0001687229-20-000042.txt : 20201209 0001687229-20-000042.hdr.sgml : 20201209 20201209164152 ACCESSION NUMBER: 0001687229-20-000042 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 15 CONFORMED PERIOD OF REPORT: 20201208 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20201209 DATE AS OF CHANGE: 20201209 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Invitation Homes Inc. CENTRAL INDEX KEY: 0001687229 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE OPERATORS (NO DEVELOPERS) & LESSORS [6510] IRS NUMBER: 814080868 STATE OF INCORPORATION: TX FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-38004 FILM NUMBER: 201378288 BUSINESS ADDRESS: STREET 1: 1717 MAIN STREET, SUITE 2000 CITY: DALLAS STATE: TX ZIP: 75201 BUSINESS PHONE: (972) 421-3600 MAIL ADDRESS: STREET 1: 1717 MAIN STREET, SUITE 2000 CITY: DALLAS STATE: TX ZIP: 75201 8-K 1 invh-20201208.htm 8-K invh-20201208
false000168722900016872292020-12-082020-12-08

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form
8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 8, 2020
Invitation Homes Inc.
(Exact Name of Registrant as Specified in its charter)
Maryland
001-38004
90-0939055
(State or other jurisdiction of incorporation)
(Commission File Number)
(I.R.S. Employer Identification No.)
1717 Main Street, Suite 2000
Dallas, Texas 75201
(Address of principal executive offices, including zip code)
(972) 421-3600
(Registrant’s telephone number, including area code)
N/A
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of Each Class
Trading Symbol(s)
Name of Each Exchange on Which Registered
Common stock, $0.01 par value
INVH
New York Stock Exchange
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2):
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.




Item 1.01
Entry into a Material Definitive Agreement.
On December 8, 2020, Invitation Homes Operating Partnership LP (the “Borrower”), a wholly owned subsidiary of Invitation Homes Inc. (the “Company”), entered into the Amended and Restated Revolving Credit and Term Loan Agreement (the “New Credit Agreement”) with the lenders party thereto (the “Lenders”) and Bank of America, N.A., as administrative agent. The New Credit Agreement provides for senior unsecured credit facilities (together, collectively, the “New Credit Facility”) consisting of:
• a $1,000.0 million revolving credit facility (the “Revolving Credit Facility”), which will mature on January 31, 2025, with two six-month extension options, subject to certain conditions; and
• a $2,500.0 million term loan facility (the “Term Loan Facility”), which will mature on January 31, 2025, with two six-month extension options, subject to certain conditions.
The Revolving Credit Facility also includes borrowing capacity available for letters of credit subject to certain sublimits. The New Credit Agreement also includes the option to enter into additional incremental credit facilities (including an uncommitted incremental facility that provides the Borrower with the option to increase the size of the Revolving Facility and/or the Term Loan Facility such that the aggregate amount of the New Credit Facility, together with all such incremental facilities, does not exceed at any time $4,000.0 million), subject to certain limitations.
The Revolving Credit Facility replaces the Company’s existing $1,000.0 million revolving credit facility, which had no balance drawn as of the date of effectiveness of the New Credit Agreement. Proceeds from the Term Loan Facility and excess cash on hand were used to fully repay the existing $1,500.0 million term loan facility that was due to reach final maturity on February 6, 2022, fully repay the $731.0 million principal balance of the SWH 2017-1 securitization due to reach final maturity on January 9, 2023, and voluntarily prepay higher-cost classes of certificates of various securitizations due to reach final maturity between March 9, 2025 and January 9, 2026.
Interest Rate and Fees
Borrowings under the New Credit Agreement bear interest, at the Borrower’s option, at a rate equal to a margin over either (a) a LIBOR rate determined by reference to the Bloomberg LIBOR rate (or comparable or successor rate) for the interest period relevant to such borrowing or (b) a base rate determined by reference to the highest of (1) the administrative agent’s prime lending rate, (2) the federal funds effective rate plus 0.50% and (3) the LIBOR rate that would be payable on such day for a LIBOR rate loan with a one-month interest period plus 1.00%. The margin is based on a total leverage based grid. The margin for the Revolving Credit Facility ranges from 0.50% to 1.15%, in the case of base rate loans, and 1.50% to 2.15%, in the case of LIBOR rate loans. The margin for the Term Loan Facility ranges from 0.45% to 1.15%, in the case of base rate loans, and 1.45% to 2.15%, in the case of LIBOR rate loans. The margin as of the date of effectiveness of the New Credit Agreement is (1) in respect of the Revolving Credit Facility, 0.70%, in the case of base rate loans, and 1.70%, in the case of LIBOR rate loans and (2) in respect of the Term Loan Facility, 0.65%, in the case of base rate loans, and 1.65%, in the case of LIBOR rate loans. In addition, upon the Borrower’s receiving an investment grade rating on its non-credit enhanced, senior unsecured long term debt of BBB- or better from Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies, Inc., or Baa3 or better from Moody’s Investors Service, Inc. (an “Investment Grade Rating Event”), the Borrower may elect to convert to a credit rating based pricing grid. The New Credit Agreement also includes a sustainability component whereby the Revolving Credit Facility pricing can improve upon the Company’s achievement of certain sustainability ratings, determined via an independent third-party evaluation.
The Borrower is also required to pay a facility fee to the lenders in respect of the unutilized commitments thereunder at a rate of either 0.30% or 0.20% per annum, depending on the level of usage, as well as customary letter of credit fees. Upon converting to a credit rating pricing based grid, the unused facility fee will no longer apply and the Borrower will be required to pay a facility fee ranging from 0.10% to 0.30%, as well as customary letter of credit fees.
Prepayments
The Borrower is permitted to voluntarily repay amounts outstanding under the New Credit Facility at any time without premium or penalty, subject to the payment of customary “breakage” costs in the case of the prepayment of LIBOR loans. Borrowings under the Revolving Credit Facility may be reborrowed until the final maturity date thereof, however, once borrowings under the Term Loan Facility are repaid, no further borrowings will be permitted under the Term Loan Facility.
Amortization
The New Credit Facility has no required amortization payments prior to the final maturity date.




Guarantees
The obligations under the New Credit Facility are guaranteed on a joint and several basis by each direct and indirect domestic wholly owned subsidiary of the Borrower that owns, directly or indirectly, unencumbered assets (the “Subsidiary Guarantors”), subject to certain exceptions. These guarantees will be automatically released upon the occurrence of certain events, including if the applicable Subsidiary Guarantor is no longer a direct owner of an unencumbered asset. In addition, the Company and its subsidiaries may be required to provide a guarantee of the New Credit Facility under certain circumstances, including if the Company does not maintain its qualification as a real estate investment trust.
Certain Covenants and Events of Default
The New Credit Agreement contains certain customary affirmative and negative covenants and events of default. Subject to certain exceptions, such covenants restrict the ability of the Borrower, the Subsidiary Guarantors and their respective subsidiaries to, among other things:
• engage in certain mergers, consolidations or liquidations;
• sell, lease or transfer all or substantially all of their respective assets;
• engage in certain transactions with affiliates;
• make changes to the Borrower’s fiscal year or change the method of determining fiscal quarters;
• make changes in the nature of the business of the Borrower and its subsidiaries; and
• incur additional indebtedness on a pari passu basis with the New Credit Facility.
The New Credit Agreement also requires the Borrower, on a consolidated basis with its subsidiaries, to maintain a (i) maximum total leverage ratio, (ii) maximum secured leverage ratio, (iii) maximum unencumbered leverage ratio, (iv) minimum fixed charge coverage ratio, (v) minimum unsecured interest coverage ratio and (vi) maximum secured recourse leverage ratio.
If an event of default occurs, the lenders will be entitled to take various actions, including the acceleration of amounts due under the New Credit Agreement.
The foregoing summary of the New Credit Agreement is qualified in its entirety by reference to the New Credit Agreement, a copy of which is attached hereto as Exhibit 10.1 and incorporated herein by reference.
From time to time, the Company has had customary commercial and/or investment banking relationships with affiliates of Bank of America, N.A., BofA Securities, Inc., Wells Fargo Securities, LLC, BBVA USA, Deutsche Bank Securities Inc., JPMorgan Chase Bank, N.A., Citibank, N.A., Credit Suisse AG New York Branch, Goldman, Sachs Bank USA., Keybanc Capital Markets, Inc., Mizuho Bank, Ltd., Morgan Stanley Senior Funding, Inc., RBC Capital Markets, LLC, Wells Fargo Bank, National Association, KeyBank National Association, Royal Bank of Canada, the Bank of Nova Scotia, Bank of Montreal, BMO Harris Bank, N.A., BNP Paribas, Capital One, National Association, Regions Bank, US Bank, N.A., The Bank of New York Mellon, Comerica Bank, PNC Bank, National Association, First Financial Bank, and/or certain of their affiliates.
Item 9.01
Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No.Description
Amended and Restated Revolving Credit and Term Loan Agreement, dated as of December 8, 2020, by and among Invitation Homes Operating Partnership LP, as borrower, the lenders party thereto, Bank of America, N.A., as administrative agent and the other parties party thereto.
104Cover Page Interactive Data File (embedded within the Inline XBRL document).





SIGNATURE

    Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
INVITATION HOMES INC.
By:/s/ Mark A. Solls
Name:Mark A. Solls
Title:
Executive Vice President, Secretary
and Chief Legal Officer
Date:December 9, 2020



EX-10.1 2 exhibitcreditfacility.htm EX-10.1 Document


EXHIBIT 10.1
*** Information has been omitted pursuant to
Item 601(b)(2) of Regulation S-K.

EXECUTION COPY

Deal CUSIP 46187CAD3
Revolving Loan CUSIP 46187CAE1
Term Loan CUSIP 46187CAF8



AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT
dated as of December 8, 2020

among

INVITATION HOMES OPERATING PARTNERSHIP LP,
as Borrower,

THE LENDERS PARTY HERETO,

BANK OF AMERICA, N.A.,
as Administrative Agent,

BofA SECURITIES, INC., WELLS FARGO SECURITIES, LLC,
BBVA USA,
DEUTSCHE BANK SECURITIES INC. and
JPMORGAN CHASE BANK, N.A.,
as Joint Lead Arrangers and Joint Bookrunners,

CITIBANK, N.A., CREDIT SUISSE AG, NEW YORK BRANCH, GOLDMAN SACHS BANK USA,
KEYBANC CAPITAL MARKETS, INC., MIZUHO BANK, LTD.,
MORGAN STANLEY SENIOR FUNDING, INC.
and
RBC CAPITAL MARKETS,
as Passive Joint Lead Arrangers,

WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Syndication Agent

BBVA USA,
as Sustainable Agent & Coordinator

BBVA USA, DEUTSCHE BANK SECURITIES INC., JPMORGAN CHASE BANK, N.A.,
CITIBANK, N.A., CREDIT SUISSE AG, NEW YORK BRANCH, GOLDMAN SACHS BANK USA,
KEYBANK NATIONAL ASSOCIATION, MIZUHO BANK, LTD.,
MORGAN STANLEY SENIOR FUNDING, INC. and ROYAL BANK OF CANADA,
as Documentation Agents

THE BANK OF NOVA SCOTIA, BANK OF MONTREAL,
BNP PARIBAS, and CAPITAL ONE, NATIONAL ASSOCIATION,
as Senior Managing Agents

REGIONS BANK, and U.S. BANK, NATIONAL ASSOCIATION,
as Managing Agents



TABLE OF CONTENTSPage
ARTICLE I Definitions1
SECTION 1.01Defined Terms1
SECTION 1.02Classification of Loans and Borrowings41
SECTION 1.03Terms Generally41
SECTION 1.04Accounting Terms; GAAP41
SECTION 1.05Rounding41
SECTION 1.06Interest Rates42
ARTICLE II The Credits42
SECTION 2.01Commitments42
SECTION 2.02Loans and Borrowings42
SECTION 2.03Requests for Borrowings, Conversions and Continuations of Loans43
SECTION 2.04Incremental Facilities44
SECTION 2.05[Intentionally Omitted]47
SECTION 2.06Letters of Credit47
SECTION 2.07Funding of Borrowings54
SECTION 2.08[Intentionally Omitted]55
SECTION 2.09Termination and Reduction of Commitments55
SECTION 2.10Repayment of Loans; Evidence of Debt55
SECTION 2.11Prepayment of Loans56
SECTION 2.12Fees57
SECTION 2.13Interest58
SECTION 2.14Alternate Rate of Interest59
SECTION 2.15Increased Costs62
SECTION 2.16Break Funding Payments64
SECTION 2.17Payments Free of Taxes64
SECTION 2.18Payments Generally; Pro Rata Treatment; Sharing of Set-offs67
SECTION 2.19Mitigation Obligations; Replacement of Lenders69
SECTION 2.20Defaulting Lenders70
SECTION 2.21Extensions of Maturity Dates72
SECTION 2.22Illegality73
SECTION 2.23Cash Collateral74
ARTICLE III Representations and Warranties75
SECTION 3.01Organization; Powers75
SECTION 3.02Authorization; Enforceability75
SECTION 3.03Approvals; No Conflicts75
SECTION 3.04Financial Condition; No Material Adverse Change75
i


TABLE OF CONTENTSPage
(continued)
SECTION 3.05Properties76
SECTION 3.06Litigation and Environmental Matters76
SECTION 3.07Compliance with Laws and Agreements; No Default76
SECTION 3.08Investment Company Status77
SECTION 3.09Taxes77
SECTION 3.10ERISA77
SECTION 3.11Disclosure77
SECTION 3.12Sanctions Laws and Regulations; USA Patriot Act77
SECTION 3.13Federal Reserve Board Regulations77
SECTION 3.14Subsidiaries77
SECTION 3.15Solvency78
SECTION 3.16Insurance78
SECTION 3.17OFAC78
SECTION 3.18Anti-Corruption Laws; Anti-Money Laundering Laws78
SECTION 3.19Affected Financial Institution78
SECTION 3.20Covered Entities78
ARTICLE IV Conditions79
SECTION 4.01Effective Date79
SECTION 4.02Each Credit Event80
ARTICLE V Affirmative Covenants81
SECTION 5.01Financial Statements; Other Information81
SECTION 5.02Notices of Material Events, Ratings Changes82
SECTION 5.03Existence; Conduct of Business83
SECTION 5.04Payment of Obligations83
SECTION 5.05Maintenance of Properties; Insurance83
SECTION 5.06Books and Records; Inspection Rights84
SECTION 5.07Compliance with Laws84
SECTION 5.08Use of Proceeds and Letters of Credit84
SECTION 5.09Addition and Release of Guaranties84
SECTION 5.10[Intentionally Omitted]86
SECTION 5.11Further Assurances86
SECTION 5.12REIT Status86
ARTICLE VI Negative Covenants86
SECTION 6.01Financial Covenants86
SECTION 6.02Fundamental Changes88
ii


TABLE OF CONTENTSPage
(continued)
SECTION 6.03Restricted Payments88
SECTION 6.04Transactions with Affiliates88
SECTION 6.05Changes in Fiscal Periods89
SECTION 6.06Burdensome Agreements89
ARTICLE VII Events of Default89
SECTION 7.01Events of Default89
SECTION 7.02Distribution of Payments after Default91
ARTICLE VIII The Administrative Agent92
SECTION 8.01Appointment and Authority92
SECTION 8.02Rights as a Lender93
SECTION 8.03Exculpatory Provisions93
SECTION 8.04Reliance by Administrative Agent93
SECTION 8.05Delegation of Duties94
SECTION 8.06Resignation or Removal of Administrative Agent94
SECTION 8.07Non-Reliance on Administrative Agent and Other Lenders95
SECTION 8.08No Other Duties, Etc.95
SECTION 8.09Issuing Bank Reports to Administrative Agent95
SECTION 8.10Lender Hedge Agreements96
SECTION 8.11Certain ERISA Matters96
ARTICLE IX Miscellaneous97
SECTION 9.01Notices97
SECTION 9.02Waivers; Amendments99
SECTION 9.03Expenses; Indemnity; Damage Waiver100
SECTION 9.04Successors and Assigns102
SECTION 9.05Survival108
SECTION 9.06Counterparts; Integration; Effectiveness; Electronic Execution108
SECTION 9.07Severability109
SECTION 9.08Right of Setoff109
SECTION 9.09Governing Law; Jurisdiction; Consent to Service of Process110
SECTION 9.10WAIVER OF JURY TRIAL110
SECTION 9.11Headings111
SECTION 9.12Confidentiality111
SECTION 9.13Material Non-Public Information111
SECTION 9.14Interest Rate Limitation112
iii


TABLE OF CONTENTSPage
(continued)
SECTION 9.15USA PATRIOT Act113
SECTION 9.16No Advisory or Fiduciary Responsibility113
SECTION 9.17Acknowledgement and Consent to Bail-In of Affected Financial Institutions113
SECTION 9.18Acknowledgement Regarding Any Supported QFCs114
SECTION 9.19Limited Recourse115
SECTION 9.20ENTIRE AGREEMENT115
SECTION 9.21No Novation115







iv


SCHEDULES:
Schedule 1.01Existing Letters of Credit
Schedule 2.01Commitments
Schedule 3.05Unencumbered Assets
Schedule 3.06Disclosed Matters
Schedule 3.14Subsidiary Guarantors
Schedule 6.04Affiliate Transactions
Schedule 9.01Certain Addresses for Notices
EXHIBITS:
Exhibit AForm of Assignment and Assumption
Exhibit BForm of Compliance Certificate
Exhibit C-1U.S. Tax Certificate (For Non-U.S. Lenders that are not Partnerships for U.S. Federal Income Tax Purposes)
Exhibit C-2U.S. Tax Certificate (For Non-U.S. Participants that are not Partnerships for U.S. Federal Income Tax Purposes)
Exhibit C-3U.S. Tax Certificate (For Non-U.S. Participants that are Partnerships for U.S. Federal Income Tax Purposes)
Exhibit C-4U.S. Tax Certificate (For Non-U.S. Lenders that are Partnerships for U.S. Federal Income Tax Purposes)
Exhibit DForm of Note
Exhibit EForm of Borrowing Request
Exhibit FForm of Parent Guaranty
Exhibit GForm of Notice of Loan Prepayment
Exhibit HForm of Letter of Credit Report
Exhibit IForm of Designation Notice
v


AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT

THIS AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT (this “Agreement”), dated as of December 8, 2020, is entered into by and among INVITATION HOMES OPERATING PARTNERSHIP LP, a Delaware limited partnership, as Borrower, the LENDERS party hereto, and BANK OF AMERICA, N.A., as Administrative Agent.

