanding Revolving Credit Amount on such day is less than 50% of the Aggregate Revolving Credit Commitment in effect on such day or (B) fifteen one hundredths of one percent (0.15%) per annum if the Outstanding Revolving Credit Amount on such day is equal to or greater than 50% of the Aggregate Revolving Credit Commitment in effect on such day.

 

“Waiver Period” is defined in Section 2 of the First Amendment.

 

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“Wholly-Owned Subsidiary” of a Person means, as of any date, any Subsidiary of such Person 100% of the equity securities or other equity ownership interests of which (other than in the case of a corporation, directors’ qualifying shares, or, in the case of any entity qualifying or desiring to qualify as a real estate investment trust, so-called “accommodation” shareholders) are at such time directly or indirectly owned by such Person or one or more Wholly-Owned Subsidiaries of such Person, or by such Person and one or more Wholly-Owned Subsidiaries of such Person.

 

“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

 

“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.

 

The foregoing definitions shall be equally applicable to both the singular and plural  forms of the defined terms.

 

ARTICLE II. THE CREDIT

 

2.1.

Loans.

 

 

(a)

Revolving Credit Loans.Subject  to  the  terms  and  conditions  of this

Agreement, Lenders severally agree to make Advances of the Revolving Credit Facility through the Administrative Agent to Borrower from time to time prior to the Revolving Credit Termination Date, and to support the issuance of Facility Letters of Credit under Article IIA of this Agreement, provided that the making of any such Advance or the issuance of such Facility Letter of Credit will not: (i) cause the then-current Outstanding Revolving Credit Amount to exceed the then-current Aggregate Revolving Credit Commitment; or (ii) cause the then-current Outstanding Facility Amount to exceed the then-current Aggregate Commitment; or (iii) cause the then-current outstanding Swingline Advances to exceed the Swingline Commitment; or (iv) cause the then outstanding Facility Letters of Credit Obligations to exceed the Facility Letter of Credit Sublimit. Such Advances of the Revolving Credit Facility may be Swingline Advances,

 

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ratable Floating Rate Advances or ratable LIBOR Rate Advances. Each Lender shall fund its applicable Revolving Credit Percentage of each such Advance (other than a Swingline Advance) and no Lender will be required to fund any amounts which, when aggregated with such Lender’s Revolving Credit Percentage of all other Advances of the Revolving Credit Loans then outstanding and of all Facility Letter of Credit Obligations, would exceed such Lender’s then-current Revolving Credit Commitment. The Revolving Credit Loans shall be made by the Revolving Credit Lenders simultaneously and proportionately to their then respective Revolving Credit Percentages, it being understood that no Lender shall be responsible for any failure by any other Lender to perform its obligation to make a Revolving Credit Loan hereunder nor shall the Loans of any Lender be increased or decreased as a result of any such failure. Subject to the provisions of this Agreement, Borrower may request Advances under the Revolving Credit Facility hereunder from time to time, repay such Advances and reborrow such Advances at any time prior to the Revolving Credit Termination Date.

 

 

(b)

Term Loans.

 

 

(i)

Subject to the terms and conditions set forth in this Agreement,

each of the Term Loan A Lenders severally agrees to make Term Loan A Loans through the Administrative Agent to the Borrower on the Agreement Effective Date up to the amount of such Term Loan A Lender’s Term Loan A  Commitment, which Term Loan A Loans shall be evidenced by Notes. The initial Advance of the Term Loan A Facility shall be $50,000,000 and the remaining Term Loan A Commitments of $100,000,000 may be drawn in increments of

$10,000,000, in up to three draws (in addition to the initial Advance) by Borrower’s (x) delivery of Borrowing Notice to Administrative Agent and (y) satisfaction of each of the conditions to an Advance set forth in Article IV. Any amount of the Term Loan A Commitments that remains undrawn during the period commencing on October 31, 2018 91 days, and ending on February 1, 2019 (the “Undrawn Term Loan A Commitments”) shall be subject to an unused fee payable in arrears to the Administrative Agent for the account of each Term Loan A Lender on the last day of such period, computed on a daily basis by multiplying (i) twenty (20) basis points (0.20%) per annum, expressed as a per diem rate, times (ii) the undrawn portion of the Term Loan A Commitments on such day (the “Term Loan A Unused Fee”). Borrower shall pay the Term Loan A Unused Fee to Administrative Agent on the fifth Business Day after February 1, 2019. Any portion of the Undrawn Term Loan A Commitments that remains undrawn as of February 1, 2019, shall thereafter be unavailable for Borrower to draw, and (i) the Term Loan A Commitments shall be reduced accordingly, pro rata among the Term Loan A Lenders, and (ii) the Term Loan A Unused Fee shall no longer accrue on the Undrawn Term Loan A Commitments.  Following  its receipt of any such Term Loan A Unused Fee, Administrative Agent shall promptly pay to each Term Loan A Lender an amount equal to such Term Loan  A Lender’s Term Loan A Commitment Percentage of the daily amount of such

 

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Term Loan A Unused Fee based on such Term Loan A Lender’s Term Loan A Commitment on such day. Any additional Advances of Term Loan A Loans  made as a result of any increase in the Term Loan A Commitments pursuant to Section 2.23 shall be made on the applicable Commitment Increase Date and each Lender which elects to increase its or acquire a Term Loan A Commitment pursuant to Section 2.23 severally and not jointly agrees to make a Term Loan A Loan to the Borrower in an amount equal to (a) with respect to any existing Term Loan A Lender, the amount by which such Term Loan A Lender’s Term Loan A Commitment increases on the applicable Commitment Increase Date and (b) with respect to any new Term Loan A Lender, the amount of such new Lender’s Term Loan A Commitment. The Borrower irrevocably authorizes Administrative Agent to make or cause to be made, at or about the time of the Borrowing Date of any Term Loan A Loan or the time of receipt of any payment of principal thereof, an appropriate notation on Administrative Agent’s Record reflecting the making of such Term Loan A Loan or (as the case may be) the receipt of such payment. The outstanding amount of the Term Loan A Loans set forth on Administrative Agent’s Record shall be, absent manifest error, prima facie evidence of the principal amount thereof owing and unpaid to each Term Loan A Lender, but the failure to record, or any error in so recording, any such amount on Administrative Agent’s Record shall not limit or otherwise affect the obligations of the Borrower hereunder or under any Note to make payments of principal of or interest on any Note when due.

 

 

(ii)

Any Advances of Term Loan B Loans made as a result of the

establishment of, or any increase in, the Term Loan B Commitments pursuant to Section 2.23 shall be made on the applicable Commitment Increase Date and each Lender which elects to increase its or acquire a Term Loan B Commitment pursuant to Section 2.23 severally and not jointly agrees to make an Advance of a Term Loan B Loan through Administrative Agent to the Borrower in an amount equal to (a) with respect to any existing Term Loan B Lender, the amount by which such Term Loan B Lender’s Term Loan B Commitment increases on the applicable Commitment Increase Date and (b) with respect to any new Term Loan B Lender, the amount of such new Lender’s Term Loan B Commitment. The Borrower irrevocably authorizes Administrative Agent to make or cause to  be made, at or about the time of the Borrowing Date of any Term Loan B Loan or the time of receipt of any payment of principal thereof, an appropriate notation on Administrative Agent’s Record reflecting the making of such Term Loan B Loan or (as the case may be) the receipt of such payment.  The outstanding amount  of the Term Loan B Loans set forth on Administrative Agent’s Record shall be, absent manifest error, prima facie evidence of the principal amount  thereof owing and unpaid to each Term Loan B Lender, but the failure to record, or any error in so recording, any such amount on Administrative Agent’s Record shall not limit or otherwise affect the obligations of the Borrower hereunder or under any Note to make payments of principal of or interest on any Note when due.

 

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2.2.

Ratable and Non Ratable Advances. Each Advance under a Facility hereunder

shall consist of Loans made from the several Lenders under such Facility ratably based on  each Lender’s applicable Percentage of such Facility, except for Swingline Loans which shall be made by the Swingline Lender in accordance with Section 2.16. The ratable Advances may be Floating Rate Advances, LIBOR Rate Advances or a combination thereof, selected by the Borrower in accordance with Sections 2.8 and 2.9.

 

 

2.3.

Periodic Principal Payments.

 

 

(a)

Optional Prepayments.The  Borrower   may,   upon  at   least   one (1)

Business Day’s notice to the Administrative Agent (except in the case of Swingline Advances in which case advance notice is not required), which such notice to be provided by 1:00 p.m. eastern time on such prior Business Day, prepay the Advances, which notice shall specify the date and amount of prepayment and whether the prepayment is of Revolving Credit Loans, Term Loan A Loans or Term Loan B Loans, and whether the prepayment is of LIBOR Rate Advances, Floating Rate Advances, Swingline Advances or a combination thereof, and if a combination thereof, the amount allocable to each; provided, however, that (i) any partial prepayment under this Subsection shall be in an amount not less than $1,000,000 or a whole multiple of

$100,000 in excess thereof and; (ii) any LIBOR Rate Advance prepaid on any day other than the last day of the applicable Interest Period must be accompanied by any amounts payable pursuant to Section 3.4. Upon receipt of any such notice the Administrative Agent shall promptly notify each Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with any amounts payable pursuant to Section 3.4.

 

 

(b)

Mandatory Prepayments. Mandatory partial principal payments shall be

due from time to time if the Outstanding Facility Amount on any day shall be in excess of the maximum amount permitted under clauses (e) or (f) of Section 6.17, due to any reduction in the Unencumbered Pool Value or in the Adjusted NOI of the Unencumbered Properties, whether by an Unencumbered Property failing to continue to satisfy the requirement for qualification as an Eligible Unencumbered Property or by a reduction in the Unencumbered Pool Value or the Adjusted NOI attributable to any Unencumbered Property, or due to any increase in the amount of Unsecured Indebtedness or of Unsecured Debt Service (each, an “Unsecured Ratio Violation”). Such principal payments shall be in the amount needed to cure such Unsecured Ratio Violation, it being agreed and understood that no Unmatured Default, or Default shall be deemed to have occurred with respect to such Unsecured Ratio Violation (and no event the consummation of which was contingent upon the absence of an Unmatured Default or Default prohibited solely due to the occurrence of an Unsecured Ratio Violation) so long as such principal prepayment is made in accordance with the following sentence. Such mandatory principal payments shall be due and payable (i) in the case of any such reduction arising from reductions in Unencumbered Pool Value or Adjusted NOI as reported in a quarterly financial statement of Borrower and related compliance  certificate, ten (10) Business Days after delivery of such quarterly financial statement

 

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and compliance certificate under Section 6.1 evidencing such reduction or (ii) in all other cases, ten (10) Business Days after Borrower’s receipt of notice from the Administrative Agent of such Unsecured Ratio Violation.

 

 

2.4.

Final Principal Payment.Any outstanding Advances and all other unpaid

Obligations with respect to the Commitments and the Advances not required to be repaid earlier pursuant to the terms hereof shall be paid in full by the Borrower on, with respect to (a) the Revolving Credit Loans, the Revolving Credit Termination Date, (b) the Term Loan A Loans, the Term Loan A Maturity Date and, (c) the Term Loan B Loans, if any Advances under the Term Loan B Facility have been made, the Term Loan B Maturity Date.

 

 

2.5.

Unused Revolver Fee; Facility Fee.

 

(a)Unused Revolver Fee. Until such time as Borrower elects to utilize the Ratings Based Pricing Schedule in accordance with Exhibit G, the Borrower agrees to pay to the Administrative Agent for the account of each Revolving Credit Lender on the last day of (i) the period commencing with the Agreement Effective Date and ending on September 30, 2018 and (ii) each calendar quarter ending thereafter an unused revolver fee (the “Unused Revolver Fee”) equal to an aggregate amount computed on a daily basis by multiplying (x) the Unused Revolver Fee Percentage (as specified in the definition of such term) applicable to such day expressed as a per diem rate, times (y) the excess of the actual Revolving Credit Commitments in effect on such day (without regard to possible increases in the Aggregate Revolving Credit Commitment under Section 2.23 which have not yet been effected) over the Outstanding Revolving Credit Amount on such day. The Unused Revolver  Fee shall be payable quarterly in arrears  on the first Business Day of each calendar quarter (with the first such payment payable on October 1, 2018) and upon any termination of the Revolving Credit Commitments in their entirety or upon Borrower’s election to utilize the Ratings Based Pricing Schedule  in accordance with Exhibit G. Following its receipt of any such Unused Revolver Fee, Administrative Agent, shall promptly pay to each Revolving Credit Lender an amount equal to such Revolving Credit Lender’s Percentage of the daily amount of such Unused Revolver Fee, based on such Revolving Credit Lender’s Commitment on such day.

 

(b)Facility Fee. From and after the date that Borrower obtains an Investment Grade Rating and elects to convert to the Ratings Based Pricing Schedule in accordance with Exhibit G (the “Ratings-Based Pricing Election Date”), a facility fee (the “Facility Fee”) shall accrue and be payable by Borrower to the Administrative Agent for the account of each Revolving Credit Lender on the last day of (i) the period commencing with the Ratings-Based Pricing Election Date and ending on the last day of the calendar quarter in which the Ratings-Based Pricing Election Date occurs and (ii) each full calendar quarter ending thereafter, and shall be computed on a daily basis by multiplying (x) the Facility Fee Percentage applicable to such day (as set forth on the Ratings Based Pricing Schedule), expressed as a per diem rate, times the Aggregate Revolving Credit Commitment in effect on such day. The Facility Fee shall be payable quarterly in arrears on the first Business Day of each calendar quarter (for the period

 

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ending on the last day of the immediately prior calendar quarter) and upon any termination of the Aggregate Revolving Credit Commitment in its entirety. Following its receipt of any such Facility Fee, Administrative Agent shall promptly pay to each Revolving Credit Lender an amount equal to such Revolving Credit Lender’s Percentage of the daily amount of such Facility Fee, based on such Revolving Credit Lender’s Commitment on such day. The Facility Fee shall be computed on a 360 day year, and actual days elapsed.

 

 

2.6.

Other Fees. The Borrower agrees to pay all fees payable to the Administrative

Agent and the Arrangers pursuant to the Borrower’s letter agreement with the Administrative Agent and the Arrangers dated as of June 19, 2018 (the “Fee Letter”).

 

 

2.7.

Minimum  Amount  of  Each Revolving  Credit Facility Advance.Each Advance

under the Revolving Credit Facility shall be in the minimum amount of $100,000; provided, however, that, subject to Section 2.1, any Floating Rate Advance of the Revolving Credit  Facility may be in the amount of the unused Aggregate Revolving Credit Commitment.

 

 

2.8.

Method of Selecting Types and Interest Periods for New Advances.The

Borrower shall select the Type of Advance and, in the case of each LIBOR Rate Advance, the Interest Period applicable to each Advance from time to time. The Borrower shall give the Administrative Agent irrevocable notice (a “Borrowing Notice”) in the form attached as Exhibit F hereto (i) not later than 1:00 p.m. Cleveland time on the Business Day immediately preceding the Borrowing Date of each Floating Rate Advance, (ii) not later than noon Cleveland time, at least three (3) Business Days before the Borrowing Date for each LIBOR Rate Advance and (iii) not later than noon Cleveland time on the same Business Day as the Borrowing Date for each Swingline Advance of:

 

 

(i) Advance,

the Borrowing Date, which shall be a Business Day, of such

 

 

 

(ii)

the aggregate amount of such Advance,

 

 

(iii)

the Type of Advance selected (and in the absence of any

selection it shall be assumed that the Borrower has selected a LIBOR Rate Advance), and

 

 

(iv)

in the case of each LIBOR Rate Advance, the Interest Period

applicable thereto (and in the absence of any selection it shall be assumed that the Borrower has selected an Interest Period of one month).

 

Each Lender shall make available its Loan or Loans, in funds immediately available in Cleveland to the Administrative Agent at its address specified pursuant to Article XIII on each Borrowing Date not later than (i) 11:00 a.m. (Cleveland time), in the case of Floating Rate Advances which have been requested by a Borrowing Notice given to the Administrative Agent not later than 1:00 p.m. (Cleveland time) on the Business Day immediately preceding such

 

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Borrowing Date, (ii) 2:00 p.m. (Cleveland time), in the case of Swingline Advances or (iii) noon (Cleveland time) in the case of all other Advances. The Administrative Agent will make the  funds so received from the Lenders available to the Borrower at the account specified by the Borrower in the Borrowing Notice.

 

No Interest Period may end after the Facility Termination Date for such Loan, and, unless the Lenders otherwise agree in writing, in no event may there be more than six (6) different Interest Periods for LIBOR Rate Advances outstanding at any one time.

 

 

2.9.

Conversion and Continuation of Outstanding Advances. Floating Rate Advances

shall continue as Floating Rate Advances unless and until such Floating Rate Advances are converted into LIBOR Rate Advances. Each LIBOR Rate Advance shall continue as a LIBOR Rate Advance until the end of the then applicable Interest Period therefor, at which time such LIBOR Rate Advance shall be automatically converted as a LIBOR Rate Advance, but with an Interest Period of one month unless the Borrower shall have given the Administrative Agent an irrevocable notice (a “Conversion/Continuation Notice”) requesting that, at the end of such Interest Period, such LIBOR Rate Advance either continue as a LIBOR Rate Advance for the same or another Interest Period or be converted to an Advance of another Type. Notwithstanding the provision for automatic conversion in the foregoing sentence, if the  effective date of any such automatic conversion is less than one month prior to the then-current Facility Termination Date for such Loan, such LIBOR Rate Advance shall be automatically converted into a Floating Rate Advance. Subject to the terms of Section 2.7, the Borrower may elect from time to time to convert all or any part of an Advance of any Type into any other Type or Types of Advances; provided that, if any conversion of any LIBOR Rate Advance shall be made on any day other than the last day of the Interest Period applicable thereto, the Borrower shall be obligated to pay the amounts, if any, payable pursuant to Section 3.4. The Borrower shall give the Administrative Agent a Conversion/Continuation Notice regarding  each conversion of an Advance to a LIBOR Rate Advance or continuation of a LIBOR Rate Advance not later than 11:00 a.m. (Cleveland time), at least three (3) Business Days, in the case of a conversion into or continuation of a LIBOR Rate Advance, prior to the date of the requested conversion or continuation, specifying:

 

 

(i)

the requested date which shall be a Business Day, of such

conversion or continuation;

 

 

(ii)

the aggregate amount and Type of the Advance which is to be

converted or continued; and

 

 

(iii)

the amount and Type(s) of Advance(s) into which such Advance is

to be converted or continued and, in the case of a conversion into or continuation of a LIBOR Rate Advance, the duration of the Interest Period applicable thereto.

 

 

2.10.

Changes in Interest Rate, Etc. Each Floating Rate Advance shall bear interest

on the outstanding principal amount thereof, for each day from and including the date such Advance is made or is converted from a LIBOR Rate Advance into a Floating Rate Advance

 

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pursuant to Section 2.9 to but excluding the date it becomes due or is converted into a LIBOR Rate Advance pursuant to Section 2.9 hereof, at a rate per annum equal to the Floating Rate  for such day. Changes in the rate of interest on that portion of any Advance maintained as a Floating Rate Advance will take effect simultaneously with each change in the Alternate Base Rate. Each LIBOR Rate Advance shall bear interest from and including the first day of the Interest Period applicable thereto to (but not including) the last day of such Interest Period at  the interest rate determined as applicable to such LIBOR Rate Advance.

 

 

2.11.

Rates   Applicable After Default.Notwithstanding   anything   to   the contrary

contained in Section 2.8 or 2.9, during the continuance of a Default or Unmatured Default the Required Lenders may, at their option, by notice to the Borrower (which notice may be revoked at the option of the Required Lenders notwithstanding any provision of Section 8.2 requiring unanimous consent of the Lenders to changes in interest rates), declare that no Advance may be made as, converted into or continued as a LIBOR Rate Advance. During the continuance of a Default the Required Lenders may, at their option, by notice to the Borrower (which notice may be revoked at the option of the Required Lenders notwithstanding any provision of Section

8.2 requiring unanimous consent of the Lenders to changes in interest rates), declare that the Default Rate shall apply, provided, however, that the Default Rate shall become applicable automatically if a Default occurs under Section 7.1 or 7.2, unless waived by the Required Lenders.

 

 

2.12.

Method of Payment. All payments of the Obligations hereunder shall be made,

without setoff, deduction, or counterclaim, in immediately available funds to the Administrative Agent at the Administrative Agent’s address specified pursuant to Article XIII, or at any other Lending Installation of the Administrative Agent located in the continental United States specified in writing at least three (3) Business Days in advance by the Administrative Agent to the Borrower, by noon (Cleveland time) on the date when due and shall be applied ratably by the Administrative Agent among the Lenders. As provided elsewhere herein, all Lenders’ interests in the Advances and the Loan Documents shall be ratable undivided interests and none of such Lenders’ interests shall have priority over the others. Each payment delivered to the Administrative Agent for the account of any Lender or amount to be applied or paid by the Administrative Agent to any Lender shall be paid promptly (on the same day as received by the Administrative Agent if received prior to noon (Cleveland time) on such day and otherwise on the next Business Day) by the Administrative Agent to such Lender in the same type of funds that the Administrative Agent received at its address specified pursuant to Article XIII or at any Lending Installation specified in a notice received by the Administrative Agent from  such Lender. Payments received by the Administrative Agent but not timely funded to the Lenders shall bear interest payable by the Administrative Agent at the Federal Funds Effective Rate  from the date due until the date paid. None of the funds or assets of  the Borrower that are  used to pay any amount due pursuant to this Agreement shall constitute funds obtained from transactions with or relating to Designated Persons or countries which are the subject of sanctions under any Sanctions Laws and Regulations. Notwithstanding the foregoing, amounts received from any Loan Party that is not a Qualified ECP Guarantor shall not be applied to Obligations that are Excluded Swap Obligations.

 

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2.13.

Notes; Telephonic Notices.Each Lender is hereby authorized to record the

principal amount of each of its Loans and each repayment on the schedule attached to each of its Notes, provided, however, that the failure to so record shall not affect the Borrower’s obligations under such Note. The Borrower hereby authorizes the Lenders and the Administrative Agent to extend, convert or continue Advances, effect selections of Types of Advances and to transfer funds based on written notices made by any Authorized Officer and Borrower agrees to deliver promptly to the Administrative Agent such written notice. The Administrative Agent will at the request of the Borrower, from time to time, but not more often than monthly, provide notice of the amount of the outstanding Aggregate Commitment, the  Type of Advance, and the applicable interest rate, if for a LIBOR Rate Advance. Upon a Lender’s furnishing to Borrower an affidavit and indemnity in form and substance reasonably acceptable to the Borrower, if a Note is mutilated, destroyed, lost or stolen, Borrower shall deliver to such Lender, in substitution therefor, a new note containing the same terms and conditions as such Note being replaced.

 

 

2.14.

Interest  Payment  Dates;  Interest  and Fee Basis.Interest accrued on each

Advance shall be payable in arrears on each Payment Date, at maturity, whether by acceleration or otherwise, and upon any termination of the Aggregate Commitment in its entirety. All computations of interest on the Floating Rate Advances shall be based on a three hundred sixty-five (365) or, in the event of a leap year, three hundred sixty-six (366)-day year, and paid for the actual number of days elapsed. Interest on LIBOR Rate Advances, Term Loan A Unused Fees, Unused Revolver Fees, Facility Letter of Credit Fees and all other fees shall be calculated for actual days elapsed on the basis of a 360-day year. Interest shall be payable for the day an Advance is made but not for the day of any payment on the amount paid if payment is received prior to 3:00 PM (Cleveland time) at the place of payment. If any payment of principal of or interest on an Advance shall become due on a day which is not a Business Day, such payment shall be made on the next succeeding Business Day and, in the case of a principal payment, such extension of time shall be included in computing interest in connection with such payment.