The Borrower, the lenders party thereto and Bank of America, N.A., as administrative agent, are parties to that certain Revolving Credit and Term Loan Agreement, dated as of February 6, 2017 (as amended or otherwise modified prior to the date hereof, the “Existing Credit Agreement”).
The parties hereto desire to amend and restate the Existing Credit Agreement in its entirety, but not as a novation, on the terms and subject to the conditions hereinafter set forth.

In consideration of the mutual covenants and agreements contained herein, the parties hereto hereby agree that the Existing Credit Agreement shall be, and hereby is, amended and restated in its entirety as follows, effective on and as of the Effective Date (as defined below):

ARTICLE I
Definitions

SECTION 1.01    Defined Terms. As used in this Agreement, the following terms have the meanings specified below:

Act has the meaning assigned to such term in Section 9.15.

Additional Subsidiary Guarantor means any Subsidiary of the Borrower that is required to provide a Subsidiary Guaranty in accordance with Section 5.09(a).

Administrative Agent means Bank of America, N.A., in its capacity as administrative agent for the Lenders hereunder, and any successor thereto appointed pursuant to Article VIII.

Administrative Questionnairemeans an administrative questionnaire in a form supplied by the Administrative Agent.

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

Affiliatemeans, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. In no event shall the Administrative Agent or any Lender be deemed to be an Affiliate of the Borrower.

1


Agent Party has the meaning assigned to such term in Section 9.01(d).

Agreementhas the meaning assigned to such term in the preamble to this Agreement.

Applicable Pricing Grid means (i) as of the Effective Date and continuing until the Borrower makes an effective Investment Grade Election, the pricing grid set forth in the definition of Applicable Rate – Leverage, and (ii) from and after the first Business Day following the date on which the Borrower makes an effective Investment Grade Election, the pricing grid set forth in the definition of Applicable Rate – Rating.

Applicable Ratemeans, (i) as of the Effective Date and continuing until the Borrower makes an effective Investment Grade Election, the Applicable Rate – Leverage, and (ii) from and after the first Business Day following the date on which the Borrower makes an effective Investment Grade Election, the Applicable Rate – Rating. Such Investment Grade Election and the application of the Applicable Rate – Rating shall be irrevocable once made.

Applicable Rate – Leveragemeans, for any day, with respect to each Type and Class of Loan, as the case may be, the number of basis points determined by the range into which the Total Leverage Ratio then falls in the table below:

LevelTotal Leverage RatioRevolving Loan:Term Loan:
Eurodollar Loans and Daily Floating Rate Loans - Applicable Rate (bps)Base Rate Loans - Applicable Rate (bps)Eurodollar Loans - Applicable Rate (bps)Base Rate Loans -Applicable Rate
(bps)
Level I<35%1505014545
Level II>35% and <40%1606015555
Level III>40% and <45%1707016565
Level IV>45% and <50%1858518080
Level V>50% and <55%20010019595
Level VI
>55%
215115215115

For purposes of this definition, any increase or decrease in the Applicable Rate - Leverage resulting from a change in the Total Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered in accordance with Section 5.01(c); provided, however, that if such Compliance Certificate is not delivered within thirty (30) days after notice from the Administrative Agent or the Required Lenders to the Borrower notifying the Borrower of the failure to deliver such Compliance Certificate on the date when due in accordance with Section 5.01(c), then the Applicable Rate - Leverage shall be the number of basis points that would apply to Level VI of the table set forth in this definition above and it shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered. The Applicable Rate - Leverage
2


from the Effective Date until the delivery of the Compliance Certificate for the fiscal year ending December 31, 2020 shall be based on Level III.

If at any time the Financial Statements upon which the Applicable Rate - Leverage was determined were incorrect (whether based on a restatement, fraud or otherwise), the Borrower shall be required to retroactively pay (or, if applicable, the Lenders will be required to credit against the next interest payment(s) due from the Borrower hereunder), promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, automatically and without further action by the Administrative Agent, any Lender or any Issuing Bank), any additional amount that the Borrower would have been required to pay (or, if applicable, should not have paid) if such Financial Statements had been accurate at the time they were delivered.

During any applicable Sustainability Adjustment Period, the Applicable Rate - Leverage set forth in the above table for Revolving Loans shall be decreased by the Applicable Sustainability Adjustment (if any) in effect during such Sustainability Adjustment Period; provided that in no event shall the Applicable Rate be less than zero.

3


Applicable Rate Ratingmeans, for any day, with respect to each Type and Class of Loan, as the case may be, the number of basis points determined by the range into which the Debt Rating then falls in the table below:  
LevelDebt Rating (S&P / Fitch / Moody’s )Revolving Loan:Term Loan:
Eurodollar Loans and Daily Floating Rate Loans - Applicable Rate (bps)Base Rate Loans - Applicable Rate (bps)Revolving Credit Facility Fee Rate (bps)Eurodollar Loans - Applicable Rate (bps)Base Rate Loans - Applicable Rate (bps)
Level IGreater than or equal to A / A / A275.00.010.080.00.0
Level IIA- / A- / A377.50.012.585.00.0
Level IIIBBB+ / BBB+ / Baa182.50.015.090.00.0
Level IVBBB / BBB / Baa290.00.020.0100.00.0
Level VBBB- / BBB- / Baa3110.010.025.0125.025.0
Level VILower than BBB- by S&P and Baa3by Moody’s (or unrated by S&P and Moody’s)145.045.030.0165.065.0

If at any time when the Borrower has only two (2) Debt Ratings, and such Debt Ratings are split, then: (i) if the difference between such Debt Ratings is one ratings category (e.g. Baa2 by Moody’s and BBB- by S&P or Fitch), the higher of the Debt Ratings shall apply; and (ii) if the difference between such Debt Ratings is two or more ratings categories (e.g. Baa1 by Moody’s and BBB- by S&P or Fitch), the Debt Rating that is one category lower than the higher of the applicable Debt Ratings shall apply. If at any time the Borrower has three (3) Debt Ratings, and such Debt Ratings are split, then: (i) if the difference between the highest and the lowest such Debt Ratings is one ratings category (e.g. Baa2 by Moody’s and BBB- by S&P or Fitch), the highest of the Debt Ratings shall apply; and (iii) if the difference between such Debt Ratings is two or more ratings categories (e.g. Baa1 by Moody’s and BBB- by S&P or Fitch), the average of the two (2) highest Debt Ratings shall apply, provided that if such average is not a recognized rating category, then the second highest Debt Rating of the three shall apply.

During any period that the Borrower has no Debt Ratings or only one (1) Debt Rating from Fitch, the Applicable Rate - Rating and the Revolving Credit Facility Fee shall be based on a rating of less than BBB-/Baa3 in the above grid.

4


If a rating agency downgrade or discontinuance results in an increase in the Applicable Rate - Rating or the Revolving Credit Facility Fee and if such increase is reversed and the affected Applicable Rate - Rating or Revolving Credit Facility Fee is restored within ninety (90) days thereafter, at the Borrower’s request, the Borrower shall receive a credit against interest next due the Lenders equal to the interest differential on the Loans and the differential on the Revolving Credit Facility Fee during such period of downgrade or discontinuance.

If a rating agency upgrade results in a decrease in the Applicable Rate - Rating or Revolving Credit Facility Fee and if such upgrade is reversed and the affected Applicable Rate - Rating or Revolving Credit Facility Fee is restored within ninety (90) days thereafter, the Borrower shall be required to pay an amount to the Lenders equal to the interest differential on the Loans and the differential on the Revolving Credit Facility Fee during such period of upgrade.

During any applicable Sustainability Adjustment Period, the Applicable Rate - Rating set forth in the above table for Revolving Loans shall be decreased by the Applicable Sustainability Adjustment (if any) in effect during such Sustainability Adjustment Period; provided that in no event shall the Applicable Rate be less than zero.

Applicable Sustainability Adjustmentmeans, for any Sustainability Adjustment Period (beginning with the Sustainability Adjustment Period commencing in the fiscal year ending December 31, 2021), determined by reference to the Sustainability Rating Change or Sustainability Rating, as applicable, reported in the Compliance Certificate delivered by the Borrower pursuant to Section 5.01(c) for the immediately preceding fiscal year (a “Reference Year):

(a)    if (i) the Sustainability Rating Change for such Reference Year shall be equal to or greater than five percent (5.0%) or (ii) the Sustainability Rating for such Reference Year shall be equal to or greater than 96, the Applicable Sustainability Adjustment for such Sustainability Adjustment Period shall be a one basis point reduction in the Applicable Rates set forth in the Applicable Pricing Grid; and

(b)    if (i) the Sustainability Rating Change for such Reference Year shall be less than five percent (5.0%) or (ii) the Borrower shall have elected in its sole discretion to not report a Sustainability Rating Adjustment in the applicable Compliance Certificate, the Applicable Sustainability Adjustment for such Sustainability Adjustment Period shall be zero and there shall be no Applicable Sustainability Adjustment to the Applicable Rates set forth in the Applicable Pricing Grid; provided that this clause (b) shall not apply if the Sustainability Rating Change for such Reference Year cannot be determined due to the occurrence of any event described in clause (A), (B) or (C) of clause (i) of the following proviso;

provided, that, notwithstanding the foregoing,

(i)    if (A) GRESB fails or is no longer able to issue a Sustainability Rating, or otherwise delays the issuance of a Sustainability Rating without the consent of the Borrower, (B) GRESB notifies the Borrower, or makes an announcement to the effect, that it will no longer issue a Sustainability Rating, or (C) the scoring methodologies or other basis upon which the Sustainability Rating is determined shall materially change from the methodologies and basis for the determination of the Sustainability Rating in effect for the Reference Year ending December 31, 2019, then in any such case,

(x)    the Borrower or the Administrative Agent (acting on the instructions of the Required Lenders) may request that negotiations be entered into between the
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Borrower and the Sustainable Agent (for a period of no more than 30 consecutive days, or such longer period as may be mutually agreed by the Borrower and the Administrative Agent (with the consent of the Required Lenders)) with a view to agreeing on a substitute basis for determining a Sustainability Rating;

(y)    during any such negotiation period, the Applicable Sustainability Adjustment with respect to the applicable Sustainability Adjustment Period shall be determined pursuant to clause (a) or (b) of this definition above, based on the Sustainability Rating Change or Sustainability Rating, as applicable, that was in effect and applied immediately prior to the date on which such negotiation period commenced;

(z)    if no agreement can be reached between the Borrower and the Sustainable Agent during such negotiation period, unless otherwise agreed by the Borrower and the Required Lenders, the Applicable Sustainability Adjustment shall be determined pursuant to clause (b) of this definition above and shall apply to the Applicable Rates from and after the last day of such negotiation period;

(ii)    until the delivery of the Compliance Certificate delivered in respect of the Reference Year ending December 31, 2020 pursuant to Section 5.01(c), the Applicable Sustainability Adjustment shall be zero and there shall be no Applicable Sustainability Adjustment to the Applicable Rates set forth in the Applicable Pricing Grid; and

(iii)    the Borrower may elect to deliver to the Administrative Agent a revised Compliance Certificate for any Reference Year reflecting a revised Sustainability Rating Change or Sustainability Rating, as applicable, and commencing on the Business Day immediately following the date of delivery of such revised Compliance Certificate through the end of such Sustainability Adjustment Period, such revised Sustainability Rating Change or Sustainability Rating as applicable, shall apply.

Approved Counterparty means (a) the Administrative Agent, Lender or any Affiliate of the Administrative Agent or Lender at the time it entered into a Lender Hedge Agreement, in its capacity as a party thereto, in each case notwithstanding whether such Approved Counterparty ceases to be the Administrative Agent, Lender or an Affiliate of the Administrative Agent or Lender after entering into such Lender Hedge Agreement, and (b) any other Person from time to time approved in writing by the Administrative Agent; provided that, in the case of a Lender Hedge Agreement with a Person who is no longer a Lender (or an Affiliate of a Lender), such Person shall be considered an Approved Counterparty only through the stated termination date (without extension or renewal) of such Lender Hedge Agreement; provided further that for any of the foregoing to be included as a “Lender Hedge Agreement” on any date of determination by the Administrative Agent, the applicable Approved Counterparty (other than the Administrative Agent or an Affiliate of the Administrative Agent) must have delivered a Designation Notice to the Administrative Agent prior to such date of determination.

Approved Fund means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

Arranger” means each of the Joint Lead Arrangers/Joint Bookrunners and each of the Passive Joint Lead Arrangers.
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Assignment and Assumption means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.04), and accepted by the Administrative Agent, in substantially the form of Exhibit A or any other form (including electronic documentation generated by use of an electronic platform) approved by the Administrative Agent.

Authorized Officermeans any of the Senior Managing Director, Managing Director, Chief Executive Officer, President, Chief Financial Officer, Chief Operating Officer, Co-Chief Investment Officer, Executive Vice President, Senior Vice President, Vice President, Assistant Vice President, Treasurer, Assistant Treasurer, or General Counsel of a Loan Party or any entity authorized to act on behalf of such Loan Party, solely for purposes of the delivery of incumbency certificates pursuant to Section 4.01(c)(iii), the Secretary or Assistant Secretary of a Loan Party or entity authorized to act on behalf of such Loan Party, and, solely for purposes of notices given pursuant to Article II, any other officer or employee of the applicable Loan Party or entity authorized to act on behalf of such Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the applicable Loan Party or entity authorized to act on behalf of such Loan Party designated in or pursuant to an agreement between the applicable Loan Party or entity authorized to act on behalf of such Loan Party and the Administrative Agent. Any document delivered hereunder that is signed by an Authorized Officer of a Loan Party, or entity authorized to act on behalf of such Loan Party, shall be conclusively presumed to have been authorized by all necessary corporate, limited liability company, partnership and/or other action on the part of such Loan Party and such Authorized Officer shall be conclusively presumed to have acted on behalf of such Loan Party.

Availability Period means, with respect to the Revolving Facility, the period from and including the Effective Date to but excluding the earlier of the Revolving Maturity Date and the date of termination of the Revolving Commitments.

Available Revolving Commitment means, as to any Revolving Lender at any time, an amount equal to the excess, if any, of (a) such Lender’s Revolving Commitment then in effect minus (b) such Lender’s Revolving Credit Exposure then outstanding.

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 Affected Financial Institution.

Bail-In Legislation means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, 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).

Balance Sheet Cashmeans the Ownership Share of all cash and Cash Equivalents, including cash and Cash Equivalents held as collateral, in escrow in a bank account by a lender, creditor or counterparty and from like-kind exchanges, in each case, of the Consolidated Group.

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Bankruptcy Event means, with respect to any Person, such Person becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof, provided, further, that such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.

Base Ratemeans for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate,” and (c) the Eurodollar Rate determined in accordance with clause (b) of the definition thereof, plus 1.00%; and if Base Rate shall be less than zero, such rate shall be deemed zero. The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such prime rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change. If the Base Rate is being used as an alternate rate of interest pursuant to Section 2.14, then the Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above.

Base Rate Loan means a Loan that bears interest based on the Base Rate.

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

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

Boardmeans the Board of Governors of the Federal Reserve System of the United States of America.

Book Value means, with respect to any asset, the book value of such asset determined in accordance with GAAP, without giving effect to depreciation but after taking into account any impairments.

Borrower means Invitation Homes Operating Partnership LP, a Delaware limited partnership.

Borrower GP means Invitation Homes OP GP LLC, a Delaware limited liability company, if it is the general partner of the Borrower, or, if not, any Subsidiary of the Parent that is the general partner of the Borrower.

Borrowing means a Revolving Borrowing or a Term Borrowing, as the context may require.

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Borrowing Requestmeans a request by the Borrower for a Borrowing in accordance with Section 2.03, which shall be substantially in the form of Exhibit E hereto or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by an Authorized Officer of the Borrower.

Business Daymeans any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s office is located and, if such day relates to any Eurodollar Loan or Daily Floating Rate Loan, means any such day that is also a London Banking Day.

Capitalization Ratemeans six percent (6.0%).

Cash Equivalents means:

(a)    direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case maturing within one year from the date of acquisition thereof;

(b)    investments in commercial paper maturing within three hundred sixty-five (365) days from the date of acquisition thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or from Moody’s;

(c)    investments in certificates of deposit, banker’s acceptances and time deposits maturing within three hundred sixty-five (365) days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the laws of the United States of America or any State thereof which has a combined capital and surplus and undivided profits of not less than $500,000,000;

(d)    fully collateralized repurchase agreements with a term of not more than thirty (30) days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria described in clause (c) above; and

(e)    money market funds that (i) comply with the criteria set forth in Securities and Exchange Commission Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least $5,000,000,000.

Change in Control means: (a) for any reason whatsoever, the Parent or a Wholly-Owned Subsidiary of the Parent shall cease to Control, directly or indirectly, the Borrower GP; (b) for any reason whatsoever, any “person” or “group” (within the meaning of Rule 13d-5 of the Exchange Act as in effect on the Effective Date) shall beneficially own more than fifty percent (50%) of the then outstanding voting Equity Interests of the Parent; or (c) for any reason whatsoever, the Parent ceases to beneficially own, directly or indirectly, more than fifty percent (50%) of the total voting power of the then outstanding voting Equity Interests of the Borrower. For purposes of this definition, a person or persons or group or groups shall be deemed to have a majority of the total voting power of the then outstanding voting Equity Interests in a limited liability company, partnership, association or other business entity if such person or persons or group or groups shall be allocated a majority of limited liability company, partnership, association or other business entity gains or losses or shall be or Control the managing member, managing
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director or other governing body or general partner of such limited liability company, partnership, association or other business entity.