 

 

2.15.

Notification of Advances, Interest Rates and Prepayments. The Administrative

Agent will notify each Lender of the contents of each Borrowing Notice, Conversion/Continuation Notice, and repayment notice received by it hereunder not later than the close of business on the Business Day such notice is received by the Administrative Agent. The Administrative Agent will notify each Lender of the interest rate applicable to each LIBOR Rate Advance promptly upon determination of such interest rate and will give each Lender prompt notice of each change in the Alternate Base Rate.

 

 

2.16.

Swingline Advances. In addition to the other options available to the Borrower

hereunder, the Swingline Commitment shall be available for Swingline Advances subject to the following terms and conditions. Swingline Advances shall be made available for same day borrowings provided that notice is given in accordance with Section 2.8 hereof. All Swingline Advances shall bear interest at the One Day LIBOR Rate. No Swingline Advance may be made to repay a Swingline Advance, but Borrower may repay Swingline Advances from subsequent pro rata Advances hereunder. Each Lender irrevocably agrees to purchase its Revolving Credit

 

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Percentage of any Swingline Advance made by the Swingline Lender regardless of whether the conditions for disbursement are satisfied at the time of such purchase, including the existence  of a Default hereunder provided that Swingline Lender did not have actual knowledge of such Default at the time the Swingline Advance was made and provided further that no Lender shall be required to have total outstanding Revolving Credit Loans plus its Revolving Credit Percentage of Facility Letters of Credit exceed its Revolving Credit Commitment. If by noon on the fourth (4th) Business Day after such a Swingline Advance was made, such Swingline Advance has not been repaid or covered by a Borrowing Notice for an Advance to repay such Swingline Advance, the Swingline Lender will notify the Lenders of their obligations to purchase their respective Revolving Credit Percentages of such Swingline Advance. Such purchase shall take place on the same Business Day as the date of the request by Swingline Lender so long  as such request is made before 1:00 p.m. (Cleveland time) and otherwise on the first Business Day following the date of such request. All requests for purchase shall be in writing. From and after the date it is so purchased, each such Swingline Advance shall, to the extent purchased,

(i) be treated as a Revolving Credit Loan made by the purchasing Revolving Credit Lenders and not by the selling Lender for all purposes under this Agreement and the payment of the purchase price by a Lender shall be deemed to be the making of a Revolving Credit Loan by such Lender and shall constitute outstanding principal under such Lender’s Note for Revolving Credit Loans, and (ii) shall no longer be considered a Swingline Advance except that all interest accruing on or attributable to such Swingline Advance for the period prior to the date of such purchase shall be paid when due by the Borrower to the Administrative Agent for the benefit of the Swingline Lender and all such amounts accruing on or attributable to such Loans for the period from and after the date of such purchase shall be paid when due by the Borrower to the Administrative Agent for the benefit of the purchasing Lenders. If prior to purchasing its Revolving Credit Percentage of a Swingline Advance one of the events described in Section 7.7 or Section 7.8 shall have occurred and such event prevents the consummation of the purchase contemplated by the preceding provisions, each Lender will purchase an undivided participating interest in the outstanding Swingline Advance in an amount equal to its Revolving Credit Percentage of such Swingline Advance. From and after the date of each Lender’s purchase of its participating interest in a Swingline Advance, if the Swingline Lender receives any payment on account thereof, the Swingline Lender will distribute to such Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s participating interest was outstanding and funded); provided, however, that in the event that such payment was received by the Swingline Lender and is required to be returned to the Borrower, each Lender will return to the Swingline Lender any portion thereof previously distributed by the Swingline Lender to it. If any Lender fails to so purchase its Revolving Credit Percentage of any Swingline Advance, such Lender shall be deemed to be a Defaulting Lender hereunder.

 

 

2.17.

Lending Installations.Each  Lender   may  book   its   Loans  at  any Lending

Installation selected by such Lender and may change its Lending Installation from time to time; provided that such change does not increase the amounts payable by the Borrower under Article III. All terms of this Agreement shall apply to any such Lending  Installation and the  Notes shall be deemed held by each Lender for the benefit of such Lending Installation. Each

 

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Lender may, by written or telex notice at least three (3) Business Days in advance to the Administrative Agent and the Borrower, designate a Lending Installation through which Loans will be made by it and for whose account Loan payments are to be made.

 

 

2.18.

Non-Receipt of Funds by the Administrative Agent. Unless the Borrower or a

Lender, as the case may be, notifies the Administrative Agent prior to the time at which it is scheduled to make payment to the Administrative Agent of (i) in the case of a Lender, the proceeds of a Loan or (ii) in the case of the Borrower, a payment of principal, interest or fees to the Administrative Agent for the account of the Lenders, that it does not intend to make such payment, the Administrative Agent may assume that such payment has been made. The Administrative Agent may, but shall not be obligated to, make the amount of such payment available to the intended recipient in reliance upon such assumption. If such Lender or the Borrower, as the case may be, has not in fact made such payment to the Administrative Agent, the recipient of such payment shall, on demand by the Administrative Agent, repay to the Administrative Agent the amount so made available together with interest thereon in respect of each day during the period commencing on the date such amount was so made available by  the Administrative Agent until the date the Administrative Agent recovers such amount at a rate per annum equal to (i) in the case of payment by a Lender, the Federal Funds Effective Rate for such day or (ii) in the case of payment by the Borrower, the interest rate applicable to the relevant Loan. If such Lender so repays such amount and interest thereon to the Administrative Agent within one (1) Business Day after such demand, all interest accruing on the Loan not funded by such Lender during such period shall be payable to such Lender when received from the Borrower.

 

 

2.19.

Replacement of Lenders under Certain Circumstances. The Borrower shall be

permitted by written notice to the Administrative Agent to replace any Lender which (a) shall be owed amounts pursuant to Sections 3.1, 3.2 or 3.5, (b) is not capable of receiving payments without any deduction or withholding of United States federal income tax pursuant to Section 3.5, (c) unless reasonable means do not exist for ascertaining LIBOR Base Rate pursuant to Section 2.25, cannot maintain its LIBOR Rate Loans at a suitable Lending Installation pursuant to Section 3.3, or (d) becomes a Defaulting Lender, (such to-be-replaced Lender, the  “Departing Lender”) with a replacement bank or other financial institution which has been obtained by the Borrower (which such replacement shall be documented as an assignment of such Departing Lender’s Loans and Commitments hereunder to the replacement lender, at the purchase price set forth in clause (iii) below); provided that (i) such replacement does not conflict with any applicable legal or regulatory requirements affecting the Lenders, (ii)  no Default and (after notice to the Borrower) no Unmatured Default shall have occurred and be continuing at the time of such replacement, (iii) the Borrower shall repay (or the replacement bank or institution shall purchase, at par) all Loans and other amounts owing to such Departing Lender prior to the date of replacement, (iv) the Borrower shall be liable to such Departing Lender under Section 3.4 if any LIBOR Rate Loan owing to such Departing Lender shall be prepaid (or purchased) other than on the last day of the Interest Period relating thereto, (v) the replacement bank or institution, if not already a Lender or an Approved Bank, and the terms  and conditions of such replacement, shall be reasonably satisfactory to the Administrative

 

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Agent (which approval shall be given or withheld not later than five (5) Business Days after the Borrower’s submission of such name and terms and conditions to the Administrative Agent), (vi) subject to the immediately succeeding paragraph the Departing Lender shall be obligated to make such replacement in accordance with the provisions of Section 12.3 (provided that the Borrower shall be obligated to pay the processing fee referred to therein), (vii) until such time as such replacement shall be consummated, the Borrower shall pay all additional amounts (if any) required pursuant to Section 3.5 and (viii) any such replacement shall not be deemed to be a waiver of any rights which the Borrower, the Administrative Agent, any Issuing Bank, any Swingline Lender, or any other Lender shall have against the Departing Lender.

 

Each Lender agrees that if it is replaced pursuant to this Section 2.19, it shall execute and deliver to the Administrative Agent, an Assignment Agreement to evidence such sale and purchase and shall deliver to the Administrative Agent any Note (if the Departing Lender’s Loans are evidenced by Notes) subject to such Assignment Agreement; provided that  the failure of any Departing Lender to execute an Assignment Agreement or deliver such Notes shall not render such sale and purchase (and the corresponding assignment) invalid and such assignment shall be recorded in the Administrative Agent’s Record and the Notes shall be deemed cancelled. Each Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Lender’s attorney-in-fact, with full authority in the place and stead of such Lender and in the name of such Lender, from time to time in the Administrative Agent’s discretion, with prior written notice to such Lender, to take any action  and to execute any such Assignment Agreement or other instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this Section 2.19. No termination of the Commitment of a Defaulting Lender shall be deemed a waiver or release of any claim the Borrower, the Administrative Agent, any Issuing Bank, the Swingline Lender or any Lender may have against any Defaulting Lender.

 

 

2.20.

Usury. This Agreement and each Note are subject to the express condition that

at no time shall Borrower be obligated or required to pay interest on the principal balance of the Loan at a rate which could subject any Lender to either civil or criminal liability as a result of being in excess of the Maximum Legal Rate. If by the terms of this Agreement or the Loan Documents, Borrower is at any time required or obligated to pay interest on the principal balance due hereunder at a rate in excess of the Maximum Legal Rate, the interest rate or the Default Rate, as the case may be, shall be deemed to be immediately reduced to the Maximum Legal Rate and all previous payments in excess of the Maximum Legal Rate shall be deemed to have been payments in reduction of principal and not on account of the interest due hereunder. All sums paid or agreed to be paid to Lender for the use, forbearance, or detention of the sums due under the Loan, shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full stated term of the Loan until payment in full so that the rate or amount of interest on account of the Loan does not exceed the Maximum Legal Rate of interest from time to time in effect and applicable to the Loan for so long as the Loan is outstanding.

 

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2.21.

Extension of Revolving Credit Termination Date. The Borrower shall have the

right to extend the Revolving Credit Termination Date for a period of one (1) additional year, upon satisfaction of the following conditions precedent:

 

 

(i)

The Borrower shall provide Administrative Agent with written

notice (the “Extension Notice”) of the Borrower’s intent to exercise such extension option not more than one hundred twenty (120) and not less than sixty

(60) days prior to the initial Revolving Credit Termination Date;

 

 

(ii)

As of the date of the Borrower’s delivery of notice of its intent to

exercise such extension option, and as of the effective date of such extension,

 

(A)

no Default or Unmatured Default shall have occurred and be continuing and

(B)the representations and warranties contained in Article V are true and correct in all material respects as of each such date with respect to the Loan Parties in existence on such date, except (i) to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall be true and correct in all material respects on and as of such earlier date or (ii) for changes in factual circumstances which are permitted by this Agreement, and the Borrower shall so certify as to such matters in writing; and

 

 

(iii)

On or before the initial Revolving Credit Termination Date, the

Borrower shall pay to Administrative Agent for the benefit of the Lenders an extension fee (the “Extension Fee”) for the extension so exercised in an amount equal to fifteen one hundredths of one percent (0.15%) of the then-current Revolving Credit Commitment of each Lender.

 

Any such extension shall become effective upon receipt of the Extension Notice and the payment of the Extension Fee.

 

 

2.22.

Termination of Revolving Credit Commitments. Borrower shall have the right,

upon at least three (3) Business Days’ notice, to terminate or cancel, in whole or in part, the unused portion of the Aggregate Revolving Credit Commitment in excess of the Outstanding Revolving Credit Amount, or the unused portion of the aggregate Term Loan A Commitments or the unused portion of the aggregate Term Loan B Commitments, provided, in each case, that each partial reduction shall be in a minimum amount of $1,000,000 or any whole multiple of

$100,000 in excess thereof. Any partial termination of the Aggregate Revolving Credit Commitment, the aggregate Term Loan A Commitments or the aggregate Term Loan B Commitments shall be applied to reduce each Lender’s Revolving Credit Commitment, Term Loan A Commitment or Term Loan B Commitment, as the case may be, on a pro rata basis. Once terminated or reduced, the Aggregate Revolving Credit Commitment, the aggregate Term Loan A Commitments and/or the aggregate Term Loan B Commitments, as the case may be, may not be reinstated or (except pursuant to Section 2.23) increased thereafter.

 

 

2.23.

Increase in Commitment.

 

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(a)

Provided that no Unmatured Default or Default has occurred and is

continuing, subject to the terms and conditions set forth in this Section 2.23, the Borrower shall have the option at any time and from time to time prior to the date that is at least thirty (30) days prior to the Facility Termination Date to request an increase in the Aggregate Revolving Credit Commitment, the Term Loan A Commitments and/or  the Term Loan B Commitments, each in increments of $10,000,000, by an aggregate amount of increases to the Aggregate Revolving Credit Commitment, the Term A Loan Commitments and Term Loan B Commitments of up to $350,000,000 (the amount of the requested increase to be set forth in the Increase Notice) (which, assuming no previous reduction in the Revolving Credit Commitments, the Term Loan A Commitments or the Term   Loan   B   Commitments,   would   result   in   an   Aggregate   Commitment   of

$700,000,000), written notice to the Administrative Agent (an “Increase Notice”). The execution and delivery of the Increase Notice by the Borrower shall constitute a representation and warranty by the Borrower that all the conditions set forth in this Section 2.23 shall have been satisfied on the date of such Increase Notice. The Commitment Increase may be allocated (1) to the then existing Revolving Credit Commitments, having the same terms as the existing Revolving Credit Commitments (2) to the then existing Term Loan A Commitments having the same terms as the existing Term Loan A Commitments, (3) to the initial Term Loan B Commitment, or once the initial Term Loan B Commitment is provided hereunder, to the then existing Term Loan  B Commitments having the same terms as the existing Term Loan B Commitments, or

(4) any combination thereof reasonably satisfactory to Administrative Agent and satisfactory to the existing or additional Revolving Credit Lenders, Term Loan A Lenders or Term Loan B Lenders, as applicable, providing such additional Revolving Credit Commitments, Term Loan A Commitments or Term Loan B Commitments, as applicable.

 

 

(b)

In the event of the initial increase of the Term Loan B Commitment, (i) the

Borrower, the Administrative Agent and the Lenders providing such initial Term Loan B Commitment shall enter into an amendment to this Agreement as is necessary to evidence such increase of the Term Loan B Commitment (the “Term Loan B Commitment Amendment”), and all Lenders not providing the initial Term Loan B Commitments hereby consent to such limited scope amendment without future consent rights, provided that any such amendment regarding the Term Loan B shall provide that:

(A) the final maturity date of the Term Loan B Commitment shall be no earlier than the Term Loan A Maturity Date, (B) there shall be no scheduled amortization of the loans or reductions of commitments under the Term Loan B Commitment (which shall not restrict any mandatory prepayments required under Section 2.3(b)) and (C) the Term Loan B Loans will rank pari passu in right of payment with the existing Revolving Credit Loans and the existing Term Loan A Loans and the borrower and guarantors of the Term Loan B Commitment shall be the same as the Borrower and Subsidiary Guarantors with respect to the existing Revolving Credit Loans and Term Loan A Loans, (D) the interest rate margin, rate floors, fees, original issue discount and premium applicable to the  Term Loan B shall be determined by the Borrower and the Term Loan B Lenders, (E)

 

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the Term Loan B Loans may participate on a pro rata or less than pro rata (but not greater than pro rata) basis in voluntary or mandatory prepayments with the Revolving Credit Loans and Term Loan A Loans, and (F) the terms of the Term Loan B Commitment shall be substantially identical to the terms set forth herein with respect to Term Loan A (except as set forth in clauses (A) through (E) above), except for any  terms that apply only after the Term Loan A Maturity Date or are also added for the benefit of the Term Loan A Lenders, and (ii) Borrower shall execute and deliver a Note to each Term Loan B Lender with respect to its respective Term Loan B Loan.

 

 

(c)

Upon receipt of any Increase Notice, the Administrative Agent shall

consult with the Arrangers and shall notify the Borrower of the amount of facility fees (if any) to be paid to any Lenders who provide an additional Revolving Credit Commitment, Term Loan A Commitment or Term Loan B Commitment, as applicable, in connection with such increase in the Aggregate Revolving Credit Commitment, Term Loan A Commitment or Term Loan B Commitment, as applicable (which shall be in addition to the fees to be paid to Administrative Agent or the Arrangers pursuant to the Fee Letter). If the Borrower agrees to pay the facility fees so determined, then the Administrative Agent shall send a notice to all Revolving Credit Lenders, Term Loan A Lenders or Term Loan B Lenders, as applicable, (the “Additional Commitment Request Notice”) informing them of the Borrower’s request to increase the Aggregate Revolving Credit  Commitment, Term Loan A Commitment and/or Term Loan B Commitment, as applicable, and of the facility fees to be paid with respect thereto. Each Lender who desires to provide an additional Revolving Credit Commitment, Term Loan A Commitment and/or Term Loan B Commitment, as applicable, upon such terms shall provide Administrative Agent with a written commitment letter specifying the amount of the additional Revolving Credit Commitment, Term Loan A Commitment and/or Term Loan B Commitment, as applicable, 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 the Administrative Agent and the Arrangers shall allocate the Commitment Increase among the Revolving Credit Lenders, Term Loan A Lenders and/or Term Loan B Lenders, as applicable, who provide such commitment letters on such basis as the Administrative Agent and the Arrangers shall determine  after consultation with the Borrower. If the additional Revolving Credit Commitments, Term Loan A Commitments and/or Term Loan B Commitments, as applicable, so provided are not sufficient to provide the full amount of the Commitment Increase requested by the Borrower, then the Administrative Agent, the Arrangers or the  Borrower may, but shall not be obligated to, invite one or more banks or lending institutions (which banks or lending institutions shall be acceptable to Administrative Agent, the Arrangers and the Borrower) to become a Revolving Credit Lender, Term Loan A Lender and/or Term Loan B Lender and provide an additional Revolving Credit Commitment, Term Loan A Commitment and/or Term Loan B Commitment, as applicable. The Administrative Agent shall provide all Revolving Credit Lenders, Term Loan A Lenders and/or Term Loan B Lenders, as applicable, with a notice setting forth the amount, if any, of the additional Revolving Credit Commitment, Term Loan A

 

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Commitment and/or Term Loan B Commitment, to be provided by each Revolving Credit Lender, Term Loan A Lender and/or Term Loan B Lender, as applicable, and the  revised Revolving Credit Percentages, Term Loan A Commitment Percentages and/or Term Loan B Commitment Percentages, as applicable, 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 hereunder to provide an additional Revolving Credit Commitment, Term Loan A Commitment and/or Term Loan B Commitment.

 

 

(d)

On any Commitment Increase Date with respect to the Revolving Credit

Commitment, the outstanding principal balance of the Revolving Credit Loans shall be reallocated among the Revolving Credit Lenders such that after the applicable Commitment Increase Date the outstanding principal amount of Revolving Credit Loans owed to each Lender shall be equal to such Lender’s Revolving Credit Percentage (as in effect after the applicable Commitment Increase Date) of the outstanding principal amount of all Revolving Credit Loans. The participation interests of the Revolving Credit Lenders in Letters of Credit and Swingline Advances shall be similarly adjusted. On any Commitment Increase Date those Revolving Credit Lenders whose Revolving Credit Percentage is increasing shall advance the funds to the Administrative Agent and the funds so advanced shall be distributed among the Revolving Credit Lenders whose Revolving Credit Percentage is decreasing as necessary to accomplish the required reallocation of the outstanding Revolving Credit Loans.

 

 

(e)

Upon the effective date of each increase in the Aggregate Revolving

Credit Commitment, Term Loan A Commitments and/or Term Loan B Commitments pursuant to this Section 2.23, the Administrative Agent may unilaterally revise Schedule

1.1 to reflect the then current Commitments of each Lender and shall provide a copy thereof to each Lender.

 

 

(f)

Notwithstanding anything to the contrary contained herein, the obligation

of the Administrative Agent and the Revolving Credit Lenders to increase the Aggregate Revolving Credit Commitment, the Administrative Agent and the Term Loan A Lenders to increase the Term Loan A Commitments or the Administrative Agent and the Term Loan B Lenders (including any Persons that elect to become Term Loan B Lenders) to increase the Term Loan B Commitments, as applicable, pursuant to this Section 2.23 shall be conditioned upon satisfaction of the following conditions precedent which must be satisfied prior to the effectiveness of any increase of the Aggregate Revolving Credit Commitment, the Term Loan A Commitments or the Term Loan B Commitments, as applicable:

 

 

(i)

Payment of Arrangement Fee. The Borrower shall pay (A) to the

Administrative Agent and the Arrangers those fees described in and contemplated by the Fee Letter with respect to the applicable Commitment Increase, and (B) to the Arrangers such facility fees as the Revolving Credit Lenders, Term Loan A Lenders or Term Loan B Lenders, as applicable, who are

 

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providing an additional Commitment may require to increase the aggregate Revolving Credit Commitment, Term Loan A Commitment or Term Loan B Commitment, which fees shall, when paid, be fully earned and non-refundable under any circumstances. The Arrangers shall pay to the Lenders acquiring the applicable Commitment Increase certain fees pursuant to their separate agreement; 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 Aggregate Revolving Credit Commitment, Term Loan A Commitments or Term Loan B Commitments are increased, there shall exist no Unmatured Default or Default; and

 

 

(iii)

Representations True. The representations and warranties made

by the Borrower and the Guarantors in the Loan Documents or otherwise made by or on behalf of the Borrower or the Guarantors in connection therewith or after the date thereof shall have been true and correct in all material respects when made and shall also be true and correct in all material respects (except to the extent that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on the date of such Increase Notice and on the date the Aggregate Revolving Credit Commitment, Term Loan  A Commitment or Term Loan B Commitment is increased, both immediately before and after the Aggregate Revolving Credit Commitment, Term Loan A Commitment or Term Loan B Commitment is increased, except to the extent of changes resulting from transactions permitted by the Loan Documents, and except that if any representation and warranty is as of a specified date, such representation and warranty shall be true and correct in all material respects as of such date; and

 

 

(iv)

Term Loan B Commitment Amendment. In connection with the

initial increase of the Term Loan B Commitment, the Borrower, the  Administrative Agent and each Term Loan B Lender shall execute and deliver to the Administrative Agent the Term Loan B Commitment Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence or secure the increase of the Term Loan B Commitment including evidence of authority to borrow, certifications and opinions as the Administrative Agent may reasonably require in its sole and absolute discretion. The Administrative Agent shall promptly notify each Lender as to the effectiveness of the Term Loan B Commitment Amendment. The Term Loan B Commitment Amendment, without the consent of any other Lender, shall effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, the Term Loan B Lenders and the Borrower, to implement the terms of Term Loan B Commitment, including any amendments necessary to establish the Term Loan B Commitment, and such other technical amendments as may be

 

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necessary or appropriate in the reasonable opinion of the Administrative Agent, the Term Loan B Lenders and the Borrower in connection with the establishment of such Term Loan B Commitment.

 

 

(v)

Additional Documents.The Borrower and the Guarantors shall

execute and deliver to Administrative Agent and the Lenders such additional customary documents, instruments, evidence of authority to  borrow, certifications and opinions as the Administrative Agent may reasonably require, including, without limitation, an amendment to this Agreement with respect to the pricing and the Term Loan B Maturity Date, a Compliance Certificate, demonstrating compliance with all covenants and, to the extent required by clause (iii) above, representations and warranties set forth in the Loan Documents after giving effect to the increase and the Borrower shall pay all  costs and expenses which are required hereunder to be paid in connection with such increase.

 

 

2.24.

Unencumbered Properties.