Change in Law means the occurrence after the date of this Agreement or, with respect to any Lender, such later date on which such Lender becomes a party to this Agreement (a) the adoption of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement; provided that, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith or in the implementation thereof and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall be deemed to be a “Change in Law”, regardless of the date enacted, adopted, issued or implemented.

Class, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans or Term Loans and, when used in reference to any Commitment, refers to whether such Commitment is a Revolving Commitment or Term Loan Commitment.

Code means the Internal Revenue Code of 1986, as amended.

Commitment means, with respect to each Lender, its Revolving Commitment and/or its Term Loan Commitment, as the context may require.

Commitment Fee Rate means, to the extent in effect as calculated on a daily basis, for any applicable period (a) 0.30% per annum, if the actual daily Revolving Commitment Utilization Percentage for such period is less than or equal to fifty percent (50%), and (b) 0.20% per annum, if the actual daily Revolving Commitment Utilization Percentage for such period is greater than fifty percent (50%).

Commodity Exchange Act means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).

Communications has the meaning assigned to such term in Section 9.01(d).

Compliance Certificate means a compliance certificate delivered in accordance with Section 5.01(c) in substantially the form attached hereto as Exhibit B.

Competitor shall mean (i) any competitor of the Borrower that is engaged in the business of owning, managing and/or operating residential real property, including single family homes in planned unit developments and individual single family townhomes and individual residential condominium units in a low-rise or high-rise condominium project, (ii) any REIT (other than (x) a REIT that invests primarily in mortgages and (y) which is not the Parent or a subsidiary thereof), or (iii) any Affiliate of either of the foregoing which is reasonably identifiable as an Affiliate solely based upon the name of such Affiliate; provided, however, that neither the Administrative Agent nor any Lender shall have any liability hereunder or otherwise in the event of an assignment pursuant to clause (iii) above to any Person not then actually known by the Administrative Agent or such Lender to be a “Competitor”.

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Connection Income Taxes means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

Condominium Property means any Owned Property that is an individual residential condominium unit in a low-rise or high-rise condominium project, but not a single family home.

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

Consolidated Party means a member of the Consolidated Group.

Contractual Obligationmeans, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

Control means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.

Covered Entity has the meaning specified in Section 9.18(b).

Credit Party means the Administrative Agent, any Issuing Bank, or any other Lender.

Daily Floating Rate Loan means a Loan that bears interest based on the LIBOR Daily Floating Rate.

Debt Rating means, as of any date of determination, the rating as determined by S&P, Moody’s and/or Fitch of the Borrower’s non-credit enhanced, senior unsecured long-term debt.

Defaultmeans any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.

Defaulting Lendermeans, subject to Section 2.20, any Lender that (a) has failed, within two (2) Business Days of the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any portion of its participations in Letters of Credit or (iii) pay over to any Credit Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) has notified the Borrower or any Credit Party in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within two (2) Business Days after request by a Credit Party, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective Loans and participations in then outstanding Letters of Credit under this Agreement; provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon such Credit Party’s receipt of such certification in form and substance satisfactory to it and the
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Administrative Agent, or (d) has, or has a direct or indirect parent company that has, (i) become the subject of any Bankruptcy Event or (ii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States 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 under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.20) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Borrower, each Issuing Bank, and each other Lender promptly following such determination.

Designated Jurisdiction means any country, region or territory to the extent that such country, region or territory itself is the subject of any Sanctions Laws and Regulations.

Designated Persons means a person or entity (a) listed in the annex to, or otherwise subject to the provisions of, any Sanctions Laws and Regulations-related 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 fifty percent (50%) or greater ownership interest or that is otherwise controlled by an SDN.

Designation Notice means a notice from any Lender or an Affiliate of a Lender substantially in the form of Exhibit I.

Development Property means a Real Estate Asset (a) the primary purpose of which is to be leased in the ordinary course of business upon completion to end users, (b) on which construction, redevelopment or material rehabilitation of material improvements has commenced and is continuing to be performed and (c) that is classified as “construction in progress” (or a similar term) on the Borrower’s balance sheet.

Direct Owner has the meaning set forth in the definition of Unencumbered Asset.

Disclosed Matters means the actions, suits and proceedings and the environmental matters disclosed in Schedule 3.06, as required pursuant to Section 3.06.

Disqualified Institution means any Person that is specifically identified by name on a written list that has been delivered to the Administrative Agent on or before the Effective Date, which list may be updated from time to time after the Effective Date upon the Borrower delivering an updated list to the Administrative Agent; provided, however, that no such update shall apply retroactively to any Person that already acquired and continues to hold (or has and remains committed to acquire, without giving retroactive effect to any such commitment) an assignment or participation interest in any Commitment, Revolving Credit Exposure or Term Loan Exposure; provided, further, however, that any such Person that holds (or has and remains committed to acquire, without giving retroactive effect to any such commitment) an assignment or participation interest shall not be permitted to acquire an additional
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assignment, participation or other interest in any Commitment, Revolving Credit Exposure or Term Loan Exposure. The list of Disqualified Institutions shall be made available to a Lender upon reasonable request to the Administrative Agent in connection with a proposed assignment under Section 9.04.

Dividing Person has the meaning assigned to it in the definition of “Division.”

Division means the division of the assets, liabilities and/or obligations of a Person (the
Dividing Person) among two or more Persons (whether pursuant to a “plan of division” or similar arrangement), which may or may not include the Dividing Person and pursuant to which the Dividing Person may or may not survive.

Division Successor means any Person that, upon the consummation of a Division of a Dividing Person, holds all or any portion of the assets, liabilities and/or obligations previously held by such Dividing Person immediately prior to the consummation of such Division. A Dividing Person which retains any of its assets, liabilities and/or obligations after a Division shall be deemed a Division Successor upon the occurrence of such Division.

dollars or “$” refers to lawful money of the United States of America.

DQ List has the meaning assigned to it in Section 9.04(h)(iv).

EBITDA means, with respect to any Person for any period and without duplication, the sum of: (a) net income (loss) of such Person for such period determined on a consolidated basis excluding the following (but only to the extent included in determining net income (loss) for such period): (i) depreciation and amortization; (ii) interest expense; (iii) income tax expense; (iv) extraordinary or nonrecurring items, including without limitation, gains and losses from the sale of assets; (v) non-cash charges (other than non-cash charges that constitute an accrual of a reserve for future cash payments) and non-cash gains (other than any non-cash gain to the extent it represents the reversal of an accrual or reserve for a potential cash item that reduced net income in any prior period); (vi) expenses of opening and marketing promotions; and (vii) equity in net income (loss) of its Investment Affiliates; plus (b) such Person’s Ownership Share of EBITDA of its Investment Affiliates. EBITDA of any Person shall be adjusted to remove any impact from straight line rent leveling adjustments required under GAAP and amortization of intangibles pursuant to FASB ASC 805. For purposes of this definition, nonrecurring items shall be deemed to include (v) gains and losses on early extinguishment of Indebtedness, (w) severance and other restructuring charges, (x) transaction costs of acquisitions, dispositions, capital markets offerings, debt financings and amendments thereto not permitted to be capitalized pursuant to GAAP (including, without limitation, any portion of the purchase price payable with respect to an acquisition that is not permitted to be capitalized pursuant to GAAP), (y) impairment losses and (z) equity based, non-cash compensation.

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 and subject to the Bail-In Legislation, (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.
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EEA Resolution Authority means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

Effective Date means December 8, 2020, the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section 9.02).

Electronic Recordhas the meaning specified in Section 9.06(b).

Electronic Signaturemeans an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a person with the intent to sign, authenticate or accept such contract or record. For the avoidance of doubt, an executed counterpart of a signature page delivered by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page shall not be considered an Electronic Signature.

Electronic Systemmeans any electronic system, including IntraLinks, Syndtrak, ClearPar, or a substantially similar electronic transmission system and any other Internet or extranet-based site, whether such electronic system is owned, operated or hosted by the Administrative Agent, any Issuing Bank and any of its respective Related Parties or any other Person, providing for access to data protected by passcodes or other security systems.

Eligible Assignee means (i) a Lender, (ii) an Affiliate of a Lender, (iii) an Approved Fund and (iv) any other Person (other than a natural person or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, one or more natural persons) approved in accordance with the provisions of Section 9.04(b). For the avoidance of doubt, no Ineligible Institution is an Eligible Assignee.

Environmental Laws means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the management, release or threatened release of any Hazardous Material or to health and safety matters.

Environmental Liability means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

Equity Interests means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any such equity interest.

ERISAmeans the Employee Retirement Income Security Act of 1974, as amended from time to time.
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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 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(m) of the Code.

ERISA Event means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30 day notice period is waived); (b) any failure to meet the minimum funding standards of Section 303 of ERISA or Section 430 of the Code; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) 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 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 a determination that a Multiemployer Plan is, or is expected to be, in endangered or critical status, within the meaning of Section 432 of the Code or section 305 of ERISA, or insolvent, within the meaning of Section 4245 of ERISA.

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

Eurodollar Loan means a Loan that bears interest at a rate based on clause (a) of the definition of “Eurodollar Rate.”

Eurodollar Rate means:

(a)    for any interest period with respect to a Eurodollar Loan, the rate per annum equal to the London Interbank Offered Rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate) for dollars for a period equal in length to such interest period (LIBOR) as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; and

(b)    for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to LIBOR, at or about 11:00 a.m., London time determined two London Banking Days prior to such date for dollar deposits with a term of one month commencing that day; and

(c)    if the Eurodollar Rate shall be less than zero, such rate shall be deemed zero for purposes of the Loan Documents.

Event of Default has the meaning assigned to such term in Section 7.01.

Excluded Swap Obligation means, with respect to any Guarantor, (a) any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guaranty thereof) is or becomes
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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) (i) by virtue of such Guarantor’s failure to constitute an “eligible contract participant,” as defined in the Commodity Exchange Act and the regulations thereunder (determined after giving effect to any applicable agreement for the benefit of such Guarantor and any and all applicable guarantees of such Guarantor’s Swap Obligations by other Loan Parties), at the time the guarantee of (or grant of such security interest by, as applicable) such Guarantor becomes or would become effective with respect to such Swap Obligation or (ii) in the case of a Swap Obligation that is subject to a clearing requirement pursuant to section 2(h) of the Commodity Exchange Act, because such Guarantor is a “financial entity,” as defined in section 2(h)(7)(C) of the Commodity Exchange Act, at the time the guarantee of (or grant of such security interest by, as applicable) such Guarantor becomes or would become effective with respect to such Swap Obligation or (b) any other Swap Obligation designated as an “Excluded Swap Obligation” of such Guarantor as specified in any agreement between the relevant Loan Parties and the Approved Counterparty applicable to such Swap Obligations. 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 the Swap for which such guarantee or security interest is or becomes excluded in accordance with the first sentence of this definition.

Excluded Taxesmeans any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. Federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 2.19(b)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.17, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.17(f) or (g), and (d) any withholding Taxes imposed under FATCA.

Executive Order means an executive order issued by the President of the United States of America.

Existing Credit Agreement has the meaning specified in the second introductory paragraph.

Existing Letter of Credit means a “Letter of Credit” issued pursuant to the terms of, and as defined in, the Existing Credit Agreement and outstanding on the Effective Date and described on Schedule 1.01.

Existing Notes means “Notes” as defined in the Existing Credit Agreement.

Facility means each of the Term Loan Facility and the Revolving Facility (and collectively, the “Facilities”).

FATCAmeans Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to
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comply with), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b)(1) of the Code and any intergovernmental agreement (or related legislation or official administrative rules or practices) implementing the foregoing.

Federal Funds Rate means, for any day, the rate per annum calculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions by depository institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective rate; provided that if the Federal Funds Rate as so determined would be less than zero, such rate shall be deemed to be zero for purposes of the Loan Documents.

Final Maturity Datemeans January 31, 2026.

Financial Covenants means the financial covenants set forth in Section 6.01(a).

Financial Officermeans the chief financial officer, the principal accounting officer or the executive vice president, corporate strategy & finance of the Borrower or the Borrower GP.

Financial Statements means the financial statements to be furnished pursuant to Sections 5.01(a) and (b).

Financing Lease Obligation means, at any time any determination thereof is to be made, the amount of the liability in respect of a Financing Lease; provided, that, any obligations of the Borrower or its Subsidiaries either existing on the Effective Date or created prior to any re-characterization described below (i) that were not included on the consolidated balance sheet of the Borrower as financing or capital lease obligations and (ii) that are subsequently re-characterized as financing or capital lease obligations or indebtedness due to a change in accounting treatment or otherwise, shall for all purposes under this Agreement (including, without limitation, the calculation of Net Operating Income and EBITDA) not be treated as financing or capital lease obligations, Financing Lease Obligations or Indebtedness.

Financing Leases means all leases that have been or are required to be, in accordance with GAAP, recorded as a financing or capital leases (and, for the avoidance of doubt, not a straight-line or operating lease) on both the balance sheet and income statement for financial reporting purposes in accordance with GAAP; provided, that, for all purposes hereunder the amount of obligations under any Financing Lease shall be the amount thereof accounted for as a liability on a balance sheet in accordance with GAAP.

First Extended Revolving Maturity Date has the meaning specified in Section 2.21(a).

First Extended Term Loan Maturity Date has the meaning specified in Section 2.21(b).

Fitch means Fitch, Inc.

Fixed Charge Coverage Ratio has the meaning given to such term in Section 6.01(a)(iv).

Fixed Chargesmeans, for any period, the sum of (i) Total Interest Expense, (ii) all regularly scheduled principal payments due on account of Total Outstanding Indebtedness (excluding balloon, bullet or similar payments of principal due upon the stated maturity of Indebtedness), (iii) all cash dividends payable on account of preferred stock or preferred operating partnership units of the Borrower
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or any other Person in the Consolidated Group, and (iv) the Ownership Share of all cash dividends payable on account of preferred stock or preferred operating partnership units of any Investment Affiliate.

Foreign Corrupt Practices Act means the Foreign Corrupt Practices Act of 1977 (15 U.S.C. § 78dd-1, et seq.), as amended from time to time, together with any successor statute thereto.

Foreign Lender means a Lender that is not a U.S. Person.

GAAPmeans generally accepted accounting principles in the United States of America, as in effect from time to time; provided, however, that (i) if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change in accounting principles or change as a result of the adoption or modification of accounting policies (including, but not limited to, the impact of Accounting Standards Update 2016-12, Revenue from Contracts with Customers (Topic 606) or similar revenue recognition policies or any change in the methodology of calculating reserves for returns, rebates and other chargebacks) occurring after the Effective Date in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then (x) such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith and (y) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP, (ii) GAAP shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under FASB ASC Topic 825 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Borrower or any of its Subsidiaries at “fair value,” as defined therein, and Indebtedness shall be measured at the aggregate principal amount thereof, and (iii) the accounting for operating leases and financing or capital leases under GAAP as in effect on the Effective Date (including, without limitation, Accounting Standards Codification 840) shall apply for the purposes of determining compliance with the provisions of this Agreement, including the definition of Financing Leases and obligations in respect thereof on a basis consistent with that reflected in the audited financial statements referred to in Section 3.04, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above.

Governmental Authority means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

GRESB means GRESB B.V., a wholly owned subsidiary of Green Business Certification Inc., a non-profit corporation incorporated in the United States under the laws of the District of Columbia.

guarantee of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other payment obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other payment obligation
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or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other payment obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or payment obligation; provided, that the term guarantee shall not include endorsements for collection or deposit in the ordinary course of business or customary and reasonable indemnity obligations in effect on the Effective Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than such payment obligations with respect to Indebtedness). The amount of any guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary payment obligation, or portion thereof, in respect of which such guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.

Guarantiesmeans, collectively, the Subsidiary Guaranty and, if required, the Parent Guaranty from and after the date it is required to be executed and delivered pursuant to Section 5.09(e) (and each individually, a “Guaranty”).

Guarantorsmeans (i) each Subsidiary Guarantor, and (ii) from and after the date it is required to execute and deliver the Parent Guaranty pursuant to Section 5.09(e), each Parent Entity.

Hazardous Materials means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.

HOA means a homeowners or condominium association, board, corporation or similar entity with authority to create a Lien on an Owned Property as a result of the non-payment of HOA Fees that are payable with respect to such Owned Property.

HOA Fees means all homeowner’s and condominium dues, fees, assessments and impositions, and any other charges levied or assessed or imposed against an Owned Property, or any part thereof, by an HOA.

Impacted Loanshas the meaning specified in Section 2.14(a).

Increased Amount Datehas the meaning assigned to such term in Section 2.04.

Incremental Facilities has the meaning assigned to such term in Section 2.04.

Incremental Revolving Lender has the meaning assigned to such term in Section 2.04.

Incremental Term Facility has the meaning assigned to such term in Section 2.04.

Incremental Term Loan has the meaning assigned to such term in Section 2.04.

Incremental Term Loan Lender has the meaning assigned to such term in Section 2.04.

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Indebtednessof any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person upon which interest charges are customarily paid, (d) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (e) all obligations of such Person in respect of the deferred purchase price of property or services (excluding current accounts payable incurred in the ordinary course of business and accruals for payroll and other liabilities accrued in the ordinary course), (f) all Indebtedness of others 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 owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (g) all guarantees by such Person of Indebtedness of others, (h) all Financing Lease Obligations of such Person, (i) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty and (j) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, in each case, if and to the extent that the foregoing would constitute indebtedness or a liability in accordance with GAAP; provided, that Indebtedness of any direct or indirect parent of the Borrower appearing on the balance sheet of the Borrower solely by reason of push-down accounting under GAAP shall be excluded. The Indebtedness of any Person shall (A) include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is personally liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except any Indebtedness to the extent that any such Person is not personally liable therefore pursuant to the terms of any such Indebtedness, and (B) exclude obligations under or in respect of Non-Financing Lease Obligations (to the extent they are treated as operating leases in the most recent financial statements in existence on the Effective Date), straight-line leases, operating leases or sale lease-back transactions (except any resulting Financing Lease Obligations).