 

 

(a)

The Eligible Unencumbered Properties which have been approved by the

Lenders and the Administrative Agent as of the Agreement Effective Date are listed on Exhibit H-1 attached hereto and made a part hereof (the “Initial Unencumbered Properties”). Borrower hereby certifies that, as of the Agreement Effective Date, each of the Projects listed on Exhibit H-2 would meet the criteria to be an Eligible Unencumbered Property except that each has existing Lien(s) due to existing Indebtedness (such properties being the “Lien Properties”). On the date that Borrower delivers to Administrative Agent, which such date shall be within sixty (60) days of the Agreement Effective Date, evidence reasonably satisfactory to Administrative Agent of the repayment of any such existing Indebtedness and the release of any such Lien(s) affecting any of the Lien Properties, so that such Lien Properties thereby meet all  criteria to be Eligible Unencumbered Properties, such Lien Properties shall be deemed to be approved Eligible Unencumbered Properties.

 

 

(b)

Addition of Eligible Unencumbered Properties to Unencumbered Pool.

Not less than ten (10) Business Days prior to the date on which (a) Borrower expects a Wholly-Owned Subsidiary to acquire a Project that will become an Eligible Unencumbered Property or (b) a Project already owned by a Wholly-Owned Subsidiary is to be designated to become an Eligible Unencumbered Property, Borrower shall notify the Administrative Agent thereof in writing. The Administrative Agent shall notify Borrower in writing within ten (10) Business Days after it receives notice thereof if the Administrative Agent has determined that such Project is an Eligible Unencumbered Property. If a proposed Unencumbered Property does not meet all of the requirements needed to qualify as an Eligible Unencumbered Property, the Administrative Agent shall, within five (5) Business Days after making such determination, request special approval for the addition of such proposed Unencumbered Property to the Unencumbered Pool from the Lenders. The Lenders shall respond to such request within ten (10) Business

 

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Days and the failure of any Lender to respond to any such request within such period shall be deemed an approval by such non-responding Lender. Such non-compliant Property shall be added to the Unencumbered Pool only if the Required Lenders shall approve (or are deemed to approve) the addition of such a non-compliant Property to  the Unencumbered Pool. If the Administrative Agent notifies Borrower that any Project has been so approved to become a Unencumbered Property, then, as a condition precedent to such Project actually becoming an Unencumbered Property, Borrower shall satisfy, or shall cause the applicable Subsidiary Guarantor owning such Project to execute and deliver a Joinder Agreement with respect to the Subsidiary Guaranty, if such Subsidiary Guarantor has not already executed a Subsidiary Guaranty, all as described in Section 6.21 below.

 

 

(c)

Sale, Contribution or Financing of an Unencumbered Property. Provided

no Default or Unmatured Default shall have occurred hereunder or under the other Loan Documents and be continuing (or would exist immediately after giving effect to the transactions contemplated by this Section 2.24(c)), Borrower may (i) sell an Unencumbered Property (or Borrower may sell its ownership interest in such Subsidiary Guarantor), (ii) contribute an Unencumbered Property (or Borrower may contribute its ownership interest in such Subsidiary Guarantor) to an existing or newly formed Investment Affiliate (iii) create a Lien securing Indebtedness on an Unencumbered Property or (iv) request that a particular Project no longer constitutes an Unencumbered Property (for purposes of this Section, such a sale or contribution of an Unencumbered Property or the creation of such a Lien or recharacterization of such Project shall be referred to as a “Unencumbered Property Release Transaction”) upon the following terms and conditions:

 

 

(i)

Borrower shall deliver to the Administrative Agent written notice of

the desire to consummate such Unencumbered Property Release Transaction  on or before the date that is ten (10) Business Days prior to the date on which the Unencumbered Property Release Transaction is to be effected;

 

 

(ii)

On or before the date that is five (5) Business Days prior to the

date of the Unencumbered Property Release Transaction is to be effected, Borrower shall submit to the Administrative Agent a certificate, which shall be subject to the Administrative Agent’s review and reasonable approval, on behalf of the Lenders, setting forth the Unsecured Leverage Ratio and Unsecured Debt Service Coverage Ratio on a pro forma basis as of the date of the proposed Unencumbered Property Release Transaction giving effect to: (A) the Unencumbered Property Release Transaction, (B) any contemplated paydown of the Outstanding Facility Amount in connection with such Unencumbered  Property Release Transaction and (C) any other Projects that became or are becoming an Eligible Unencumbered Property prior to the scheduled date of the Unencumbered Property Release Transaction (the “Pro Forma Calculations”);

 

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(iii)

If the Pro Forma Calculations show that Borrower will be out of

compliance with the covenants contained in clauses (e) and (f) of Section 6.17 or with any of the limitations set forth in the definition of Eligible Unencumbered Property or in this Section 2.24, Borrower shall, before the closing of the Unencumbered Property Release Transaction, either add to the Unencumbered Property Pool an additional Eligible Unencumbered Property that causes Borrower to be in compliance with such covenants and conditions or pay down (which, if applicable to the Revolving Credit Loans, shall be made without any corresponding permanent reduction of Revolving Credit Commitments) the Outstanding Facility Amount sufficiently to permit Borrower to be in compliance with those covenants and conditions;

 

 

(iv)

To the extent that any such sale, disposition or financing of all or a

portion of an Unencumbered Property (or of any ownership interest in a Subsidiary Guarantor owning such Unencumbered Property) occurs as permitted by this Section 2.24, Borrower shall make a principal payment (which, if applicable to the Revolving Credit Loans, shall be made without any corresponding permanent reduction of Revolving Credit Commitments) on the Notes as and to the extent required by Section 2.3(b) of this Agreement. Notwithstanding the foregoing, the Administrative Agent shall not be obligated to release any such Subsidiary from the Subsidiary Guaranty if (i) such Subsidiary owns any other Unencumbered Properties that are not being so released from such status or (ii) a Default or Unmatured Default has occurred and is then continuing. In addition, effective as of the date on which Borrower receives an Investment Grade Rating or any date thereafter on which Borrower maintains such an Investment Grade Rating, Borrower may request, upon not less than  five (5) Business Days prior written notice to the Administrative Agent, the release of all Subsidiary Guarantors from the Subsidiary Guaranty which release shall be effected by the Administrative Agent so long as no Default or Unmatured Default   shall   have   occurred and  be  then continuing.Notwithstanding the foregoing, if any such Subsidiary Guarantor shall then continue to have outstanding Recourse Indebtedness or Guarantee Obligations to other creditors (other than to the Borrower or any of its Subsidiary Guarantors), the release of such Subsidiary Guarantor from the Subsidiary Guaranty shall be deferred until such Subsidiary Guarantor has been released from, or is simultaneously released from, such other Recourse Indebtedness or Guarantee Obligations.

 

 

(v)

Upon the occurrence of the Unencumbered Property Release

Transaction, the underlying Project shall no longer be an Unencumbered Property.

 

Notwithstanding anything to the contrary in this Section 2.24(c), no Unencumbered Property shall be released from the Unencumbered Pool without Required Lender approval if such release will cause the Unencumbered Pool to have fewer than ten (10) Unencumbered Properties remaining or if it would reduce the Unencumbered Pool Value below $200,000,000.

 

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2.25.

Inability to Determine Interest RateEffect of Benchmark Transition Event. If prior

to the first day of any Interest Period:

 

(a)the Administrative Agent shall have reasonably determined (which determination shall be conclusive and binding upon the Borrower) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining LIBOR Base Rate for such Interest Period, or(b)the Administrative Agent shall have reasonably determined (which determination shall be conclusive and binding upon the Borrower) that LIBOR Base Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to any Lender of making or maintaining their affected Loans during such Interest Period, the Administrative Agent shall give telecopy or telephonic notice thereof to the Borrower and the relevant Lenders as soon as practicable thereafter. If such notice is given (x) any LIBOR Rate Loans requested to be made on the first day of  such Interest Period shall   be made as Floating  Rate Loans, (y) any Loans that were to have been converted on   the first day of such Interest Period to LIBOR Rate Loans shall be continued as Floating Rate Loans and (z) any outstanding LIBOR Rate Loans shall be converted, on the last day of the then current Interest Period  with  respect  thereto, to Floating  Rate Loans. Until such notice has been withdrawn by the Administrative Agent (which the Administrative Agent shall promptly do when the applicable condition no longer exists), no further LIBOR Rate Loans shall be made or continued as such, nor shall  the Borrower have the right to convert Loans to LIBOR Rate Loans; provided, however, that the failure of the Administrative Agent to withdraw such notice promptly shall not in any manner affect the obligation of the Borrower to repay (with applicable interest) the Loans made to the Borrower by such Lender in accordance with the terms of this Agreement. .

 

(c)  If  at  any time the Borrower  and the Administrative Agent determine in   good faith that (i) the circumstances set forth in clause (a) have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in clause (a) have not arisen but the supervisor for the administrator of the LIBOR Base Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBOR Base Rate shall no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower shall endeavor in good faith to establish an alternate rate of interest to the LIBOR Base Rate that is generally accepted as the then prevailing market convention for determining a rate of interest (including the making of appropriate adjustments to such alternate rate and this Agreement (x) to preserve pricing in effect at the time of selection of such alternate rate and (y) other changes necessary to reflect the available interest periods for such alternate rate) for syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement  to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable; provided that, if such alternate rate of interest as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.

 

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(a)Benchmark Replacement. Notwithstanding anything to the contrary in Section 8.2, such amendment shall become effective without any further action or consent of any other party to this Agreementherein or in any other Loan Document, (i) upon the determination of the Administrative Agent (which shall be conclusive absent manifest error) that a Benchmark Transition Event has occurred or (ii) upon the occurrence of an Early Opt-in Election, as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace LIBOR with a Benchmark Replacement, by a written document executed by the Borrower and the Administrative Agent, subject to the requirements of this Section 2.25. Notwithstanding the requirements of Section 8.2 or anything else to the contrary herein or in any other Loan Document, any such amendment with respect to a Benchmark Transition Event will become effective and binding upon the Administrative Agent, the Borrower and the Lenders at 5:00 p.m. on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all Lenders and the Borrower so long as the Administrative Agent shall not have received, within five Business Days of the date a copy of such amendment is provided to the Lenders pursuant to Section 2.25(b), a written notice from the Required Lenders stating that such Required Lenders object to such amendment. Until an alternate rate of interest shall be determined in accordance with this paragraph (but, in the case of the circumstances described in clause (ii) of the first sentence of this paragraph, only to the extent the LIBOR Base Rate for such Interest Period is not available or published at such time on a current basis), (x) any request for the conversion of any Loan to, or continuation of any Loan as, a LIBOR Rate Loan shall be ineffective and (y) if any borrowing request requests a LIBOR Rate Loan, such LIBOR Rate Loan shall be made as a Floating Rate Loan.has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders, and any such amendment with respect to an Early Opt-in Election will become effective and binding upon the Administrative Agent, the Borrower and the Lenders on the date that Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of LIBOR with a Benchmark Replacement pursuant to this Section 2.25 will occur prior to the applicable Benchmark Transition Start Date.

 

(b)Benchmark Replacement Conforming Changes. In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.

 

(c)Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrower and the Lenders in writing of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date and Benchmark Transition Start Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes and (iv) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or Lenders pursuant to this Section 2.25, including, without limitation, any determination with

 

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respect to a tenor, comparable replacement rate or adjustment, or implementation of any Benchmark Replacement Rate Conforming Changes, or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will  be conclusive and binding on all parties hereto absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section 2.25 and shall not be a basis of any claim of liability of any kind or nature by any party hereto, all such claims being hereby waived individually be each party hereto.

 

(d)Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower  may revoke any request for a LIBOR Rate Advance of, conversion to or continuation of LIBOR Rate Loan to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to Floating Rate Loans. During any Benchmark Unavailability Period, the components of Alternate Base Rate based upon LIBOR will not be used in any determination of Alternate Base Rate.

 

 

(e)

Certain Defined Terms. As used in this Section 2.25:

 

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“ARRC” means Alternative Reference Rate Committee jointly convened by the Federal Reserve Board and the Federal Reserve Bank of New York.