For all purposes hereof, the Indebtedness of any Person shall in the case of the Borrower and its Subsidiaries exclude all intercompany indebtedness made in the ordinary course between Consolidated Parties.

Indemnified Taxesmeans (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.

Ineligible Institution means (a) a natural person, (b) a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of one or more natural persons, (c) each Defaulting Lender, (d) the Borrower and each of its Affiliates, (e) each Competitor and (f) each Disqualified Institution.

Initial Revolving Maturity Date has the meaning set forth in the definition of “Revolving Maturity Date.”

Initial Term Loan has the meaning assigned to such term in Section 2.01(b).

Initial Term Loan Maturity Date has the meaning set forth in the definition of “Term Loan Maturity Date.”

Interest Payment Date means (a) with respect to any Base Rate Loan or any Daily Floating Rate Loan, the last day of each of March, June, September and December and the Maturity Date of the Facility under which such Loan was made, and (b) with respect to any Eurodollar Loan, the last day of the
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Interest Period applicable to the Borrowing of which such Loan is a part and the Maturity Date of the Facility under which such Loan was made; provided that, in the case of a Eurodollar Loan with an Interest Period of more than three (3) months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three (3) months’ duration after the first day of such Interest Period shall also be Interest Payment Dates.

Interest Periodmeans, with respect to each Eurodollar Loan, the period commencing on the date such Eurodollar Loan is disbursed or converted or continued as a Eurodollar Loan and ending on the numerically corresponding day in the calendar month that is one (1), two (2), three (3), or six (6) months thereafter, (in each case subject to availability) as selected by the Borrower in its Borrowing Request or such other period that is twelve (12) months or less requested by the Borrower and consented to by all the Lenders; provided, that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless, in the case of a Eurodollar Loan only, such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, (ii) any Interest Period pertaining to a Eurodollar Loan that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period, and (iii) no Interest Period shall extend beyond the then applicable Maturity Date for such Facility.

Investment Affiliatemeans any Person in which the Consolidated Group, directly or indirectly, owns any Equity Interests, whose financial results are not consolidated under GAAP with the financial results of the Consolidated Group.

Investment Grade Election means the election by the Borrower made by written notice to the Administrative Agent at any time that the Borrower has an Investment Grade Rating, irrevocably electing that the Applicable Rate on all Loans and Borrowings under the Loan Documents shall be determined based on the Applicable Rate - Rating.

Investment Grade Ratingmeans a Debt Rating of the Borrower of BBB- or better from S&P or Baa3 or better from Moody’s.

Investment Grade Release has the meaning specified in Section 5.09(c).

Involuntary Proceeding has the meaning assigned to such term in Section 7.01(h).

IRS means the United States Internal Revenue Service.

ISDA Definitionsmeans the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.

ISP means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).

Issuing Bank means each of Bank of America, N.A. and Wells Fargo Bank, National Association, each in its capacity as an issuer of Letters of Credit hereunder, and their respective
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successors in such capacity as provided in Section 2.06(i). Each Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of adequate creditworthiness of such Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate. The Borrower, the Administrative Agent and any Lender may agree that any Lender may issue Letters of Credit hereunder, in which case the term “Issuing Bank” shall include such Lender with respect to the Letters of Credit issued by such Lender, and each reference to “Issuing Bank” shall mean the applicable Issuing Bank or all Issuing Banks, as the context may require.

Joint Lead Arrangers/Joint Bookrunners means BofA Securities, Inc., Wells Fargo Securities, LLC, BBVA USA, Deutsche Bank Securities Inc. and JPMorgan Chase Bank, N.A., as Joint Lead Arrangers/Joint Bookrunners under this Agreement.

LC Commitment” means, with respect to each Issuing Bank, the commitment of such Issuing Bank to issue Letters of Credit hereunder. The initial amount of each Issuing Bank’s LC Commitment is set forth on Schedule 2.01, or if an Issuing Bank has entered into an Assignment and Assumption or has otherwise assumed an LC Commitment after the Effective Date, the amount set forth for such Issuing Bank as its LC Commitment in the Register maintained by the Administrative Agent. The LC Commitment of an Issuing Bank may be modified from time to time by agreement between such Issuing Bank and the Borrower, and notified to the Administrative Agent.

LC Disbursementmeans a payment made by an Issuing Bank pursuant to a Letter of Credit.

LC Exposuremeans, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any Lender at any time shall be its Revolving Percentage of the total LC Exposure at such time.

LC Issuing Bank Exposure means, at any time with respect to a given Issuing Bank, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit issued by such Issuing Bank at such time plus (b) the aggregate amount of all LC Disbursements under Letters of Credit issued by such Issuing Bank that have not yet been reimbursed by or on behalf of the Borrower at such time.

Lender Hedge Agreementsmeans any Swap Agreement that is entered into by and between the Borrower or any Subsidiary and any Approved Counterparty and designated in writing by such Approved Counterparty to the Administrative Agent as a “Lender Hedge Agreement” under this Agreement.

Lender Parentmeans, with respect to any Lender, any Person as to which such Lender is, directly or indirectly, a subsidiary.

Lenders means the Persons listed on Schedule 2.01 and any other Person that shall have become a party hereto pursuant to Section 2.04 or an Assignment and Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption. Unless the context otherwise requires, the term “Lenders” includes each Issuing Bank.

Letter of Credit means any standby letter of credit issued pursuant to this Agreement and shall include the Existing Letters of Credit. The foregoing shall not constitute a commitment by any Issuing Bank to issue any commercial or trade letter of credit.

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Letter of Credit Report means a report of outstanding Letters of Credit and information related thereto in form set forth as Exhibit H attached hereto.

LIBOR has the meaning specified in the definition of Eurodollar Rate.

LIBOR Daily Floating Rate means, for any day, a fluctuating rate of interest per annum equal to LIBOR, or a comparable or successor rate, which rate is approved by the Administrative Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time), at or about 11:00 a.m., London time, two (2) London Banking Days prior to such day, for dollar deposits with a term of one (1) month commencing that day; provided that to the extent a comparable or successor rate is approved by the Administrative Agent in connection herewith, the approved rate will be applied in a manner consistent with market practice; provided, further, that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate will be applied in a manner as otherwise reasonably determined by the Administrative Agent; provided, further, if the LIBOR Daily Floating Rate shall be less than zero, such rate shall be deemed zero for purposes of the Loan Documents.

LIBOR Replacement Datehas the meaning specified in Section 2.14(c).

LIBOR Screen Ratemeans the LIBOR quote on the applicable screen page the Administrative Agent designates to determine LIBOR (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time).

LIBOR Successor Rate has the meaning specified in Section 2.14(c).

LIBOR Successor Rate Conforming Changes means, with respect to any proposed LIBOR Successor Rate, any conforming changes to the definition of Base Rate, LIBOR Daily Floating Rate, Interest Period, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definition of Business Day, timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback periods) as may be appropriate, in the discretion of the Administrative Agent, to reflect the adoption and implementation of such LIBOR Successor Rate and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such LIBOR Successor Rate exists, in such other manner of administration as the Administrative Agent determines is reasonably necessary in connection with the administration of this Agreement and any other Loan Document).

Lienmeans, with respect to any asset, any mortgage, deed of trust, lien (statutory or otherwise), pledge, hypothecation, easement, restrictive covenant, preference, assignment, security interest, or any other encumbrance, charge or transfer of, or any agreement to enter into or create any of the foregoing, on or affecting all or any portion of such asset or any interest therein, or any direct or indirect interest in Borrower or any Loan Party, including any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, the filing of any financing statement, and mechanic’s, materialmen’s and other similar liens and encumbrances, but excluding any UCC financing statement filed as a fixture filing, mortgage, deed of trust or deed to secure debt, in each case, in respect of third party indebtedness which has been repaid in full and all commitments, security interests and guarantees in connection therewith which have been terminated and released, for no more than seventy-five (75) days after such repayment.
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Loan Documentsmeans this Agreement, including, without limitation, schedules and exhibits hereto, the Notes (if any), the Guaranties, and any other agreements entered into in connection herewith or therewith, including any amendments, modifications or supplements hereto or thereto or waivers hereof or thereof.

Loan Partiesmeans the Borrower and the Guarantors, and after the Borrower obtains an Investment Grade Release shall also include each Direct Owner of each Unencumbered Asset (regardless of whether such Person is a Guarantor).

Loansmeans the loans made by the Lenders to the Borrower pursuant to this Agreement.

London Banking Day means any day on which dealings in dollar deposits are conducted by and between banks in the London interbank eurodollar market.

Management Fees” means with respect to any Person, all fees and income earned by such Person for the applicable period in connection with the management, development, and operations of a property including, without limitation, all property management fees, asset management fees, leasing and sales commissions, development fees, construction management fees, tenant coordination fees, legal fees, accounting fees, tax preparation fees, consulting fees, and financing or debt placement fees.

Material Adverse Effectmeans (a) a material adverse effect on the business, operations, properties or condition (financial or otherwise) of the Loan Parties and their respective Subsidiaries taken as a whole, (b) a material impairment of the ability of the Loan Parties, taken as a whole, to perform any of their obligations under any Loan Document or (c) a material adverse effect on the validity or enforceability of any of the Loan Documents.

Material Indebtedness means Indebtedness (other than the Loans and Letters of Credit and Nonrecourse Indebtedness (including, but not limited to, term loan and/or term securitization transactions that are conducted pursuant to either a Rule 144A or registered public offering or similar form of securitization transaction so long as any such transaction satisfies the requirements of Nonrecourse Indebtedness)), or obligations in respect of one or more Swap Agreements, of any one or more of the Borrower and the Subsidiaries in an aggregate principal amount exceeding $100,000,000. For purposes of determining Material Indebtedness, the “principal amount” of the obligations of the Borrower or any Subsidiary in respect of any Swap Agreement at any time shall be the Swap Termination Value thereof as of such date.

Material Subsidiariesmeans, as of any date of determination, each Subsidiary or any group of Subsidiaries which contributed greater than $250,000,000 of Total Asset Value as of such date; provided that Material Subsidiaries shall not include any Subsidiary that is a borrower of Nonrecourse Indebtedness and is not a borrower, guarantor or otherwise obligated on any Recourse Indebtedness. A group of Subsidiaries each of which is not otherwise a Material Subsidiary (defined in the foregoing sentence) shall collectively constitute a Material Subsidiary if the group taken as a single entity satisfies the requirements of the foregoing sentence.

Maturity Date means the Revolving Maturity Date and/or the Term Loan Maturity Date, as the context may require.

Moody’s means Moody’s Investors Service, Inc.
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MSA means a metropolitan statistical area, as defined by the United States Office of Management and Budget (“OMB”); provided, that if the OMB modifies the definition of any metropolitan statistical area (whether by consolidating, dividing or modifying the boundaries of any metropolitan statistical area, or otherwise), the Administrative Agent, acting reasonably and in consultation with Borrower, shall modify the definition of MSA, any specific MSA(s), and/or the associated criteria and requirements such that the commercial agreement in respect thereof as at the Effective Date is maintained following, and notwithstanding, such modification by the OMB.

Multiemployer Planmeans a multiemployer plan as defined in Section 4001(a)(3) of ERISA.

Multi-Family Rental Property means any Owned Property that is not a single family home.

Negative Pledge means, with respect to a given asset, a provision of any document, instrument or agreement (including any charter, by-laws or other organizational documents), other than this Agreement or any other Loan Document, that prohibits, restricts or limits, or purports to prohibit, restrict or limit, the creation or assumption of any Lien on any assets of a Person as security for the Indebtedness of such Person or any other Person, or entitles another Person to obtain or claim the benefit of a Lien on any assets of such Person; provided, however, that (i) an agreement that conditions a Person’s ability to encumber its assets upon the maintenance of one or more specified ratios that limit such Person’s ability to encumber its assets but that do not generally prohibit the encumbrance of its assets, or the encumbrance of specific assets, (ii) an agreement relating to Unsecured Indebtedness containing restrictions substantially similar to, or taken as a whole, not more restrictive than, the restrictions contained in the Loan Documents (as determined by the Borrower in good faith), (iii) Permitted Transfer Restrictions and (iv) Permitted Sale Restrictions, in each case, shall not constitute a Negative Pledge.

Net Operating Income” means, with respect to any Real Estate Asset for any period, as determined in accordance with GAAP, an amount equal to (i) the Ownership Share of the rental income and other revenues from the operation of such Real Estate Asset, including from straight-lined rent and amortization of above or below market leases, minus (ii) actual third party Management Fees with respect to such Real Estate Asset, minus (iii) the Ownership Share of all expenses and charges incurred in connection with the operation and maintenance of such Real Estate Asset (including, without limitation, real estate taxes, insurance, homeowner association fees (when applicable), market-level personnel expenses, repairs and maintenance, leasing costs and marketing costs); but, for the avoidance of doubt, excluding the payment of or provision for debt service charges, interest expenses, income taxes, capital expenses, general and administrative expenses, non-cash compensation expenses, impairment and other similar expenses, acquisition costs, gain on sales of property, interest income and other miscellaneous income and expenses, depreciation and amortization expenses, and other non-cash expenses.

New Lender Joinder Agreementhas the meaning assigned to such term in Section 2.04.

New Term Loan has the meaning assigned to such term in Section 2.04.

Nonrecourse Indebtedness means, with respect to a Person, Indebtedness for borrowed money (or the portion thereof) in respect of which recourse for payment (except for customary exceptions for fraud, misapplication of funds, misrepresentation, waste, environmental indemnities, prohibited transfers, violation of “special purpose entity” covenants, bankruptcy, insolvency, receivership or other similar events and other similar exceptions to recourse liability until a claim is made with respect thereto, and then in the event of any such claim, only a portion of such Indebtedness in an amount equal to the amount
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of such claim shall no longer constitute “Nonrecourse Indebtedness for the period that such portion is subject to such claim) is contractually limited to specific assets of such Person encumbered by a Lien securing such Indebtedness.

Non-Financing Lease Obligationmeans a lease obligation that is not required to be accounted for as a financing or capital lease on both the balance sheet and the income statement for financial reporting purposes in accordance with GAAP. For the avoidance of doubt, a straight-line or operating lease shall be considered a Non-Financing Lease Obligation.

Non-Wholly-Owned Subsidiary means any consolidated subsidiary of the Borrower which is not a Wholly-Owned Subsidiary of the Borrower.

Notes means each of the promissory notes, if any, made by the Borrower to evidence the Obligations in accordance with Section 2.10(e).

Notice of Loan Prepaymentmeans a notice of prepayment with respect to a Loan, which shall be substantially in the form of Exhibit G or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by an Authorized Officer of the Borrower.

Obligations means the unpaid principal of and interest on (including interest accruing after the maturity of the Loans and LC Disbursements and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) the Loans and all other obligations and liabilities of the Borrower to the Administrative Agent or to any Lender and obligations of the Borrower or any Subsidiary arising under any Lender Hedge Agreement, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, any other Loan Document, the Letters of Credit, or any other document made, delivered or given in connection herewith or therewith, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses (including all fees, charges and disbursements of counsel to the Administrative Agent or to any Lender that are required to be paid by the Borrower pursuant hereto) or otherwise. Notwithstanding the foregoing, the obligations of the Borrower or any Subsidiary under any Lender Hedge Agreement shall be guaranteed pursuant to the Guaranty only to the extent that, and for so long as, the other Obligations are so guaranteed. Notwithstanding the foregoing, the Obligations of any Guarantor shall in no event include any Excluded Swap Obligations of such Guarantor.

Occupied Owned Property means, at any time, each Owned Property that is not a Vacant Owned Property.

OFACmeans Office of Foreign Assets Control of the United States Department of the Treasury.

Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in
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any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

Other Taxes means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.19).

Owned Property means, at any time, any Real Estate Asset (i) that is a residential real property owned in fee simple and located in a state within the United States of America or in the District of Columbia and (ii) no material part of which (A) has been damaged by fire or other casualty (unless damage has been or will be diligently repaired) or (B) has been condemned (unless the remaining portion of such property has been restored).

Ownership Share means (a) with respect to any Consolidated Party other than a Non-Wholly-Owned Subsidiary, one hundred percent (100%), (b) with respect to any Non-Wholly-Owned Subsidiary, the percentage of the issued and outstanding Equity Interests in such Non-Wholly-Owned Subsidiary held by the Consolidated Group, and (c) with respect to any Investment Affiliate, the percentage of the total Equity Interests held by the Consolidated Group in the aggregate, in such Investment Affiliate determined by calculating the greater of (i) the percentage of the issued and outstanding Equity Interests in such Investment Affiliate held by the Consolidated Group in the aggregate and (ii) the percentage of the total Book 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 and other claims that would have priority in such a liquidation of such Investment Affiliate.

Parent means Invitation Homes Inc., a Maryland corporation.

Parent Entities means, collectively, the Parent and each Subsidiary thereof that owns an Equity Interest in the Borrower, and Parent Entitymeans any of them individually.

Parent Guaranty means the Guaranty to be entered into if and when required pursuant to Section 5.09(e), from the Parent Entities, in favor of the Administrative Agent, for the benefit of the Lenders, in substantially the form attached hereto as Exhibit F.

Parent Guaranty Eventmeans the occurrence of any of the following: (i) one or more of the Parent Entities at any time directly owns properties or assets (other than (A) Equity Interests in the Borrower or an intermediate holding company or general partner of the Borrower, or (B) cash that is promptly distributed to equity holders of the Parent or (C) properties or assets that are promptly contributed to the Borrower) that, in the aggregate for all such Parent Entities, equals more than two percent (2.00%) of the total assets of the Consolidated Group; (ii) one or more of the Parent Entities issues any Indebtedness or guarantees any Indebtedness, which Indebtedness, together with all other Indebtedness issued or guaranteed by such Parent Entities in the aggregate, is in excess of $50,000,000; provided, for the avoidance of doubt, that any payment obligation of a Parent Entity existing on the Effective Date in respect of the 3.50% Convertible Senior Notes Due 2022 of IH Merger Sub, LLC will not be deemed to constitute Indebtedness of a Parent Entity for purposes of this definition to the extent that such Parent Entity holds in respect thereof a back-to-back obligation from the Borrower with economic terms that materially mirror those of such Parent Entity’s obligation; or (iii) the Parent ceases for any reason to be a REIT.
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Pari Passu Obligations means Unsecured Indebtedness (exclusive of Indebtedness under the Loan Documents) of a Loan Party owing to a Person that is not a Consolidated Party or a Person Controlled (directly or indirectly) by an Affiliate of any Consolidated Party.