 

“Benchmark Replacement” means the sum of: (a) the alternate benchmark rate (which may include Term SOFR) that has been selected by the Administrative Agent and the Borrower giving due consideration to (i) any selection or recommendation of a replacement rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a rate of interest as a replacement to LIBOR for U.S. dollar-denominated syndicated credit facilities at such time and (b) the Benchmark Replacement Adjustment; provided that, if the Benchmark Replacement as so determined would be less than 25 basis points, the Benchmark Replacement will be deemed to be 25 basis points for the purposes of this Agreement.

 

“Benchmark Replacement Adjustment” means, with respect to any replacement of LIBOR with an Unadjusted Benchmark Replacement for each applicable Interest Period, the spread adjustment or method for calculating or determining such spread adjustment (which  may be a positive or negative value or zero) in each case that has been selected by the Administrative Agent and the Borrower giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of LIBOR with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of LIBOR with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated syndicated credit facilities at such time, including consideration of guidelines published by ARRC.

 

“Benchmark Replacement Conforming Changes” means, with respect to any  Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Alternate Base Rate,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest and other administrative matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by  the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for  the administration of the Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement).

 

“Benchmark Replacement Date” means the earlier to occur of the following events with respect to LIBOR:

 

(1)in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and

 

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(b) the date on which the administrator of LIBOR permanently or indefinitely ceases to provide LIBOR; or

 

(2)in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein.

 

“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to LIBOR:

 

(1)a public statement or publication of information by or on behalf of the administrator of LIBOR announcing that such administrator has ceased or will cease to provide LIBOR, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide LIBOR;

 

(2)a public statement or publication of information by the regulatory supervisor for the administrator of LIBOR, the U.S. Federal Reserve System, an insolvency official with jurisdiction over the administrator for LIBOR, a resolution authority with jurisdiction over the administrator for LIBOR or a court or an entity with similar insolvency or resolution authority over the administrator for LIBOR, which states that the administrator of LIBOR has ceased or will cease to provide LIBOR permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide LIBOR; or

 

(3)a public statement or publication of information by the regulatory supervisor for the administrator of LIBOR or a Relevant Governmental Body announcing that LIBOR is no longer representative.

 

“Benchmark Transition Start Date” means (a) in the case of a Benchmark Transition Event, the earlier of (i) the applicable Benchmark Replacement Date and (ii) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication) and (b) in the case of an Early Opt-in Election, the date specified by the Administrative Agent or the Required Lenders, as applicable, by notice to the Borrower, the Administrative Agent (in the case of such notice by the Required Lenders) and the Lenders.

 

“Benchmark Unavailability Period” means, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to LIBOR and solely to the extent that LIBOR has not been replaced with a Benchmark Replacement, the period (x) beginning at the time that such Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced LIBOR for all purposes hereunder in accordance with this Section 2.25 and (y) ending at the time that a Benchmark Replacement has replaced LIBOR for all purposes hereunder pursuant to the Section titled “Effect of Benchmark Transition Event.”

 

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“Early Opt-in Election” means the occurrence of:

 

(1)a determination by the Administrative Agent that U.S. dollar-denominated syndicated credit facilities being executed at such time, or that include language similar to that contained in this Section 2.25 are being executed or amended, as applicable, to incorporate or adopt a new benchmark interest rate to replace LIBOR, and

 

(2)the election by the Administrative Agent to declare that an Early Opt-in Election has occurred and the provision by the Administrative Agent of written notice of such election to the Borrower and the Lenders.

 

“Federal Reserve Bank of New York’s Website” means the website of the Federal Reserve Bank of New York at http://www.newyorkfed.org, or any successor source.

 

“Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto, including without limitation the Alternative Reference Rates Committee.

 

“SOFR” with respect to any day means the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the administrator of the benchmark, (or a successor administrator) on the Federal Reserve Bank of New York’s Website.

 

“Term SOFR” means the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.

 

“Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the Benchmark Replacement Adjustment.

 

ARTICLE IIA

 

LETTER OF CREDIT SUBFACILITY

 

2A.1Obligation to Issue. Subject to the terms and conditions of this Agreement and

in reliance upon the representations and warranties of the Borrower herein set forth, the Issuing Bank hereby agrees to issue for the account of the Borrower, one or more Facility Letters of Credit in accordance with this Article IIA, from time to time during the period commencing on  the Agreement Effective Date and ending on a date thirty (30) days prior to the then current Revolving Credit Termination Date.

 

2A.2Types and Amounts. The Issuing Bank shall not have any obligation to:

 

 

(i)

issue any Facility Letter of Credit if the aggregate maximum amount then

available for drawing under Letters of Credit issued by such Issuing Bank, after giving effect to the Facility Letter of Credit requested hereunder, shall exceed any limit  imposed by law or regulation upon such Issuing Bank;

 

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(ii)

issue any Facility Letter of Credit if, after giving effect thereto, (1) the

then applicable Outstanding Facility Amount would exceed the then current Aggregate Commitment or (2) the then-applicable Outstanding Revolving Credit Amount would exceed the then-current aggregate Revolving Credit Commitments or (2) the Facility Letter of Credit Obligations would exceed the Facility Letter of Credit Sublimit; or

 

 

(iii)

issue any Facility Letter of Credit having an expiration date, or containing

automatic extension provisions to extend such date, to a date beyond the then-current Revolving Credit Termination Date, provided, further, that a Facility Letter of Credit may, as a result of its express terms or as the result of the effect of an automatic extension provision, have an expiration date of not more than one year beyond the Revolving Credit Termination Date, so long as the Borrower delivers to the Administrative Agent  for the benefit of the Revolving Credit Lenders no later than the then Revolving Credit Termination Date either (1) cash collateral for such Letter of Credit for deposit into the Letter of Credit Collateral Account in an amount equal to the stated amount of such Letter of Credit, (2) a backup Letter of Credit having terms acceptable to the Issuing Bank and issued by a domestic financial institution having a rating assigned by Moody’s or S&P to its senior unsecured debt of AA/Aa2 or better (or otherwise acceptable to the Issuing Bank) or (3) other collateral satisfactory to the Issuing Bank. Upon the  expiration, cancellation or termination of a Facility Letter of Credit for which cash, a backup Letter of Credit or other collateral has been provided pursuant to the preceding clause (1), (2) or (3), the Administrative Agent (or the Issuing Bank, as the case may be) shall promptly return any such backup Letter of Credit to the Borrower or release such collateral if such extension is not exercised or is not exercisable.

 

2A.3Conditions.In addition to being subject to the satisfaction of the conditions

contained in Article IV hereof, the obligation of the Issuing Bank to issue any Facility Letter of Credit is subject to the satisfaction in full of the following conditions:

 

 

(i)

the proposed Facility Letter of Credit shall be reasonably

satisfactory to the Issuing Bank as to form and content;

 

 

(ii)

as of the date of issuance, no order, judgment or decree of any

court, arbitrator or governmental authority shall purport by its terms to enjoin or restrain the Issuing Bank from issuing the requested Facility Letter of Credit and no law, rule or regulation applicable to the Issuing Bank and no request or directive (whether or not having the force of law) from any governmental  authority with jurisdiction over the Issuing Bank shall prohibit or request that the Issuing Bank refrain from the issuance of Letters of Credit generally or the issuance of the requested Facility Letter of Credit in particular; and

 

 

(iii)

there shall not exist any Default.

 

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2A.4Procedure for Issuance of Facility Letters of Credit.

 

 

(a)

Borrower shall give the Issuing Bank and the Administrative Agent at

least three (3) Business Days’ prior written notice of any requested issuance of a Facility Letter of Credit under this Agreement (a “Letter of Credit Request”) and shall immediately provide the Issuing Bank and the Administrative Agent with a Notice signed by an Authorized Officer and containing all information required to be contained in such Notice, which notice shall be irrevocable except as provided in Section 2A.4(b)(i) below, and shall specify:

 

 

1.

the stated amount of the Facility Letter of Credit requested (which stated

amount shall not be less than $50,000);

 

 

2.

the effective date (which day shall be a Business Day) of issuance of

such requested Facility Letter of Credit (the “Issuance Date”);

 

 

3.

the date on which such requested Facility Letter of Credit is to expire

(which day shall be a Business Day), subject to Section 2A.2(iii) above;

 

 

4.

the purpose for which such Facility Letter of Credit is to be issued;

 

 

5.

be issued; and

the Person for whose benefit the requested Facility Letter of Credit is to

 

 

 

6.

Credit.

any special language required to be included in the Facility Letter of

 

 

Such notice, to be effective, must be received by such Issuing Bank and the Administrative Agent not later than noon (Cleveland time) on the last Business Day on which notice can be given under this Section 2A.4(a).

 

 

(b)

Subject to the terms and conditions of this Article IIA and provided that

the applicable conditions set forth in Article IV hereof have been satisfied, the Issuing Bank shall, on the Issuance Date, issue a Facility Letter of Credit on behalf of the Borrower in accordance with the Letter of Credit Request and the Issuing Bank’s usual and customary business practices unless the Issuing Bank has actually received (i) written notice from the Borrower specifically revoking the Letter of Credit Request with respect to such Facility Letter of Credit given not later than the Business Day immediately preceding the Issuance Date, or (ii) written or telephonic notice from the Administrative Agent stating that the issuance of such Facility Letter of Credit would violate Section 2A.2.

 

 

(c)

The Issuing Bank shall give the Administrative Agent (who shall promptly

notify the Revolving Credit Lenders) and the Borrower Notice of the issuance of a Facility Letter of Credit (the “Issuance Notice”).

 

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(d)

The Issuing Bank shall not extend or amend any Facility Letter of Credit

unless the requirements of this Section 2A.4 are met as though a new Facility Letter of Credit was being requested and issued.

 

2A.5Reimbursement Obligations; Duties of Issuing Bank.

 

 

(a)

TheIssuingBankshallpromptlynotifytheBorrowerandthe

Administrative Agent (who shall promptly notify the Revolving Credit Lenders) of any draw  under a Facility Letter of Credit. Any such draw shall not be deemed to be a default hereunder but shall constitute an Advance of the Revolving Credit Facility in the amount of the Reimbursement Obligation with respect to such Facility Letter of Credit and shall bear interest from the date of the relevant drawing(s) under the pertinent Facility Letter of Credit at the Floating Rate; provided that if a Default regarding the non-payment of any monetary obligations to the Administrative Agent or the Lenders exists at the time of any such drawing(s), then the Borrower shall reimburse the Issuing Bank for drawings under a Facility Letter of Credit issued by the Issuing Bank no later than the next succeeding Business Day after the payment by the Issuing Bank and until repaid such Reimbursement Obligation shall bear interest at the Default Rate.

 

 

(b)

Any action taken or omitted to be taken by the Issuing Bank under or in

connection with any Facility Letter of Credit, if taken or omitted in the absence of willful misconduct or gross negligence, shall not put the Issuing Bank under any resulting liability to any Revolving Credit Lender or, provided that such Issuing Bank has complied with the procedures specified in Section 2A.4, relieve any Revolving Credit Lender of its obligations hereunder to the Issuing Bank. In determining whether to pay under any Facility Letter of  Credit, the Issuing Bank shall have no obligation relative to the Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered in compliance, and that they appear to comply on their face, with the requirements of such Letter of Credit.

 

2A.6Participation.

 

 

(a)

Immediately upon issuance by the Issuing Bank of any Facility Letter of

Credit in accordance with the procedures set forth in this Article IIA, each Revolving Credit Lender shall be deemed to have irrevocably and unconditionally purchased and received from the Issuing Bank, without recourse, representation or warranty, an undivided interest and participation equal to such Revolving Credit Lender’s Revolving Credit Percentage in such Facility Letter of Credit (including, without limitation, all obligations of the Borrower with respect thereto) and all related rights hereunder and under the Subsidiary Guaranty and other Loan Documents.