Participant” has the meaning assigned to such term in Section 9.04(c).

Participant Register” has the meaning assigned to such term in Section 9.04(c).

Passive Joint Lead Arrangers means each of Citibank, N.A., Credit Suisse AG, New York Branch, Goldman Sachs Bank USA, Keybanc Capital Markets, Inc., Mizuho Bank, Ltd., Morgan Stanley Senior Funding, Inc. and RBC Capital Markets as Passive Joint Lead Arrangers under this Agreement.

PBGC means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.

Permitted Encumbrances means:

(a)    Liens imposed by law for Taxes, impositions, HOA Fees, charges, liens or fees levied or assessed or imposed against a property by a Governmental Authority in connection with code violations, and any other charges levied or assessed or imposed against a property or any part thereof, in each such case, that are not yet delinquent or are being contested in compliance with Section 5.04;

(b)    Statutory Liens of carriers, warehousemen, mechanics, materialmen, repairmen and other like Liens imposed by law, (i) securing obligations that are not overdue by more than sixty (60) days after which the Borrower receives notice, (ii) are being contested or bonded over in compliance with Section 5.04, (iii) relate to tenant improvements and with respect to which the Borrower or applicable Subsidiary is diligently enforcing its rights under a tenant lease to have removed by the applicable tenant, or (iv) if not resolved in favor of the Borrower or applicable Subsidiary, is not reasonably likely to result in a material impairment of the value of the asset subject to such Lien;

(c)    pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and other social security laws or regulations;

(d)    the rights of tenants under leases or subleases not interfering with the ordinary conduct of business of the Borrower;

(e)    Liens (i) of a collection bank arising under Section 4-210 of the UCC on items in the course of collection, (ii) attaching to commodity trading accounts or other commodities brokerage accounts incurred in the ordinary course of business, and (iii) in favor of a banking or other financial institution arising as a matter of law or under customary general terms and conditions encumbering deposits (including the right of set-off) and which are within the general parameters customary in the banking industry;

(f)    deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business;

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(g)    judgment liens in respect of judgments that do not constitute an Event of Default under Section 7.01(k);

(h)    Liens (i) on earnest money deposits in connection with purchases and sales of properties, (ii) on cash advances in favor of the seller of any property to be acquired in an investment permitted pursuant to this Agreement, or (iii) consisting of an agreement to dispose of any property;

(i)    Liens arising from precautionary UCC financing statement filings regarding leases entered into by the Borrower or any Subsidiary in the ordinary course of business;

(j)    Liens deemed to exist in connection with investments in repurchase agreements to the extent not prohibited under this Agreement;

(k)    easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Borrower or any Subsidiary;

(l)    Liens pursuant to any Loan Document;

(m)    Liens securing any Swap Agreements entered into by any Subsidiary prior to and in connection with a Qualified Refinancing; provided that such Qualified Refinancing shall occur no later than ninety (90) days from the date of the imposition of such Lien;

(n)    to the extent constituting a Lien, any Permitted Transfer Restrictions and any Permitted Sale Restrictions; and

(o)    that certain Lien with total combined commercial lien value of $40,000 evidenced by the Notice of International Commercial Lien, dated January 09, 2014, filed and recorded as File No. 044-2014-000121 in the Clerk of Superior Court of Dekalb County, Georgia, and that certain Public Notice of Commercial Lien, filed and recorded June 16, 2015, as lien book 1649, page 283, in the Clerk of Superior Court of Dekalb County, Georgia, together with the UCC financing statements filed in connection therewith and any amendments in respect of such UCC financing statements;

provided that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness.

Permitted Pari Passu Provisions means provisions that are contained in documentation evidencing or governing Pari Passu Obligations which provisions are the result of (i) limitations on the ability of a Consolidated Party to make restricted payments or to transfer property to a Loan Party which limitations are not, taken as a whole, materially more restrictive than those contained in the Loan Documents, (ii) limitations on the creation of any lien on any assets of a person or entity that are not, taken as a whole, materially more restrictive than those contained in the Loan Documents or (iii) any requirement that Pari Passu Obligations be secured on an “equal and ratable basis” to the extent that indebtedness under the Facilities is secured.
Permitted Sale Restrictions means obligations, encumbrances or restrictions contained in any arms’-length sale agreement relating to the sale of any Subsidiary or assets, restricting the creation of Liens on, or the sale, transfer or other disposition of Equity Interests or assets that is subject to, such Subsidiary or assets pending such sale; provided that the obligations, encumbrances and restrictions apply only to the Subsidiary or assets that are subject to such sale agreement.
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Permitted Transfer Restrictions means (a) reasonable and customary restrictions on transfer, mortgage liens, pledges and changes in beneficial ownership arising under management agreements, franchise agreements and ground leases entered into in the ordinary course of business (including in connection with any acquisition or development of any applicable property, without regard to the transaction value), including rights of first offer or refusal arising under such agreements and leases, in each case, that limit, but do not prohibit, sale or mortgage transactions and (b) reasonable and customary obligations, encumbrances or restrictions contained in agreements not constituting Indebtedness entered into with limited partners or members of the Borrower or of any other Subsidiary of the Parent imposing obligations in respect of contingent obligations to make any tax “make whole” or similar payment arising out of the sale or other transfer of assets reasonably related to such limited partners’ or members’ interest in the Borrower or such Subsidiary pursuant to “tax protection” or other similar agreements.

Person means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

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.

Pre-Adjustment Successor Rate has the meaning specified in Section 2.14(c).

Pro-Rata Sharemeans, with respect to any Lender, the percentage of the total Term Loan Exposure, Revolving Credit Exposure and unused Commitments represented by such Lender’s Term Loan Exposure, Revolving Credit Exposure and unused Commitments.

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

Qualified Refinancing means any transaction involving the incurrence by any Person of Nonrecourse Indebtedness (including, but not limited to, term loan and/or term securitization transactions that are conducted pursuant to either a Rule 144A or a registered public offering or similar form of securitization transaction) in an aggregate principal amount in excess of $50,000,000 encumbering any asset which previously constituted an Unencumbered Asset.

Real Estate Asset means, with respect to any Person, all of the right, title, and interest of such Person in and to land, improvements, and fixtures.

Recipient means (a) the Administrative Agent, (b) any Lender and (c) any Issuing Bank, as applicable.

Recourse Indebtedness means, as of any date of determination, without duplication, Indebtedness that is not Nonrecourse Indebtedness.

Reference Yearhas the meaning set forth in the definition of Applicable Sustainability Adjustment.

Registerhas the meaning assigned to such term in Section 9.04(b)(iv).
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REIT means a domestic trust or corporation that qualifies as a real estate investment trust under the provisions of § 856, et seq. of the Code or any successor provisions.

Related Adjustment means, in determining any LIBOR Successor Rate, the first relevant available alternative set forth in the order below that can be determined by the Administrative Agent applicable to such LIBOR Successor Rate:

(A)    the spread adjustment, or method for calculating or determining such spread adjustment, that has been selected or recommended by the Relevant Governmental Body for the relevant Pre-Adjustment Successor Rate (taking into account the interest period, interest payment date or payment period for interest calculated and/or tenor thereto) and which adjustment or method (x) is published on an information service as selected by the Administrative Agent from time to time in its reasonable discretion or (y) solely with respect to Term SOFR, if not currently published, which was previously so recommended for Term SOFR and published on an information service acceptable to the Administrative Agent; or

(B)    the spread adjustment that would apply (or has previously been applied) to the fallback rate for a derivative transaction referencing the ISDA Definitions (taking into account the interest period, interest payment date or payment period for interest calculated and/or tenor thereto).

Related Parties means, with respect to any specified Person, such Person’s Affiliates and the respective partners, directors, officers, employees, agents, advisors, consultants, service providers and representatives of such Person and such Person’s Affiliates.

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.

Required Delivery Date has the meaning assigned to such term in Section 5.09(a).

Required Facility Lenders means, with respect to any Facility, the holders of more than fifty percent (50%) of the total Term Loan Exposures or the total Revolving Commitments, as the case may be, outstanding under such Facility (or, in the case of the Revolving Facility, after any termination of the Revolving Commitments, the holders of more than fifty percent (50%) of the total Revolving Credit Exposures); provided that, in the event any Lender shall be a Defaulting Lender, then for so long as such Lender is a Defaulting Lender, “Required Facility Lenders” means Lenders (excluding all Defaulting Lenders) having more than fifty percent (50%) of the total Term Loan Exposures or the total Revolving Commitments (or total Revolving Credit Exposures), as the case may be, outstanding under such Facility (excluding the Term Loan Exposures, Revolving Commitments and Revolving Credit Exposures, as applicable, of all Defaulting Lenders).

Required Lenders means, at any time, Lenders having Term Loan Exposures, Revolving Credit Exposures and unused Commitments representing more than fifty percent (50%) of the sum of the total Term Loan Exposures, Revolving Credit Exposures and unused Commitments at such time; provided that, in the event any of the Lenders shall be a Defaulting Lender, then for so long as such Lender is a Defaulting Lender, “Required Lenders” means Lenders (excluding all Defaulting Lenders) having Term Loan Exposures, Revolving Credit Exposures and unused Commitments representing more
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than fifty percent (50%) of the sum of the total Term Loan Exposures, Revolving Credit Exposures and unused Commitments of such Lenders (excluding all Defaulting Lenders) at such time.

Resignation or Removal Effective Datehas the meaning assigned to such term in Section 8.06.

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

Restricted Payment means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in the Borrower or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interests in the Borrower or any option, warrant or other right to acquire any such Equity Interests in the Borrower.

Revolving Borrowingmeans a borrowing consisting of simultaneous Revolving Loans of the same Type and, in the case of Eurodollar Loans, having the same Interest Period made by each of the Revolving Lenders pursuant to Section 2.01(a).

Revolving Commitment means, with respect to each Lender, the commitment of such Lender to make Revolving Loans and to acquire participations in Letters of Credit hereunder, expressed as an amount representing the maximum aggregate amount of such Lender’s Revolving Credit Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.09, (b) increased from time to time pursuant to Section 2.04, and (c) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial amount of each Lender’s Revolving Commitment is set forth on Schedule 2.01, or in the New Lender Joinder Agreement or the Assignment and Assumption pursuant to which such Lender shall have assumed its Revolving Commitment, as applicable. The initial aggregate amount of the Lenders’ Revolving Commitments as of the Effective Date is $1,000,000,000.

Revolving Commitment Utilization Percentage means on any date, the percentage equal to a fraction (a) the numerator of which is the total Revolving Credit Exposures and (b) the denominator of which is the total Revolving Commitments.

Revolving Credit Exposure means, with respect to any Revolving Lender at any time, the sum of the outstanding principal amount of such Lender’s Revolving Loans and its LC Exposure at such time.

Revolving Credit Facility Fee has the meaning assigned to such term in Section 2.12(b).

Revolving Credit Facility Fee Rate means the rate per annum in basis points set forth in the then applicable ratings category of the table set forth in the definition of Applicable Rate – Rating under the column labeled “Revolving Credit Facility Fee Rate.”

Revolving Facility means the Revolving Commitments and the Revolving Loans made, and Letters of Credit issued, thereunder.

Revolving Facility Increase has the meaning assigned to such term in Section 2.04.

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Revolving Facility Unused Fee has the meaning assigned to such term in Section 2.12(a).

Revolving Lender means a Lender with a Revolving Commitment or Revolving Credit Exposure.

Revolving Loan means a Loan made pursuant to Section 2.01(a) and Section 2.03.

Revolving Maturity Date means January 31, 2025 (the Initial Revolving Maturity Date), subject to extension as provided in Section 2.21.

Revolving Percentage means, with respect to any Revolving Lender, the percentage of the total Revolving Commitments represented by such Lender’s Revolving Commitment. If the Revolving Commitments have terminated or expired, the Revolving Percentages shall be determined based upon the Revolving Commitments most recently in effect, giving effect to any assignments.

S&P means S&P Global Ratings, or any successor thereto.

Sanctions Laws and Regulations means any sanctions, prohibitions or requirements administered, imposed or enforced by the United States Government (including, without limitation, OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury (“HMT”) or other relevant sanctions authority having jurisdiction over any Loan Party or its subsidiaries.

Scheduled Unavailability Datehas the meaning specified in Section 2.14(c).

SECmeans the Securities and Exchange Commission of the United States of America.

Secured Indebtedness means all Indebtedness of any Person that is secured by a Lien on any asset of such Person.

Significant Acquisition means, the Borrower’s acquisition, directly or through a Subsidiary, pursuant to one transaction or a series of related transactions occurring within the same fiscal quarter of the Borrower, of one or more entities or property portfolios with total assets of at least $1,000,000,000.

SOFR with respect to any Business 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 (or any successor source) at approximately 8:00 a.m. (New York City time) on the immediately succeeding Business Day and, in each case, that has been selected or recommended by the Relevant Governmental Body.

Solvent when used with respect to any Person, means that, as of any date of determination, with respect to such Person and its subsidiaries on a consolidated basis, (a) the fair saleable value of its assets is in excess of the total amount of its liabilities (including, without limitation, contingent liabilities); (b) the present fair saleable value of its assets is greater than the probable liability on its existing debts as such debts become absolute and matured; (c) it is then able and expects to be able to pay its debts (including, without limitation, contingent debts and other commitments) as they mature; and (d) it has capital sufficient to carry on its business as conducted and as proposed to be conducted.

subsidiary means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be
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consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity (a) of which securities or other ownership interests representing more than fifty percent (50%) of the equity or more than fifty percent (50%) of the ordinary voting power or, in the case of a partnership, more than fifty percent (50%) of the general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.

Subsidiary means any direct or indirect subsidiary of the Borrower.

Subsidiary Guarantor means, (a) at all times prior to the Investment Grade Release, each domestic Subsidiary of the Borrower that is a Direct Owner of any Owned Property designated by the Borrower to be an Unencumbered Asset and (b) upon and at all times following the Investment Grade Release, each Direct Owner of any Owned Property designated by the Borrower to be an Unencumbered Asset that is a borrower or guarantor of, or otherwise obligated in respect of, any Recourse Indebtedness; in each case under clauses (a) and (b), to the extent such Subsidiary has not been released from its obligations hereunder in accordance with Section 5.09(b) or Section 5.09(c), as applicable, or otherwise with the consent of the Administrative Agent and Required Lenders.

Subsidiary Guaranty means, collectively, (a) the Guaranty, dated as of the date hereof, from the Subsidiary Guarantors on the Effective Date in favor of the Administrative Agent for the benefit of the Lenders (the Initial Subsidiary Guaranty) and (b) any additional Guaranty in substantially the form of the Initial Subsidiary Guaranty that may be executed and delivered after the Effective Date by an Additional Subsidiary Guarantor in accordance with Section 5.09(a).

Sustainable Agentmeans BBVA USA as Sustainable Agent & Coordinator under this Agreement.

Sustainability Adjustment Datemeans the Business Day immediately following the date on which the Borrower provides to the Administrative Agent a Compliance Certificate referencing the Applicable Sustainability Adjustment for the applicable Reference Year pursuant to Section 5.01(c).

Sustainability Adjustment Period means, (a) in the case of the initial Sustainability Adjustment Period, the period commencing on the first Sustainability Adjustment Date following the Effective Date and ending on (but excluding) the next Sustainability Adjustment Date and (b) in the case of each other Sustainability Adjustment Period, the period commencing on the last day of the immediately preceding Sustainability Adjustment Period and ending on (but excluding) the next Sustainability Adjustment Date.

Sustainability Rating means, with respect to any Reference Year, the “GRESB Score”, as calculated and assigned to the Borrower from time to time by GRESB and published in the most recently released GRESB Real Estate Assessment thereof. It is understood and agreed that the Sustainability Rating for the Reference Year ending December 31, 2019 shall be deemed to be the Borrower’s Sustainability Rating as in effect as of the Effective Date which is on file with the Administrative Agent.

Sustainability Rating Change means, for any Reference Year, the percentage change of the Sustainability Rating over the Sustainability Rating for the immediately preceding Reference Year.

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Swapmeans, any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1(a)(47) of the Commodity Exchange Act.

Swap Agreement means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a Master Agreement), including any such obligations or liabilities under any Master Agreement.

Swap Obligationmeans, with respect to any Person, any obligation to pay or perform under any Swap.

Swap Termination Value means, in respect of any one or more Swap Agreements, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Agreement, (a) for any date on or after the date such Swap Agreements have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Agreement, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Agreements (which may include a Lender or any Affiliate of a Lender).

Taxes means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

Term Borrowing means a borrowing consisting of simultaneous Term Loans of the same Type and, in the case of Eurodollar Loans, having the same Interest Period made by each of the Term Loan Lenders pursuant to Section 2.01(b).

Term Loan means the Initial Term Loan and any New Term Loans made pursuant to Section 2.04.

Term Loan Commitment means, with respect to each Term Loan Lender, the commitment of such Lender to make Term Loans hereunder, including any New Term Loans. The initial amount of each Lender’s Term Loan Commitment is set forth on Schedule 2.01 or in the New Lender Joinder Agreement or the Assignment and Assumption pursuant to which such Lender becomes a party hereto. The aggregate amount of the Lenders’ Term Loan Commitments as of the Effective Date is $2,500,000,000.

Term Loan Exposure means, with respect to any Term Loan Lender at any time, the outstanding principal amount of such Lender’s Term Loans.

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Term Loan Facility means the Term Loan Commitments and the Term Loans made thereunder.