 

 

(b)

In the event that the Issuing Bank makes any payment under any Facility

Letter of Credit and the Borrower shall not have repaid such amount to the Issuing Bank pursuant to Section 2A.5 hereof, the Issuing Bank shall promptly notify the Administrative  Agent, which shall promptly notify each Revolving Credit Lender of such failure, and each

 

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Revolving Credit Lender shall promptly and unconditionally pay to the Administrative Agent for the account of the Issuing Bank the amount of such Lender’s Revolving Credit Percentage of the unreimbursed amount of such payment, and the Administrative Agent shall promptly pay such amount to the Issuing Bank. A Revolving Credit Lender’s payments of its Revolving Credit Percentage of such Reimbursement Obligation as aforesaid shall be deemed to be a Revolving Credit Loan by such Lender and shall constitute outstanding principal under such Lender’s Note for Revolving Credit Loans. The failure of any Revolving Credit Lender to make available to the Administrative Agent for the account of the Issuing Bank its Revolving Credit Percentage of the unreimbursed amount of any such payment shall not relieve any other Revolving Credit Lender of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank its Revolving Credit Percentage of the unreimbursed amount of any payment on the date such payment is to be made, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make available to the Administrative Agent  its Revolving Credit Percentage of the unreimbursed amount of any payment on the date such payment is to be made. Any Revolving Credit Lender which fails to make any payment required pursuant to this Section 2A.6(b) shall be deemed to be a Defaulting Lender hereunder.

 

 

(c)

Whenever the Issuing Bank receives a payment on account of a

Reimbursement Obligation, including any interest thereon, the Issuing Bank shall promptly pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Revolving Credit Lender which has funded its participating interest therein, in immediately available funds, an amount equal to such Lender’s Revolving Credit Percentage thereof.

 

 

(d)

Upon the request of the Administrative Agent or any Lender, the Issuing

Bank shall furnish to such Administrative Agent or Lender copies of any Facility Letter of Credit to which the Issuing Bank is party and such other documentation as may reasonably be requested by the Administrative Agent or any Lender.

 

 

(e)

The obligations of a Revolving Credit Lender to make payments to the

Administrative Agent for the account of the Issuing Bank with respect to a Facility Letter of Credit shall be absolute, unconditional and irrevocable, not subject to any counterclaim, set-off, qualification or exception whatsoever other than a failure of any such Issuing Bank to comply with the terms of this Agreement relating to the issuance of such Facility Letter of Credit, and such payments shall be made in accordance with the terms and conditions of this Agreement under all circumstances.

 

2A.7Payment of Reimbursement Obligations.

 

 

(a)

The obligation of the Borrower to pay to the Administrative Agent for the

account of the Issuing Bank the amount of all Advances for Reimbursement  Obligations, interest and other amounts payable to the Issuing Bank under or in connection with any Facility Letter of Credit when due shall be absolute and unconditional, irrespective of any claim, set-off, defense or other right which the Borrower may have at any time against any Issuing Bank or any other Person, under all circumstances, including without limitation any of the following circumstances:

 

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(i)

any lack of validity or enforceability of this Agreement or any of

the other Loan Documents;

 

 

(ii)

the existence of any claim, setoff, defense or other right which the

Borrower may have at any time against a beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, the Issuing Bank, any Lender, or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transactions between the Borrower and the beneficiary named in any Facility Letter of Credit);

 

 

(iii)

any draft, certificate or any other document presented under the

Facility Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;

 

 

(iv)

the surrender or impairment of any security for the performance or

observance of any of the terms of any of the Loan Documents; or

 

 

(v)

the occurrence of any Default.

 

 

(b)

In the event any payment by the Borrower received by the Issuing Bank

or the Administrative Agent with respect to a Facility Letter of Credit and distributed by the Administrative Agent to the Revolving Credit Lenders on account of their participations is thereafter set aside, avoided or recovered from the Administrative Agent or Issuing Bank in connection with any receivership, liquidation, reorganization or bankruptcy proceeding, each Revolving Credit Lender which received such distribution shall, upon demand by the Administrative Agent, contribute such Lender’s Revolving Credit Percentage of the amount set aside, avoided or recovered together with interest at the rate required to be paid by the Issuing Bank or the Administrative Agent upon the amount required to be repaid by the Issuing Bank or the Administrative Agent.

 

2A.8Compensation for Facility Letters of Credit.

 

 

(a)

The Borrower shall pay to the Administrative Agent, for the ratable

account of the Revolving Credit Lenders (including the Issuing Bank), based upon such Lenders’ respective Revolving Credit Percentages, a per annum fee (the “Facility Letter of Credit Fee”) as a percentage of the face amount of each Facility Letter of Credit outstanding equal to the LIBOR Applicable Margin in effect from time to time while such Facility Letter of Credit is outstanding. The Facility Letter of Credit Fee relating to any Facility Letter of Credit shall accrue on a daily basis and shall be due and payable in arrears on the first Business Day of each calendar quarter following the issuance of such Facility Letter of Credit and, to the extent any such fees are then due and unpaid, on the Revolving Credit Termination Date or any other earlier date that the Advances and Facility Letter of Credit Obligations are due and payable in full. The Administrative Agent shall promptly remit such Facility Letter of Credit

 

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Fees, when paid, to the other Revolving Credit Lenders in accordance with their Revolving Credit Percentages thereof. The Borrower shall not have any liability to any Lender for the failure of the Administrative Agent to promptly deliver funds to any such Revolving Credit  Lender and shall be deemed to have made all such payments on the date the respective payment is made by the Borrower to the Administrative Agent, provided such payment is received by the time specified in Section 2.13 hereof.

 

 

(b)

The Issuing Bank also shall have the right to receive solely for its own

account an issuance fee equal to one-eighth of one percent (0.125%) of the face amount of each Facility Letter of Credit payable by the Borrower on the Issuance Date for each such Facility Letter of Credit and on the date of any increase therein or extension thereof. The  Issuing Bank shall also be entitled to receive its reasonable and documented out-of-pocket costs and the Issuing Bank’s customary and documented administrative charges of issuing, amending and servicing Facility Letters of Credit and processing draws thereunder.

 

2A.9Letter of Credit Collateral Account.

 

The Borrower hereby agrees that it will immediately upon the occurrence of a Default, or prior to the Revolving Credit Termination Date if a Facility Letter of Credit is outstanding and unexpired on such date as provided in Section 2A.2(iii) above, establish a special collateral account (the “Letter of Credit Collateral Account”) at the Administrative Agent’s office at the address specified pursuant to Article XIII, in the name of the Borrower but under the sole dominion and control of the Administrative Agent, for the benefit of the Revolving Credit Lenders, and in which the Borrower shall have no interest other than as set forth in Section 8.1. The Letter of Credit Collateral Account shall hold the deposits the Borrower is required to make upon the Revolving Credit Termination Date related to any such outstanding and unexpired Facility Letter of Credit or after a Default on account of any outstanding Facility Letters of Credit as described in Section 8.1. In addition to the foregoing, the Borrower hereby grants to the Administrative Agent, for the benefit of the Revolving Credit Lenders, a security interest in and to the Letter of Credit Collateral Account and any funds that may hereafter be on deposit in  such account, including income earned thereon. The Revolving Credit Lenders acknowledge and agree that the Borrower has no obligation to fund the Letter of Credit Collateral Account unless and until so required under Section 2A.2(iii) or Section 8.1 hereof.

 

ARTICLE III. CHANGE IN CIRCUMSTANCES

 

3.1.

Yield Protection. If, on or after the date of this Agreement, the adoption of any

law or any governmental or quasi-governmental rule, regulation, policy, guideline or directive (whether or not having the force of law), or any change in the interpretation or administration thereof by any governmental or quasi-governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender or applicable Lending Installation with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency:

 

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(a)

subjects any Lender or any applicable Lending Installation to any Taxes,

or changes the basis of taxation of payments (other than with respect to Excluded Taxes) to any Lender in respect of its LIBOR Rate Loans, or

 

 

(b)

imposes or increases or deems applicable any reserve, assessment,

insurance charge, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender or any applicable Lending Installation (other than the Reserve Requirement and any other reserves and assessments taken into account in determining the interest rate applicable to LIBOR Rate Advances), or

 

 

(c)

imposes any other condition the direct result of which is to increase the

cost to any Lender or any applicable Lending Installation of making, funding or maintaining its LIBOR Rate Loans, or reduces any amount receivable by any Lender or any applicable Lending Installation in connection with its LIBOR Rate Loans, or requires any Lender or any applicable Lending Installation to make any payment calculated by reference to the amount of LIBOR Rate Loans, by a material amount,

 

and the result of any of the foregoing is to increase the cost to such Lender or applicable Lending Installation, as the case may be, of making or maintaining its LIBOR Rate Loans or Commitment or to reduce the return received by such Lender or applicable Lending Installation in connection with such LIBOR Rate Loans or Commitment, then, within 15 days of demand by such Lender, the Borrower shall pay such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction in amount received.

 

 

3.2.

Changes in Capital Adequacy Regulations. If a Lender in good faith determines

the amount of capital or liquidity required or expected to be maintained by such Lender, any Lending Installation of such Lender or any corporation controlling such Lender  is increased as  a result of a Change (as hereinafter defined), then, within fifteen (15) days of demand by such Lender, Borrower shall pay such Lender the amount necessary to compensate for any shortfall in the rate of return on the portion of such increased capital which such Lender, acting in good faith and not on an arbitrary or capricious basis, using any reasonable method, determines is attributable to this Agreement, its outstanding credit exposure hereunder or its obligation to make Loans hereunder (after taking into account such Lender’s policies as to capital  adequacy). “Change” means (i) any change after the date of this Agreement in the Risk-Based Capital Guidelines (as hereinafter defined) or (ii) any adoption of or change in any other law, governmental or quasi-governmental rule, regulation, policy, guideline, interpretation, or directive (whether or not having the force of law) after the date of this Agreement which affects the amount of capital or liquidity required or expected to be maintained by any Lender or any Lending Installation or any corporation controlling any Lender. Notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines and directives promulgated thereunder 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 or foreign regulatory authorities, in each case pursuant to Basel III, shall be deemed to be a

 

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“Change”, regardless of the date adopted, issued, promulgated or implemented. “Risk-Based Capital Guidelines” means (i) the risk-based capital guidelines in effect in the United States on the date of this Agreement, including transition rules, and (ii) the corresponding capital regulations promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, including transition rules, and any amendments to such guidelines, rules and regulations adopted prior to the Agreement Effective Date.

 

 

3.3.

Availability of Types of Advances. If any Lender in good faith determines that

maintenance of any of its LIBOR Rate Loans at a suitable Lending Installation would violate any applicable law, rule, regulation or directive, whether or not having the force of law, the Administrative Agent shall, with written notice to Borrower, suspend the availability of the affected Type of Advance and, if required by such applicable law, rule, regulation or directive, require any LIBOR Rate Loans of the affected Type be converted to Floating Rate Loans; or if any Lender in good faith determines that (i) deposits of a type or maturity appropriate to match fund LIBOR Rate Advances are not available, the Administrative Agent shall, with written notice to Borrower, suspend the availability of the affected Type of Advance with respect to any LIBOR Rate Advances made after the date of any such determination, then, if for any reason whatsoever the provisions of Section 3.1 are inapplicable, the Administrative Agent shall, with written notice to Borrower, suspend the availability of the affected Type of Advance with respect to any LIBOR Rate Advances made after the date of any such determination.

 

 

3.4.

Funding Indemnification.If  any  payment  of  a  ratable  LIBOR  Rate Advance

occurs on a date which is not the last day of the applicable Interest Period, whether because of acceleration, prepayment or otherwise, or a ratable LIBOR Rate Advance is not made on the date specified by the Borrower for any reason other than default by the Lenders or as a result of unavailability pursuant to Section 3.3, the Borrower will indemnify each Lender for any actual loss or cost incurred by it resulting therefrom, including, without limitation, any loss or cost (incurred or expected to be incurred) in liquidating or employing deposits acquired to fund or maintain the ratable LIBOR Rate Advance and shall pay all such losses or costs within fifteen

(15) days after written demand therefor.

 

 

3.5.

Taxes.