Term Loan Lender means a Lender with a Term Loan Commitment or Term Loan Exposure.

Term Loan Maturity Date means January 31, 2025 (the Initial Term Loan Maturity Date), subject to extension as provided in Section 2.21.

Term SOFRmeans the forward-looking term rate for any period that is approximately (as determined by the Administrative Agent) as long as any of the Interest Period options set forth in the definition of “Interest Period” and that is based on SOFR and that has been selected or recommended by the Relevant Governmental Body, in each case as published on an information service as selected by the Administrative Agent from time to time in its reasonable discretion.

Total Asset Value means, as of any date of determination, without duplication, an amount equal to the sum of the Consolidated Group’s Ownership Share of each of the following types of assets (in each case determined in accordance with GAAP as of such date of determination) owned by a Consolidated Party or Investment Affiliate:

(a)    with respect to each Occupied Owned Property that has been owned for at least four full fiscal quarters, an amount equal to the quotient of (i) the Net Operating Income from such Occupied Owned Property for such period, divided by (ii) the Capitalization Rate (but in no event less than zero);

(b)    with respect to each Occupied Owned Property that has been owned for less than one full fiscal quarter, the Book Value of such Occupied Owned Property;

(c)    with respect to each Occupied Owned Property that has been owned for at least one full fiscal quarter, but fewer than four full fiscal quarters, either

(i)    the Book Value of such Occupied Owned Property; or

(ii)    if the Borrower has made a one-time, irrevocable election by written notice to the Administrative Agent to value such Occupied Owned Property in accordance with this clause (c)(ii) (and in a corresponding manner for purposes of determining the Unencumbered Asset Value if such Occupied Owned Property is an Unencumbered Asset); then

(A)    if such Occupied Owned Property has been owned for at least one full fiscal quarter, but fewer than two full fiscal quarters, an amount equal to (1) the aggregate Net Operating Income from such Occupied Owned Property for such fiscal quarter, multiplied by 4, divided by (2) the Capitalization Rate (but in no event less than zero);

(B)    if such Occupied Owned Property has been owned for at least two full fiscal quarters, but fewer than three full fiscal quarters, an amount equal to (1) the aggregate Net Operating Income from such Occupied Owned Property for such two fiscal quarters, multiplied by 2, divided by (2) the Capitalization Rate (but in no event less than zero); and

(C)    if such Occupied Owned Property has been owned for at least three full fiscal quarters, but fewer than four full fiscal quarters, an amount equal to (1) the
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aggregate Net Operating Income from such Occupied Owned Property for such three fiscal quarters, multiplied by 4/3, divided by (2) the Capitalization Rate (but in no event less than zero);

(d)    Unrestricted Cash and cash in respect of Section 1031 exchanges and cash held in escrow with respect to securitization transactions (excluding any portion thereof that has been deducted from Total Outstanding Indebtedness, Total Outstanding Secured Indebtedness or Total Outstanding Unsecured Indebtedness in the calculation of the Financial Covenants);

(e)    with respect to Undeveloped Land, the Book Value of such Undeveloped Land;

(f)    with respect to each Development Property

(i)    that has been included in the calculation of Total Asset Value for four or fewer fiscal quarters as of such date of determination, the Book Value of such Development Property; and

(ii)    that has been included in the calculation of Total Asset Value for more than four fiscal quarters as of such date of determination, an amount equal to the quotient of (A) the aggregate Net Operating Income from such Development Property for such period, divided by (B) the Capitalization Rate (but not less than zero);

(g)    with respect to each Vacant Owned Property, the Book Value of such Vacant Owned Property;

(h)    with respect to any mortgage loan receivable, the Book Value of such mortgage loan receivable; and

(i)    with respect to any investment by a Consolidated Party in the common equity interests of any Investment Affiliate that does not own any assets of the type described in clauses (a) through (h) above, the Book Value of such investment.

Notwithstanding anything to the contrary contained above:

(1)    in calculating Total Asset Value as of any date of determination, Real Estate Assets disposed of at any time prior to such date shall not be included in the calculation of Total Asset Value;

(2)    not more than five percent (5%) of Total Asset Value at any time may be in respect of Undeveloped Land, with any excess over such limit being excluded from Total Asset Value;

(3)    not more than five percent (5%) of Total Asset Value at any time may be in respect of Development Properties, with any excess over such limit being excluded from Total Asset Value;

(4)    not more than five percent (5%) of Total Asset Value at any time may be in respect of mortgage loan receivables, with any excess over such limit being excluded from Total Asset Value;
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(5)    not more than twenty percent (20%) of Total Asset Value at any time may be in respect of investments in Investment Affiliates described in clauses (a) through (i) above, with any excess over such limit being excluded from Total Asset Value;

(6)    not more than seven and one-half percent (7.5%) of Total Asset Value at any time may be in respect of investments described in clause (i) above, with any excess over such limit being excluded from Total Asset Value;

(7)    not more than $750,000,000 of Total Asset Value at any time may be in respect of Vacant Owned Properties, with any excess over such limit being excluded from Total Asset Value;

(8)    not more than fifteen percent (15.0%) of Total Asset Value at any time may be in respect of Multi-Family Rental Properties, with any excess over such limit being excluded from Total Asset Value;

(9)    not more than five percent (5.0%) of Total Asset Value at any time may be in respect of Condominium Properties, with any excess over such limit being excluded from Total Asset Value;

(10)    the limitations set forth in clauses (2), (3), (4), (7), (8) and (9) above shall not apply to investments in Investment Affiliates, which shall be governed solely by clauses (1), (5) and (6) above and clause (11) below; and

(11)    not more than thirty percent (30%) of Total Asset Value at any time may be in respect of the sum of, without duplication, (A) investments described in clauses (e), (f), (g) and (h) above and (B) the aggregate amount of investments in Investment Affiliates described in clauses (a) through (i) above, with any excess over such limit being excluded from Total Asset Value.

Total Interest Expense means, for any period, without duplication, the sum of (a) the Ownership Share of cash interest expense, determined in accordance with GAAP, of the Consolidated Group as of the final day of such period attributable to Total Outstanding Indebtedness and (b) the Ownership Share of any cash interest expense, determined in accordance with GAAP, of any Investment Affiliate, as of the final day of such period, whether recourse or non-recourse. Total Interest Expense shall exclude, for the avoidance of doubt, the following:

(a)    amortization of deferred financing costs, debt issuance costs, commissions, fees and expenses, premiums, if any, pay-in-kind interest expense, the amortization of original issue discount resulting from the issuance of Indebtedness below par, and any other amounts of non-cash interest (including as a result of the effects of purchase accounting);

(b)    the accretion or accrual of discounted liabilities during such period;

(c)    any interest in respect of items excluded from Indebtedness in the Loan Documents;

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(d)    non-cash interest expense attributable to the movement of the mark-to-market valuation of obligations under hedging agreements or other derivative instruments pursuant to Accounting Standards Codification 815;

(e)    any one-time cash costs associated with breakage in respect of hedging agreements for interest rates;

(f)    any expense resulting from the discounting of any Indebtedness in connection with the application of recapitalization accounting or, if applicable, purchase accounting; and

(g)    any expensing of commitment and other financing fees.

Total Leverage Ratio means, as of the last day of any fiscal quarter, a percentage determined by dividing (a) Total Outstanding Indebtedness by (b) Total Asset Value.

Total Outstanding Indebtedness means, as of any date of determination, without duplication, the sum of (a) the Ownership Share of all Indebtedness of the Consolidated Group outstanding at such date, determined on a consolidated basis in accordance with GAAP (other than intercompany Indebtedness between Consolidated Parties), plus (b) the applicable Ownership Share of all Indebtedness of each Investment Affiliate other than Indebtedness of such Investment Affiliate to a Consolidated Party; provided that obligations under Swap Agreements hedging the interest rate risk of Indebtedness for borrowed money of the Consolidated Group or an Investment Affiliate do not constitute Total Outstanding Indebtedness. For the avoidance of doubt, Total Outstanding Indebtedness shall not include any Indebtedness or other obligations evidenced pursuant to security certificates issued by Persons that are not Consolidated Parties (or, with respect to an Investment Affiliate, Persons that are not consolidated with such Investment Affiliate) in connection with securitization transactions, to the extent that (i) such security certificates are held by a Consolidated Party (or, with respect to an Investment Affiliate, an Investment Affiliate) and (ii) such Indebtedness and other obligations are included as “Liabilities” on the Parent’s (or, with respect to an Investment Affiliate, an Investment Affiliate’s) balance sheets furnished pursuant to the Loan Documents.

Total Outstanding Secured Indebtedness means, as of any date of determination, without duplication, the sum of (a) the Ownership Share of all Secured Indebtedness of the Consolidated Group outstanding at such date, determined on a consolidated basis in accordance with GAAP (other than intercompany Indebtedness between Consolidated Parties), plus (b) the applicable Ownership Share of all Secured Indebtedness of each Investment Affiliate other than Indebtedness of such Investment Affiliate to a Consolidated Party; provided that obligations under Swap Agreements hedging the interest rate risk of Indebtedness for borrowed money of the Consolidated Group or an Investment Affiliate do not constitute Total Outstanding Secured Indebtedness. For the avoidance of doubt, Total Outstanding Secured Indebtedness shall not include any Indebtedness or other obligations evidenced pursuant to security certificates issued by Persons that are not Consolidated Parties (or, with respect to an Investment Affiliate, Persons that are not consolidated with such Investment Affiliate) in connection with securitization transactions, to the extent that (i) such security certificates are held by a Consolidated Party (or, with respect to an Investment Affiliate, an Investment Affiliate) and (ii) such Indebtedness and other obligations are included as “Liabilities” on the Parent’s (or, with respect to an Investment Affiliate, an Investment Affiliate’s) balance sheets furnished pursuant to the Loan Documents.

Total Outstanding Secured Recourse Indebtednessmeans, as of any date of determination, without duplication, Secured Indebtedness that constitutes Recourse Indebtedness.
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Total Outstanding Unsecured Indebtedness means, as of any date of determination, without duplication, the sum of (a) the Ownership Share of all Unsecured Indebtedness of the Consolidated Group outstanding at such date, determined on a consolidated basis in accordance with GAAP (other than intercompany Indebtedness between Consolidated Parties), plus (b) the applicable Ownership Share of all Unsecured Indebtedness of each Investment Affiliate other than Indebtedness of such Investment Affiliate to a Consolidated Party; provided that obligations under Swap Agreements hedging the interest rate risk of Indebtedness for borrowed money of the Consolidated Group or an Investment Affiliate do not constitute Total Outstanding Unsecured Indebtedness. For the avoidance of doubt, Total Outstanding Unsecured Indebtedness shall not include any Indebtedness or other obligations evidenced pursuant to security certificates issued by Persons that are not Consolidated Parties (or, with respect to an Investment Affiliate, Persons that are not consolidated with such Investment Affiliate) in connection with securitization transactions, to the extent that (i) such security certificates are held by a Consolidated Party (or, with respect to an Investment Affiliate, an Investment Affiliate) and (ii) such Indebtedness and other obligations are included as “Liabilities” on the Parent’s (or, with respect to an Investment Affiliate, an Investment Affiliate’s) balance sheets furnished pursuant to the Loan Documents.

Total Unsecured Interest Expense means, for any period, without duplication, the portion of Total Interest Expense for such period that is attributable to Total Outstanding Unsecured Indebtedness.

Transactions means the execution, delivery and performance by the Borrower and the other Loan Parties of this Agreement and the other Loan Documents, the borrowing of Loans, the use of the proceeds thereof and the issuance of Letters of Credit hereunder.

Type, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Eurodollar Rate, the LIBOR Daily Floating Rate or the Base Rate.

UCC means the Uniform Commercial Code as in effect in any applicable jurisdiction.

UCP means, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce (“ICC”) Publication No. 600 (or such later version thereof as may be in effect at the time of issuance).

UK Financial Institutionmeans any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from 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.

Undeveloped Land means a Real Estate Asset that constitutes land on which no development (other than improvements that are not material and are temporary in nature) has occurred.

Unencumbered Asset means any Owned Property (including, for the avoidance of doubt, any Occupied Owned Property and any Vacant Owned Property), in each case, 100% of which is owned directly in fee simple by the Borrower or a Wholly-Owned Subsidiary thereof (in such capacity, each
40


such owner, a “Direct Owner”) and which, as of any date of determination, meets each of the following criteria:

(a)    the Owned Property (including the right to receive income therefrom) is not subject to any Liens, claims, Negative Pledges, ground leases (except in the case of condominiums) or restrictions on transferability or assignability of any kind (including, without limitation, any such Lien, claim or restriction imposed by the organizational documents of any subsidiary, any Negative Pledge clause or similar provision that (x) restricts the owner thereof from granting a Lien on such Owned Property (or the right to receive income therefrom) to secure Indebtedness and other obligations arising under the Loan Documents or (y) entitles an entity to a Lien on such asset upon the occurrence of any contingency) other than (i) Permitted Encumbrances or Liens in favor of the Administrative Agent, (ii) Permitted Pari Passu Provisions and (iii) customary restrictions on transferability contained in purchase and sale agreements entered into in connection with a disposition permitted under the Loan Documents (provided that such limitation shall only be effective against the assets or property that are the subject of such disposition), and customary provisions in joint venture agreements or other similar agreements applicable to Non-Wholly-Owned Subsidiaries that result in a change of control or that trigger a right of first offer or right of first refusal; and

(b)    the Direct Owner of the Owned Property is organized in a state within the United States of America or in the District of Columbia.

Unencumbered Asset Value means, as of any date of determination, without duplication, an amount equal to the sum of the Consolidated Group’s Ownership Share of each of the following (in each case determined in accordance with GAAP as of such date of determination):

(a)    Unrestricted Cash and cash in respect of Section 1031 exchanges, in each case, owned by a Consolidated Party (excluding any portion thereof that has been deducted from Total Outstanding Secured Indebtedness or Total Outstanding Unsecured Indebtedness in the calculation of the Financial Covenants);

(b)    with respect to each Unencumbered Asset that is an Occupied Owned Property and has been owned for at least four full fiscal quarters, an amount equal to the quotient of (i) the Net Operating Income from such Unencumbered Asset for such period, divided by (ii) the Capitalization Rate (but in no event less than zero);

(c)    with respect to each Unencumbered Asset that is an Occupied Owned Property and has
been owned for less than one full fiscal quarter, the Book Value of such Unencumbered Asset;

(d)    with respect to each Unencumbered Asset that is an Occupied Owned Property and has been owned for at least one full fiscal quarter, but fewer than four full fiscal quarters, either

(i)    the Book Value of such Unencumbered Asset, or

(ii)    if the Borrower has made a one-time, irrevocable election by written notice to the Administrative Agent to value such Unencumbered Asset in accordance with this clause (d)(ii) (and in a corresponding manner for purposes of determining the Total Asset Value of such Occupied Owned Property), then

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(A)    if such Unencumbered Asset has been owned for at least one full fiscal quarter, but fewer than two full fiscal quarters, an amount equal to (1) the aggregate Unencumbered NOI from such Unencumbered Asset for such fiscal quarter, multiplied by 4, divided by (2) the Capitalization Rate (but in no event less than zero),

(B)    if such Unencumbered Asset has been owned for at least two full fiscal quarters, but fewer than three full fiscal quarters, an amount equal to (1) the aggregate Unencumbered NOI from such Unencumbered Asset for such two fiscal quarters, multiplied by 2, divided by (2) the Capitalization Rate (but in no event less than zero), and

(C)    if such Unencumbered Asset has been owned for at least three full fiscal quarters, but fewer than four full fiscal quarters, an amount equal to (1) the aggregate Unencumbered NOI from such Unencumbered Asset for such three fiscal quarters, multiplied by 4/3, divided by (2) the Capitalization Rate (but in no event less than zero); and

(e)    with respect to each Unencumbered Asset that is a Vacant Owned Property and is owned by a Consolidated Party and has been vacant for one year or less, the Book Value of such Vacant Owned Property.

Notwithstanding anything to the contrary contained above:

(1)    not more than fifteen percent (15.0%) of Unencumbered Asset Value at any time may be in respect of Multi-Family Rental Properties, with any excess over such limit being excluded from Unencumbered Asset Value; and

(2)    not more than five percent (5.0%) of Unencumbered Asset Value at any time may be in respect of Condominium Properties, with any excess over such limit being excluded from Unencumbered Asset Value;

(3)    not more than $750,000,000 of Unencumbered Asset Value at any time may be in respect of Vacant Owned Properties, with any excess over such limit being excluded from Unencumbered Asset Value.

Notwithstanding anything to the contrary contained above, in calculating Unencumbered Asset Value as of any date of determination, Unencumbered Assets disposed of at any time prior to such date shall not be included in the calculation of Unencumbered Asset Value.

Unencumbered NOI means, for any period, Net Operating Income from Unencumbered Assets for such period.

Unrestricted Cash means all Balance Sheet Cash other than cash and Cash Equivalents that (a) are held as collateral, in escrow in a bank account by a lender, creditor or counterparty and cash in respect of Section 1031 exchanges, or are otherwise subject to a pledge, Lien or control agreement (excluding statutory liens in favor of any depositary bank where such cash and Cash Equivalents are maintained) or (b) are held by an entity other than a Consolidated Party as deposits or security for contractual obligations.

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Unsecured Indebtedness means all Indebtedness of any Person that is not secured by a Lien on any asset of such Person.

Unsecured Interest Coverage Ratio has the meaning assigned to such term in Section 6.01(a)(v).

U.S. Personmeans a “United States person” within the meaning of Section 7701(a)(30) of the Code.

U.S. Tax Compliance Certificate has the meaning assigned to such term in Section 2.17(f)(ii)(B)(3).

Vacant Owned Property means, at any time, an Owned Property that is vacant and held for sale to end users. For the avoidance of doubt, “held for sale” shall be determined in the discretion of the Borrower, which determination may not comport with the GAAP definition of such term.

Wholly-Owned Subsidiary means, with respect to any entity on any date, any corporation, partnership, limited liability company or other entity of which one hundred percent (100%) of the equity interests and one hundred percent (100%) of the ordinary voting power are, as of such date, owned and Controlled, directly or indirectly, by such entity. Unless otherwise specified, all references herein to a “Wholly-Owned Subsidiary” or to “Wholly-Owned Subsidiaries” shall refer to a Wholly-Owned Subsidiary or Wholly-Owned Subsidiaries of the Borrower.

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 1 of Subtitle E of Title IV of ERISA.

Withholding Agentmeans any Loan Party and the Administrative Agent.

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

SECTION 1.02    Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a Revolving Loan) or by Type (e.g., a Eurodollar Loan) or by Class and Type (e.g., a “Eurodollar Revolving Loan”). Borrowings also may be classified and referred to by Class (e.g., a Revolving Borrowing) or by Type (e.g., a Eurodollar Borrowing) or by Class and Type (e.g., a Eurodollar Revolving Borrowing).

SECTION 1.03    Terms Generally. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

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(a)    The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. With respect to a reference to any date, the word “from” shall mean “from and including” such date and the word “until” shall mean “until but excluding such date”. Unless the context requires otherwise (i) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (iv) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, (v) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights, and (vi) any reference to any law, rule or regulation shall mean such law, rule or regulation as amended, modified, replaced or supplemented from time to time.

(b)    Any reference herein to a merger, transfer, consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a Division as if it were a merger, transfer, consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any Division Successor shall constitute a separate Person hereunder (and each Division of any Person that is a Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).

SECTION 1.04    Accounting Terms; GAAP. Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP applied on a consistent basis, as in effect from time to time applied in a manner consistent with that used in preparing the audited financial statements referred to in Section 3.04. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under Financial Accounting Standards Board Accounting Standards Codification 825 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Borrower or any Subsidiary at “fair value”, as defined therein.

SECTION 1.05    Rounding. Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

SECTION 1.06    Interest Rates. The Administrative Agent does not warrant, nor accept responsibility, nor shall the Administrative Agent have any liability with respect to the administration, submission or any other matter related to the rates in the definition of “Eurodollar Rate” or “LIBOR Daily Floating Rate” or with respect to any rate that is an alternative or replacement for or successor to any of such rate (including, without limitation, any LIBOR Successor Rate) or the effect of any of the foregoing, or of any LIBOR Successor Rate Conforming Changes.

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ARTICLE II
The Credits

SECTION 2.01    Commitments. (a) Subject to the terms and conditions set forth herein, each Revolving Lender severally agrees to make Revolving Loans in dollars to the Borrower from time to time, on any Business Day during the Availability Period, in an aggregate principal amount that will not result in such Lender’s Revolving Credit Exposure exceeding such Lender’s Revolving Commitment. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Revolving Loans.

(b)    Subject to the terms and conditions set forth herein, each Term Loan Lender severally agrees to make Term Loans (other than New Term Loans) in dollars to the Borrower in an aggregate principal amount not to exceed such Lender’s Term Loan Commitment, and not to exceed $2,500,000,000 in the aggregate for all Term Loan Lenders, on the Effective Date (the Initial Term Loan). Any portion of the Term Loans that is repaid may not be reborrowed.

SECTION 2.02    Loans and Borrowings. (a) Each Revolving Loan shall be made as part of a Borrowing consisting of Revolving Loans made by the Lenders ratably in accordance with their respective Revolving Commitments. Each Term Loan shall be made as part of a Borrowing consisting of Term Loans made by the Term Loan Lenders ratably in accordance with their respective Term Loan Commitments. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.

(b)    Subject to Section 2.14, each Term Borrowing shall be comprised entirely of Base Rate Loans or Eurodollar Loans, and each Revolving Borrowing shall be comprised entirely of Base Rate Loans, Eurodollar Loans or Daily Floating Rate Loans, in each case, as the Borrower may request in accordance herewith. So long as doing so would not result in any increased costs for which the Borrower would be responsible under Section 2.15, each Lender at its option may make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement.

(c)    Borrowings of more than one Type and Class may be outstanding at the same time; provided that there shall not at any time be more than a total of eight (8) Interest Periods in effect with respect to Revolving Loans or ten (10) Interest Periods in effect with respect to Term Loans.

(d)    Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with respect thereto would end after the applicable Maturity Date.

(e)    Notwithstanding anything to the contrary in this Agreement, any Lender may exchange, continue or rollover all or a portion of its Loans in connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement, pursuant to a cashless settlement mechanism approved by the Borrower, the Administrative Agent, and such Lender.

SECTION 2.03    Requests for Borrowings, Conversions and Continuations of Loans.

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(a)    Each Borrowing, each conversion of Loans from one Type to another, and each continuation of Eurodollar Loans shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may be given by (A) telephone or (B) a Borrowing Request; provided that any telephonic notice must be confirmed immediately by delivery to the Administrative Agent of a Borrowing Request. Each such Borrowing Request must be received by the Administrative Agent not later than 11:00 a.m., New York City time, (i) three (3) Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Eurodollar Loans or of any conversion of Eurodollar Loans to Base Rate Loans or Daily Floating Rate Loans or (ii) on the requested date of any Borrowing of Base Rate Loans (including any Revolving Borrowing to finance the reimbursement of an LC Disbursement as contemplated by Section 2.06(e)) or Daily Floating Rate Loans or of any conversion of Base Rate Revolving Loans to Daily Floating Rate Loans or of any conversion of Daily Floating Rate Loans to Base Rate Loans; provided, however, that if the Borrower wishes to request Eurodollar Loans having an Interest Period other than one (1), two (2), three (3) or six (6) months in duration as provided in the definition of “Interest Period,” the applicable notice must be received by the Administrative Agent not later than 11:00 a.m. four (4) Business Days prior to the requested date of such Borrowing, conversion or continuation, whereupon the Administrative Agent shall give prompt notice to the applicable Lenders of such request and determine whether the requested Interest Period is acceptable to all of them. Not later than 11:00 a.m., three (3) Business Days before the requested date of such Borrowing, conversion or continuation, the Administrative Agent shall notify the Borrower (which notice may be by telephone) whether or not the requested Interest Period has been consented to by all of the applicable Lenders. Each Revolving Borrowing of, conversion to or continuation of Eurodollar Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof, and each Revolving Borrowing of or conversion to Base Rate Loans and Daily Floating Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof; provided that (i) any Borrowing need not comply with the foregoing integral multiple requirements if the proceeds of such Borrowing are to be used to repay Indebtedness as long as such Borrowing is in an amount equal to the amount being repaid, and (ii) a Revolving Borrowing of Base Rate Loans may be in an aggregate amount that is equal to the entire unused balance of the total Revolving Commitments or that is required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.06(e). Each Term Borrowing of, conversion to or continuation of Eurodollar Loans shall be in a principal amount of $10,000,000 or a whole multiple of $1,000,000 in excess thereof, and each Term Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof; provided that a Term Borrowing of Base Rate Loans may be in an aggregate amount that is equal to the entire unused balance of the total Term Loan Commitments. Each Borrowing Request shall specify (i) whether the Borrower is requesting a Revolving Borrowing, a Term Borrowing, a conversion of Revolving Loans or Term Loans from one Type to another, or a continuation of Eurodollar Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Revolving Loans or Term Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or the Type to which existing Revolving Loans or Term Loans are to be converted, (v) if applicable, the duration of the Interest Period with respect thereto, which shall be a period contemplated by the definition of the term “Interest Period”, and (vi) the location and account number of the account to which funds are to be disbursed, which shall comply with the requirements of Section 2.07. If the Borrower fails to specify a Type of Loan in a Borrowing Request or if the Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Term Loans shall be made as, or converted to, Base Rate Loans and the applicable Revolving Loans shall be made as, or converted to, Daily Floating Rate Loans. Any such automatic conversion to Base Rate Loans or Daily Floating Rate Loans, as applicable, shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurodollar Loans. If the Borrower requests a
46


Borrowing of, conversion to, or continuation of Eurodollar Loans in any such Borrowing Request, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.

(b)    Promptly following receipt of a Borrowing Request in accordance with Section 2.03(a), the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of any requested Borrowing, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans or Daily Floating Rate Loans, as applicable, described in Section 2.03(a).

(c)    Except as otherwise provided herein, a Eurodollar Loan may be continued or converted only on the last day of an Interest Period for such Eurodollar Loan. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the request of the Required Facility Lenders under the applicable Facility, so notifies the Borrower, then, so long as an Event of Default is continuing (i) no Loans may be requested under such Facility as Eurodollar Loans, (ii) no outstanding Loan under such Facility may be converted to or continued as a Eurodollar Loan and (iii) unless repaid, each Eurodollar Loan shall be converted to a Base Rate Loan at the end of the Interest Period applicable thereto.

(d)    The Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period for Eurodollar Loans upon determination of such interest rate.

SECTION 2.04    Incremental Facilities.

(a)    On one or more occasions at any time on or after the Effective Date, the Borrower may by written notice to the Administrative Agent elect to request (A) an increase to the existing aggregate Revolving Commitments (each such increase, a Revolving Facility Increase) and/or (B) an increase to the size of the existing Term Loan Facility and/or the establishment of one or more incremental term loan facilities to the Term Loan Facility (whether or not a separate tranche, an “Incremental Term Loan; each Incremental Term Loan is referred to individually as an Incremental Term Facility and together with any Revolving Facility Increase, collectively referred to as Incremental Facilities, and any such facility or commitment increase, individually, an Incremental Facility) such that the aggregate amount of the Facilities, together with all such Incremental Facilities, does not exceed at any time $4,000,000,000. Each such notice shall specify the date on which the Borrower proposes that such Incremental Facilities shall be effective, which shall be a date not less than five (5) Business Days (or such lesser number of days as the Administrative Agent shall agree) after the date on which such notice is delivered to the Administrative Agent. The Administrative Agent, the Syndication Agent and/or their respective Affiliates shall use commercially reasonable efforts, with the assistance of the Borrower, to arrange a syndicate of Lenders or other Persons that are Eligible Assignees willing to hold the requested Incremental Facility; provided that (x) any Lender approached to provide all or a portion of any Incremental Facility may elect or decline, in its sole discretion, to participate in an Incremental Facility, and (y) any Lender or other Person that is an Eligible Assignee to whom any portion of such Incremental Facility shall be allocated (each, an Incremental Revolving Lender or Incremental Term Loan Lender, as applicable) shall be subject to the approval of the Borrower and the Administrative Agent (such approval not to be unreasonably withheld or delayed), and, in the case of a Revolving Facility Increase, each Issuing Bank (which approvals shall not be unreasonably withheld), to the extent required by Section 9.04(b).

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(b)    The Administrative Agent and the Borrower shall thereafter determine the effective date (each, an Increased Amount Date) and the final allocation of such Incremental Facility among the Lenders and Eligible Assignees; provided that the effectiveness of any Incremental Facility and the availability of any borrowings under any such Incremental Facility on the Increased Amount Date shall be subject to the satisfaction of the following conditions precedent:

(i)    after giving pro forma effect to such Incremental Facility and borrowings and the use of proceeds thereof, no Event of Default shall exist and be continuing;

(ii)    the representations and warranties made or deemed made by the Borrower in any Loan Document shall be true and correct in all material respects on the Increased Amount Date of such Incremental Facility except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date) or are qualified by materiality (in which case such representations and warranties shall be true and correct in all respects) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents;

(iii)    payment by the Borrower to the Joint Lead Arrangers/Joint Bookrunners and/or the Administrative Agent, for its own account and/or for the benefit of the Incremental Revolving Lenders and/or Incremental Term Loan Lenders participating in such Incremental Facility, of any applicable fees and expenses required to be paid as of the applicable Increased Amount Date;

(iv)    the Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:

(A)    if not previously delivered to the Administrative Agent, copies certified by the Secretary or Assistant Secretary of (x) all corporate or other necessary action taken by the Borrower to authorize such Incremental Facility and (y) all corporate, partnership, member, or other necessary action taken by each Guarantor authorizing the Guaranty by such Guarantor of such Incremental Facility;

(B)    a certificate of the Borrower dated as of the applicable Increased Amount Date signed by an Authorized Officer thereof, certifying that, before and after giving effect to such Incremental Facility, the conditions in clauses (i) and (ii) above have been satisfied;

(C)    if requested by the Administrative Agent, a customary opinion of counsel to the Borrower and the Guarantors (which may be in substantially the same form as delivered on the Effective Date and may be delivered by internal counsel of the Borrower), and addressed to the Administrative Agent and the Lenders;

(D)    if requested by any Lender, new notes executed by the Borrower, payable to any new Lender, and replacement notes executed by the Borrower, payable to any existing Lender;

(E)    a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent and its counsel (a New Lender Joinder Agreement) for each Eligible Assignee that is not an existing Lender and is becoming a Lender in connection
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with such Incremental Facility, duly executed by the Borrower and each such Eligible Assignee and acknowledged and, if required pursuant to Section 9.04(b), consented to in writing by the Administrative Agent, and, in the case of a Revolving Facility Increase, the Issuing Banks; and

(F)    written confirmation from each existing Lender, if any, participating in such Incremental Facility of the amount by which its Revolving Commitment will be increased, and/or the amount of Term Loans and/or Term Loan Commitments to be provided by it;

(v)    all Revolving Facility Increases and all Incremental Term Loans that constitute an increase in an existing tranche of the Term Loan Facility shall be on on the same terms as the Class or tranche of the Facility being increased (in each case, other than pricing, rate floors, discounts, fees, premiums and optional prepayment or redemption provisions or additional terms applicable only to periods after the latest Maturity Date of any Revolving Commitments or Term Loans, as applicable);

(vi)    all incremental commitments and loans provided as part of a newly established Incremental Term Facility shall be, subject to clauses (v), (x) and (z) of the second proviso to Section 9.02(b), on terms agreed to by the Borrower and the Lenders providing such Incremental Term Facility; provided that if the terms of such Incremental Term Facility (other than final maturity) are not the same as the terms of a then existing tranche of the Term Loan Facility, the operational, technical and administrative provisions of such Incremental Term Facility shall be on terms reasonably acceptable to the Administrative Agent; and

(vii)    upon the reasonable request of any Lender or any Eligible Assignee participating in such Incremental Facility made at least ten (10) Business Days prior to the applicable Increased Amount Date, the Borrower shall have provided to such Lender or Eligible Assignee, and such Lender or Eligible Assignee shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act and the Beneficial Ownership Regulation, if applicable, in each case at least five (5) Business Days prior to such Increased Amount Date.

(c)    On any Increased Amount Date on which a Revolving Facility Increase is effected, in the event that such Revolving Facility Increase results in any change to the Revolving Percentage of any Lender, then on such Increased Amount Date (i) the participation interests of the Revolving Lenders in any outstanding Letters of Credit shall be automatically reallocated among the Revolving Lenders in accordance with their respective Revolving Percentages after giving effect to such increase, (ii) any new Lender, and any existing Revolving Lender whose Revolving Commitment has increased, shall pay to the Administrative Agent such amounts as are necessary to fund its new or increased Revolving Percentage of all existing Revolving Loans, (iii) the Administrative Agent will use the proceeds thereof to pay to all existing Revolving Lenders whose Revolving Percentage is decreasing such amounts as are necessary so that each Lender’s participation in existing Revolving Loans will be equal to its adjusted Revolving Percentage and (iv) if the applicable Increased Amount Date occurs on a date other than the last day of an Interest Period applicable to any outstanding Revolving Loan that is a Eurodollar Loan, then the Borrower shall pay any amounts required pursuant to Section 2.16 on account of the payments made pursuant to clause (iii) of this sentence.

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(d)    On any Increased Amount Date on which any Incremental Term Facility is effected, subject to the satisfaction of the foregoing terms and conditions and the conditions set forth in Section 4.02, each Incremental Term Loan Lender participating in such Incremental Term Facility shall make a Loan to the Borrower (a New Term Loan) in an amount equal to its allocated share of such Incremental Term Facility.

(e)    On each Increased Amount Date, the Administrative Agent shall notify the Lenders of the occurrence of the Incremental Facility effected on such Increased Amount Date, the amount of the Incremental Facility and the nature of the increase (i.e., Revolving Facility Increase or Incremental Term Facility) and, (i) in the case of an Revolving Facility Increase, the amount of the Revolving Commitment and Revolving Percentage of each Revolving Lender as a result thereof and (ii) in the case of an Incremental Term Facility, the amount of the Term Loan Commitment of each Term Loan Lender as a result thereof.

(f)    The upfront fees payable to the Incremental Revolving Lenders and/or Incremental Term Loan Lenders with respect to any Incremental Facility shall be determined by the Borrower and such Incremental Revolving Lenders and/or Incremental Term Loan Lenders, as applicable.

(g)    Subject to the foregoing, the Borrower, the Incremental Revolving Lenders or Incremental Term Loan Lenders, as applicable, participating in any Incremental Facility, and the Administrative Agent may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to such Incremental Facility and the provisions of this Section 2.04.

(h)    This Section 2.04 shall supersede any provisions in Section 2.18(c) or 9.02(b) to the contrary.

SECTION 2.05    [Intentionally Omitted].

SECTION 2.06    Letters of Credit. (a) General. Subject to the terms and conditions set forth herein, the Borrower may request and the specified Issuing Bank, in reliance on the agreements of the Lenders set forth in this Section 2.06, shall issue Letters of Credit denominated in dollars with the Borrower being the applicant thereof for the support of the Borrower’s or the Subsidiaries’ obligations, in a form reasonably acceptable to the Administrative Agent and such Issuing Bank, at any time and from time to time during the Availability Period. Letters of Credit issued hereunder shall constitute utilization of the Revolving Commitments. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application and reimbursement agreement or other agreement submitted by the Borrower to, or entered into by the Borrower with, the applicable Issuing Bank relating to the applicable Letter of Credit, the terms and conditions of this Agreement shall control. So long as doing so would not result in any increased costs for which the Borrower would be responsible under Section 2.15, each Issuing Bank at its option may issue any Letter of Credit by causing any domestic or foreign branch or Affiliate of such Issuing Bank to issue such Letter of Credit; provided that any exercise of such option shall not affect the obligation of the Borrower to repay such Letter of Credit in accordance with the terms of this Agreement.