 

 

(a)

All payments by the Borrower to or for the account of any Lender or the

Administrative Agent hereunder or under any Note shall be made free and clear of and without deduction for any and all Taxes, except as required by applicable law. If the Borrower shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder to any Lender or the Administrative Agent, (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 3.5) such Lender or the Administrative Agent (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions, (iii) the Borrower shall pay the full amount deducted to the relevant

 

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authority in accordance with applicable law and (iv) the Borrower shall furnish to the Administrative Agent the original copy of a receipt evidencing payment thereof within thirty (30) days after such payment is made.

 

 

(b)

In addition, the Borrower hereby agrees to pay any present or future

stamp or documentary taxes and any other excise or property taxes, charges or similar levies which arise from any payment made hereunder or under any Note or from the execution or delivery of, or otherwise with respect to, this Agreement or any Note  (“Other Taxes”).

 

 

(c)

The Borrower hereby agrees to indemnify the Administrative Agent and

each Lender for the full amount of Taxes or Other Taxes (including, without limitation, any Taxes or Other Taxes imposed on amounts payable under this Section 3.5) paid by the Administrative Agent or such Lender and any liability (including penalties, interest and expenses so long as the Administrative Agent or such Lender has promptly paid  any such Taxes or Other Taxes) arising therefrom or with respect thereto. Payments  due under this indemnification shall be made within thirty (30) days of the date the Administrative Agent or such Lender makes demand therefor pursuant to Section 3.6. Notwithstanding anything to the contrary in this Section 3.5, the Borrower shall not be obligated to indemnify the Administrative Agent or any Lender against, or reimburse them for, any Excluded Taxes.

 

 

(d)

Each Lender that is not incorporated under the laws of the United States

of America or a state thereof (each a “Non-U.S. Lender”) agrees that it will, not more than ten Business Days after the date it becomes a party to the Agreement, (i) deliver to each of the Borrower and the Administrative Agent two duly completed copies of United States Internal Revenue Service Form W-8BEN-E, W-8ECI or W-8IMY, as applicable, certifying in either case that such Lender is entitled to receive payments under this Agreement without deduction or withholding of any United States federal income taxes, and (ii) deliver to each of the Borrower and the Administrative Agent a United States Internal Revenue Form W-8 or W-9, as the case may be, and certify that it is entitled to an exemption from United States backup withholding tax. Each Non-U.S. Lender further undertakes to deliver to each of the Borrower and the Administrative Agent (x) renewals or additional copies of such form (or any successor form) on or before the date that  such form expires or becomes obsolete, and (y) after the occurrence of any event requiring a change in the most recent forms so delivered by it, such additional forms or amendments thereto as may be reasonably requested by the Borrower or the Administrative Agent. All forms or amendments described in the preceding sentence shall certify that such Lender is entitled to receive payments under this Agreement without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Lender from duly completing and delivering any such form or amendment with respect to it and such Lender advises the Borrower and the Administrative Agent that it is not capable of receiving payments

 

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without any deduction or withholding of United States federal income tax. If the form provided by a Lender at the time such Lender first becomes a party to this Agreement indicates a United States interest withholding tax rate in excess of zero, withholding tax at such rate shall be considered included in “Excluded Taxes”.

 

 

(e)

For any period during which a Non-U.S. Lender has failed to provide the

Borrower with an appropriate form pursuant to clause (d), above (unless such failure is due to a change in treaty, law or regulation, or any change in the interpretation or administration thereof by any governmental authority, occurring subsequent to the date on which a form originally was required to be provided), such Non-U.S. Lender shall not be entitled to indemnification under this Section 3.5 with respect to Taxes imposed by the United States.

 

 

(f)

Any Lender that is entitled to an exemption from or reduction of

withholding tax with respect to payments under this Agreement or any Note pursuant to the law of any relevant jurisdiction or any treaty shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable law, such properly completed and executed documentation prescribed by applicable law as will permit such payments to be made without withholding or at a reduced rate following receipt of such documentation.

 

 

(g)

If a payment made to a Bank under any Loan Document would be subject

to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Bank shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower and the Administrative Agent as may be necessary for the Borrower  and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes  of this clause (g), “FATCA” shall include any amendments made to FATCA after the  date of this Agreement.

 

 

(h)

If the U.S. Internal Revenue Service or any other governmental authority

of the United States or any other country or any political subdivision thereof asserts a claim that the Administrative Agent did not properly withhold tax from amounts paid to or for the account of any Lender (because the appropriate form was not delivered or properly completed, because such Lender failed to notify the Administrative Agent of a change in circumstances which rendered its exemption from withholding ineffective, or for any other reason), such Lender shall indemnify the Administrative Agent fully for all amounts paid, directly or indirectly, by the Administrative Agent as tax, withholding therefor, or otherwise, including penalties and interest, and including taxes imposed by

 

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any jurisdiction on amounts payable to the Administrative Agent under this subsection, together with all costs and expenses related thereto (including attorneys’ fees and time charges of attorneys for the Administrative Agent, which attorneys may be employees of the Administrative Agent). The obligations of the Lenders under this Section 3.5(h) shall survive the payment of the Obligations and termination of this Agreement and any such Lender obligated to indemnify the Administrative Agent shall not be entitled to indemnification from the Borrower with respect to such amounts, whether pursuant to this Article or otherwise, except to the extent the Borrower participated in the actions giving rise to such liability.

 

 

(i)

If any party determines, in its sole discretion exercised in good faith, that

it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 3.5 (including by the payment of additional amounts pursuant to this Section 3.5), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 3.5 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant governmental authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this Section 3.5(i) (plus any penalties, interest or other charges  imposed by the relevant governmental authority) in the event that such indemnified party is required to repay such refund to such governmental authority. Notwithstanding anything to the contrary in this Section 3.5(i), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 3.5(i) the payment of which would place the indemnified party in a less favorable net after Tax position than the indemnified party would have been in if the Tax subject to indemnification had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts giving rise to such refund had never been paid. This Section 3.5(i) shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

 

 

3.6.

Lender Statements; Survival of Indemnity. To the extent reasonably possible,

each Lender shall designate an alternate Lending Installation with respect to its LIBOR Rate Loans to reduce any liability of the Borrower to such Lender under Sections 3.1, 3.2 and 3.5 or to avoid the unavailability of LIBOR Rate Advances under Section 3.3, so long as such designation is not, in the reasonable judgment of such Lender, disadvantageous to such Lender. Each Lender shall deliver a written statement of such Lender to the Borrower (with a copy to the Administrative Agent) as to the amount due, if any, under Sections 3.1, 3.2, 3.4 or

3.5.  Such written statement shall set forth in reasonable detail the calculations upon which  such Lender determined such amount and shall be final, conclusive and binding on the Borrower in the absence of manifest error. Determination of amounts payable under such Sections in connection with a LIBOR Rate Loan shall be calculated as though each Lender funded  its  LIBOR  Rate  Loan  through  the  purchase  of  a  deposit  of  the  type  and maturity

 

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corresponding to the deposit used as a reference in determining the LIBOR Rate applicable to such Loan, whether in fact that is the case or not. Unless otherwise provided herein, the  amount specified in the written statement of any Lender shall be payable thirty (30) days after receipt by the Borrower of such written statement. The obligations of the Borrower under Sections 3.1, 3.2, 3.4 and 3.5 shall survive payment of the Obligations and termination of this Agreement. Notwithstanding the foregoing, a Lender shall not have the right to  request payment of amounts under Sections 3.1, 3.2 or 3.5 to the extent that such amounts relate to obligations accruing more than one hundred twenty (120) days prior to the date upon which such Lender requests payment from the Borrower, provided however that, if any change in law giving rise to such increased costs is retroactive, then the 120-day period referred to above  shall be extended to include the period of retroactive effect thereof.

 

ARTICLE IV. CONDITIONS PRECEDENT

 

 

4.1.

Initial Advance. The Lenders shall not be required to make the initial Advance

hereunder, or issue the initial Facility Letter of Credit hereunder, unless and until (a) the Borrower shall, prior to or concurrently therewith, have paid all fees due and payable to the Lenders and the Administrative Agent hereunder, and (b) the Borrower shall have furnished to the Administrative Agent the following:

 

 

(a)

The duly executed originals of this Agreement (with sufficient originals

thereof for each of the Lenders), the Notes payable to each of the Lenders, the Subsidiary Guaranty and any other additional Loan Documents;

 

 

(b)

(A) Certificates of good standing for each Loan Party from its state of

organization, certified by the appropriate governmental officer and dated not more than thirty (30) days prior to the Agreement Effective Date, and (B) foreign qualification certificates for each Loan Party certified by the appropriate governmental officer and dated not more than thirty (30) days prior to the Agreement Effective Date, for each jurisdiction in which an Unencumbered Property owned by such Loan Party is located;

 

 

(c)

Copies of the formation documents (including code of regulations, if

appropriate) of the Loan Parties, certified by an officer of the Borrower or such other Loan Party, as appropriate, together with all amendments thereto;

 

 

(d)

Incumbency certificates, executed by officers of the Loan Parties, which

shall identify by name and title and bear the signature of the Persons authorized to sign this Agreement and the additional Loan Documents and to make borrowings hereunder on behalf of such parties, upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by the applicable Loan Party;

 

 

(e)

Copies, certified by a Secretary or an Assistant Secretary of the

applicable Loan Party, of the Board of Directors’ resolutions (and resolutions of other

 

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bodies, if any are reasonably deemed necessary by counsel for the Administrative Agent) authorizing the Advances provided for herein, with respect to the Borrower, and the execution, delivery and performance of this Agreement and the additional Loan Documents to be executed and delivered by the applicable Loan Party;

 

 

(f)

(i) A written opinion of the Loan Parties’ special counsel, Proskauer Rose

LLP, addressed to the Lenders and in form reasonably satisfactory to the Administrative Agent, and (ii) a written opinion of the Loan Parties’ special Maryland counsel, Venable LLP, addressed to the Lenders and in form reasonably satisfactory to the Administrative Agent;

 

 

(g)

A certificate, signed by an Authorized Officer of the Borrower, stating that

on the Agreement Effective Date no Default or Unmatured Default has occurred and is continuing, and there has been no change in the financial condition or business of the Borrower and the Consolidated Group taken as a whole since the date of the most recent financial statements delivered to the Administrative Agent which would reasonably be expected to have a Material Adverse Effect and that all representations and warranties of the Borrower are true and correct in all material respects (except to  the extent that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of the Agreement Effective Date (or, to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall be true and correct in all material respects as of such earlier date, except to the extent that any representation and warranty that is qualified by materiality shall be true and correct in all respects on such earlier date);

 

 

(h)

The most recent quarterly financial statements of the Borrower;

 

 

(i)

UCC financing statement searches with respect to the Borrower and each

of the other Loan Parties from the state of its organization and with respect to each owner of an Initial Unencumbered Property from the state in which such Unencumbered Property is located;

 

 

(j)

Written money transfer instructions, addressed to the Administrative

Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Administrative Agent may have reasonably requested;

 

 

(k)

A pro forma compliance certificate in the form of Exhibit A, utilizing the

covenants established herein and executed by the Borrower’s chief financial officer or chief accounting officer;

 

 

(l)

Evidence that all fees due to each of the Lenders with respect to this

Agreement have been paid;

 

 

(m)

A subordination agreement executed by the Advisor in the form attached

hereto as Exhibit K and made a part hereof;

 

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(n)

A Beneficial Ownership Certification, if Borrower qualifies as a legal entity

customer under the Beneficial Ownership Regulation, which such Beneficial Ownership Certification shall also be delivered to any Lender that so requests in addition with any other “know your customer” information that such Lender requests;

 

 

(o)

Intentionally Omitted;

 

 

(p)

The absence of any action, suit, investigation or proceeding, pending or

threatened, in any court or before any arbitrator or Governmental Authority that is reasonably likely to have a Material Adverse Effect on the Borrower and the Consolidated Group, taken as a whole, or that could reasonably be expected to have a Material Adverse Effect on any transaction contemplated hereby or on the ability of the Borrower or the Subsidiary Guarantors, taken as a whole, to perform their respective obligations under the Loan Documents; and

 

 

(q)

Such other documents as the Administrative Agent or its counsel may