(b)    Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of Credit), the Borrower shall hand deliver or telecopy (or transmit by electronic communication, if arrangements for doing so have been approved by the applicable Issuing Bank) to the Issuing Bank which is being
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requested to issue (or issued, in the case of an amendment, renewal or extension) the Letter of Credit and the Administrative Agent (reasonably in advance of the requested date of issuance, amendment, renewal or extension, but in any event no later than 11:00 a.m., New York City time, on the date three (3) Business Days in advance or such shorter period as the applicable Issuing Bank shall agree to) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal or extension (which shall be a Business Day), the identity of the Issuing Bank selected by the Borrower to issue such Letter of Credit, the date on which such Letter of Credit is to expire (which shall comply with paragraph (c) of this Section), the amount of such Letter of Credit, the name and address of the beneficiary thereof and such other information as shall be necessary to prepare, amend, renew or extend such Letter of Credit. If requested by the applicable Issuing Bank, the Borrower also shall submit a letter of credit application and reimbursement agreement on the applicable Issuing Bank’s standard form in connection with any request for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment, renewal or extension of each Letter of Credit the Borrower shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal or extension (i) the LC Exposure shall not exceed $50,000,000, (ii) the sum of the total Revolving Credit Exposures shall not exceed the total Revolving Commitments, (iii) the LC Issuing Bank Exposure of any Issuing Bank shall not exceed its LC Commitment, unless agreed in writing by such Issuing Bank, and (iv) the Revolving Credit Exposure of any Revolving Lender shall not exceed its Revolving Commitment.

(i)    Notwithstanding the foregoing, no Issuing Bank shall be under any obligation to issue any Letter of Credit if:

(A)    any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such Issuing Bank from issuing the Letter of Credit, or any Law applicable to such Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Issuing Bank shall prohibit, or request that such Issuing Bank refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon such Issuing Bank with respect to the Letter of Credit any restriction, reserve or capital requirement (for which such Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon such Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which such Issuing Bank in good faith deems material to it.

(B)    the issuance of such Letter of Credit would violate one or more policies of such Issuing Bank applicable to letters of credit generally;

(C)    except as otherwise agreed by the Administrative Agent and such Issuing Bank, the Letter of Credit is in an initial stated amount less than $100,000;

(D)    any Lender is at that time a Defaulting Lender, unless such Issuing Bank has entered into arrangements, including the delivery of cash collateral, satisfactory to such Issuing Bank (in its sole discretion) with the Borrower or such Lender to eliminate actual or potential LC Exposure of such Defaulting Lender with respect to Letters of Credit issued by such Issuing Bank (after giving effect to Section 2.20(c)(i)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other LC Exposure as to which such Issuing Bank has actual or potential fronting exposure, as it may elect in its sole discretion; or
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(E)    the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.

(ii)    No Issuing Bank shall be under any obligation to amend any Letter of Credit if (A) such Issuing Bank would have no obligation at such time to issue the Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of the Letter of Credit does not accept the proposed amendment to the Letter of Credit.

(c)    Expiration Date. Each Letter of Credit shall expire (or be subject to termination by notice from the Issuing Bank that issued such Letter of Credit to the beneficiary thereof) at or prior to the close of business on the earlier of (i) the date one year after the date of the issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, one year after such renewal or extension, which renewals or extensions, subject to clause (ii) hereof, may be automatic pursuant to the terms of such Letter of Credit (each, an Auto-Extension Letter of Credit) so long as such Issuing Bank shall have the right to prevent such renewal or extension at least once in each twelve (12) month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the Non-Extension Notice Date) in each such twelve (12) month period to be agreed upon by the Borrower and the applicable Issuing Bank at the time such Letter of Credit is issued) and (ii) the date that is five (5) Business Days prior to the Revolving Maturity Date. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the applicable Issuing Bank to permit the extension of such Letter of Credit at any time to an expiration date not later than the date permitted pursuant to the preceding sentence; provided, that such Issuing Bank shall not (i) permit any such extension if (A) such Issuing Bank has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its extended form under the terms hereof (except that the expiration date may be extended to a date that is no more than one year from the then-current expiration date) or (B) it has received notice (which may be in writing or by telephone (if promptly confirmed in writing)) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent that the Required Lenders have elected not to permit such extension or (ii) be obligated to permit such extension if it has received notice (which may be in writing or by telephone (if promptly confirmed in writing)) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions set forth in Section 4.02 is not then satisfied, and in each such case directing such Issuing Bank not to permit such extension. Notwithstanding the foregoing, a Letter of Credit may have an expiration date that is not more than twelve (12) months after the Revolving Maturity Date so long as (x) the Borrower shall provide cash collateral to the Administrative Agent pursuant to and in accordance with Section 2.06(j) on or prior to thirty (30) days before the Revolving Maturity Date in an amount equal to one hundred two percent (102%) of the LC Exposure with respect to all such Letters of Credit with expiry dates after the Revolving Maturity Date, (y) the obligations of the Borrower under this Section 2.06 in respect of such Letters of Credit shall survive the Revolving Maturity Date and shall remain in effect until no such Letters of Credit remain outstanding and (z) each Lender shall remain obligated hereunder, to the extent any such cash collateral, the application thereof or reimbursement in respect thereof is required to be returned to the Borrower by the Administrative Agent after the Revolving Maturity Date until no such Letters of Credit remain outstanding.

(d)    Participations. By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount or extending the expiration date thereof) and without any further action on the part of the Issuing Bank that issued such Letter of Credit or the Lenders, such Issuing Bank hereby
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grants to each Revolving Lender, and each Revolving Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Revolving Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank that issued such Letter of Credit, such Lender’s Revolving Percentage of each LC Disbursement made by such Issuing Bank and not reimbursed by the Borrower on the date due as provided in paragraph (e) of this Section 2.06, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.

(e)    Reimbursement. If the Issuing Bank that issued a Letter of Credit shall make any LC Disbursement in respect of such Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Administrative Agent an amount equal to such LC Disbursement not later than 12:00 noon, New York City time, on the date that such LC Disbursement is made, if the Borrower shall have received notice of such LC Disbursement prior to 10:00 a.m., New York City time, on such date, or, if such notice has not been received by the Borrower prior to such time on such date, then not later than 12:00 noon, New York City time, on (i) the Business Day that the Borrower receives such notice, if such notice is received prior to 10:00 a.m., New York City time, on the day of receipt, or (ii) the Business Day immediately following the day that the Borrower receives such notice, if such notice is not received prior to such time on the day of receipt; provided that the Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.03 that such payment be financed with a Revolving Borrowing of Base Rate Loans in an equivalent amount and, to the extent so financed, the Borrower’s obligation to make such payment shall be discharged and replaced by the resulting Revolving Borrowing of Base Rate Loans. If the Borrower fails to make such payment when due, the Administrative Agent shall notify each Revolving Lender of the applicable LC Disbursement, the payment then due from the Borrower in respect thereof and such Lender’s Revolving Percentage thereof. Promptly following receipt of such notice, each Revolving Lender shall pay to the Administrative Agent its Revolving Percentage of the payment then due from the Borrower, in the same manner as provided in Section 2.07 with respect to Revolving Loans made by such Lender (and Section 2.07 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders), and the Administrative Agent shall promptly pay to the Issuing Bank that issued a Letter of Credit the amounts so received by it from the Revolving Lenders. Promptly following receipt by the Administrative Agent of any payment from the Borrower pursuant to this paragraph, the Administrative Agent shall distribute such payment to the Issuing Bank that issued a Letter of Credit or, to the extent that Revolving Lenders have made payments pursuant to this paragraph to reimburse such Issuing Bank, then to such Revolving Lenders and such Issuing Bank as their interests may appear. Any payment made by a Revolving Lender pursuant to this paragraph to reimburse the Issuing Bank that issued a Letter of Credit for any LC Disbursement (other than the funding of Base Rate Revolving Loans as contemplated above) shall not constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such LC Disbursement.

Each Revolving Lender further acknowledges and agrees that its participation in each Letter of Credit will be automatically adjusted to reflect such Lender’s Revolving Percentage of the aggregate amount available to be drawn under such Letter of Credit at each time such Lender's Revolving Commitment is amended pursuant to the operation of Section 2.04, as a result of an assignment in accordance with Section 9.04 or otherwise pursuant to this Agreement.
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If any Revolving Lender fails to make available to the Administrative Agent for the account of the applicable Issuing Bank any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.06(e), then, without limiting the other provisions of this Agreement, the applicable Issuing Bank shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to such Issuing Bank at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the applicable Issuing Bank in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by such Issuing Bank in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Loan included in the relevant Revolving Borrowing or such Lender’s payment made pursuant to the first paragraph of this Section 2.06(e) in respect of the relevant LC Disbursement, as the case may be. A certificate of any Issuing Bank submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this paragraph shall be conclusive absent manifest error.

(f)    Obligations Absolute. The Borrower’s obligation to reimburse LC Disbursements as provided in paragraph (e) of this Section 2.06 shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other document presented under a 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; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit, (iii) payment by the Issuing Bank that issued a Letter of Credit under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit; or any payment made by the Issuing Bank that issued a Letter of Credit under a Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any applicable law with respect to any Bankruptcy Event, (iv) the existence of any claim, counterclaim, setoff, defense or other right that the Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), any Issuing Bank or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction, (v) waiver by any Issuing Bank of any requirement that exists for such Issuing Bank's protection and not the protection of the Borrower or any waiver by such Issuing Bank which does not in fact materially prejudice the Borrower; (vi) honor of a demand for payment presented electronically even if such Letter of Credit required that demand be in the form of a draft; (vii) any payment made by any Issuing Bank in respect of an otherwise complying item presented after the date specified as the expiration date of, or the date by which documents must be received under such Letter of Credit if presentation after such date is authorized by the UCC, the ISP or the UCP, as applicable; or (viii) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 2.06, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Borrower’s instructions or other irregularity, the Borrower will promptly notify the applicable Issuing Bank. The Borrower shall be conclusively deemed to have waived any such claim against each Issuing
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Bank and its correspondents unless such notice is given as aforesaid. Neither the Administrative Agent, the Lenders nor the Issuing Bank that issued a Letter of Credit, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms, any error in translation or any consequence arising from causes beyond the control of such Issuing Bank; provided that nothing in this Section 2.06 shall be construed to excuse such Issuing Bank from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by such Issuing Bank’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit issued by such Issuing Bank comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence, bad faith or willful misconduct on the part of the Issuing Bank that issued a Letter of Credit (as finally determined by a court of competent jurisdiction), such Issuing Bank shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit issued by an Issuing Bank, such Issuing Bank may, in its sole discretion, replace a purportedly lost, stolen, or destroyed original Letter of Credit issued by such Issuing Bank or missing amendment thereto with a certified true copy marked as such or waive a requirement for its presentation either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary and without regard to any non-documentary condition in such Letter of Credit, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
Without limiting the foregoing, neither the Administrative Agent, the Lenders nor the Issuing Bank that issued a Letter of Credit, nor any of their Related Parties, shall have any liability or responsibility by reason of (i) any presentation that includes forged or fraudulent documents or that is otherwise affected by the fraudulent, bad faith, or illegal conduct of the beneficiary or other Person, (ii) an Issuing Bank declining to take-up documents and make payment (A) against documents that are fraudulent, forged, or for other reasons by which that it is entitled not to honor or (B) following the Borrower’s waiver of discrepancies with respect to such documents or request for honor of such documents or (iii) an Issuing Bank retaining proceeds of a Letter of Credit based on an apparently applicable attachment order, blocking regulation, or third-party claim notified to such Issuing Bank.

(g)    Disbursement Procedures. The Issuing Bank issuing a Letter of Credit shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under such Letter of Credit. Such Issuing Bank shall promptly notify the Administrative Agent and the Borrower in writing of such demand for payment and whether such Issuing Bank has made or will make an LC Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not relieve the Borrower of its obligation to reimburse such Issuing Bank and the Revolving Lenders with respect to any such LC Disbursement.

(h)    Interim Interest. If the Issuing Bank that issued a Letter of Credit shall make any LC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement, at the rate per annum then applicable to Base Rate Revolving Loans; provided that, if the
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Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of this Section 2.06, then Section 2.13(d) shall apply. Interest accrued pursuant to this paragraph shall be for the account of such Issuing Bank, except that interest accrued on and after the date of payment by any Revolving Lender pursuant to paragraph (e) of this Section 2.06 to reimburse the applicable Issuing Bank shall be for the account of such Revolving Lender to the extent of such payment.

(i)    Removal and Addition of an Issuing Bank.

(i)    An Issuing Bank may be removed as an Issuing Bank at any time by written agreement among the Borrower, the Administrative Agent and each Issuing Bank, including the Issuing Bank being removed. The Administrative Agent shall notify the Lenders of any such removal of an Issuing Bank. At the time any such removal shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the removed Issuing Bank pursuant to Section 2.12(c). After the removal of an Issuing Bank hereunder, (i) the removed Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such removal, but shall not be required to issue additional Letters of Credit and (ii) references herein to the term “Issuing Bank” shall be deemed to refer to such removed Issuing Bank as the context shall require.

(ii)    A Lender may be added as an Issuing Bank at any time by written agreement among the Borrower, the Administrative Agent, each Issuing Bank and the Lender becoming an Issuing Bank. The Administrative Agent shall notify the Lenders of any such addition of an Issuing Bank. From and after the effective date of any such addition, (i) the new Issuing Bank shall have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit to be issued by it thereafter and (ii) references herein to the term “Issuing Bank” shall be deemed to refer to such new Issuing Bank as the context shall require.

(j)    Cash Collateralization. If (A) any Event of Default shall occur and be continuing, on the Business Day that the Borrower receives notice from the Administrative Agent or the Required Facility Lenders under the Revolving Facility (or, if the maturity of the Loans has been accelerated, Lenders with LC Exposure representing greater than fifty percent (50%) of the total LC Exposure) demanding the deposit of cash collateral pursuant to this paragraph, or (B) required by Section 2.06(c), the Borrower shall deposit in an account established and maintained on the books and records of the Administrative Agent an amount in cash equal to one hundred two percent (102%) of the LC Exposure as of such date plus any accrued and unpaid interest thereon; provided that the obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default with respect to the Borrower described in Section 7.01(h) or (i). Such deposit shall be held by the Administrative Agent for the satisfaction of the LC Exposure. The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Other than any interest earned on the investment of such deposits, which investments shall be made in Cash Equivalents at the option and sole discretion of the Administrative Agent and at the Borrower’s risk and expense, such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such account shall be applied by the Administrative Agent to reimburse each Issuing Bank ratably (based on the unreimbursed LC Disbursements held by each Issuing Bank) for LC Disbursements for which it has not been reimbursed, together with related fees, costs, and customary processing charges, and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of Lenders with LC Exposure representing greater than fifty percent (50%) of the
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total LC Exposure), be applied to satisfy other obligations of the Borrower under this Agreement. If the Borrower is required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three (3) Business Days after all Events of Default have been cured or waived.

(k)    Applicability of ISP and UCP; Limitation of Liability. Unless otherwise expressly agreed by an Issuing Bank and the Borrower when a Letter of Credit is issued by such Issuing Bank (including any such agreement applicable to an Existing Letter of Credit), the rules of the ISP shall apply to each standby Letter of Credit, and the rules of the UCP shall apply to each commercial Letter of Credit. Notwithstanding the foregoing, such Issuing Bank shall not be responsible to the Borrower for, and such Issuing Bank’s rights and remedies against the Borrower shall not be impaired by, any action or inaction of such Issuing Bank required or permitted under any law, order, or practice that is required or permitted to be applied to any Letter of Credit issued pursuant to this Agreement, including the law or any order of a jurisdiction where such Issuing Bank or the beneficiary is located, the practice stated in the ISP or UCP, as applicable, or in the decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade - International Financial Services Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice.

Each Issuing Bank shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and each Issuing Bank shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article VIII with respect to any acts taken or omissions suffered by such Issuing Bank in connection with Letters of Credit issued by it or proposed to be issued by it and issuer documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article VIII included such Issuing Bank with respect to such acts or omissions, and (B) as additionally provided herein with respect to such Issuing Bank.

(l)    Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Subsidiary, the Borrower shall be obligated to reimburse, indemnify and compensate the applicable Issuing Bank hereunder for any and all drawings under such Letter of Credit as if such Letter of Credit had been issued solely for the account of the Borrower. The Borrower irrevocably waives any and all defenses that might otherwise be available to it as a guarantor or surety of any or all of the obligations of such Subsidiary in respect of such Letter of Credit. The Borrower hereby acknowledges that the issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of the Borrower, and that the Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.

SECTION 2.07    Funding of Borrowings. (a) Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 12:00 noon, New York City time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Borrowing, Section 4.01), the Administrative Agent will make such Loans available to the Borrower by promptly, but in no event later than 2:00 p.m., New York City time, either by (i) crediting the amounts so received, in like funds, to an account of the Borrower on the books of Bank of America or (ii) wire transfer of such funds, in each case, in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower in the applicable Borrowing Request; provided that Base Rate Revolving Loans made to finance the reimbursement of an LC Disbursement as provided in Section 2.06(e) shall be remitted by the Administrative Agent to the applicable Issuing Bank.
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(b)    Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of Eurodollar Loans (or, in the case of any Borrowing of Base Rate Loans or Daily Floating Rate Loans, prior to 12:00 noon New York City time on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with paragraph (a) of this Section 2.07 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing or (ii) in the case of the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.

(c)    If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Borrowing set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.

(d)    Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.

SECTION 2.08    [Intentionally Omitted].

SECTION 2.09    Termination and Reduction of Commitments. (a) (i) Unless previously terminated, the Revolving Commitments shall terminate on the Revolving Maturity Date and (ii) the Term Loan Commitments shall terminate following disbursement of the Term Loans on the Effective Date.

(b)    The Borrower may at any time terminate, or from time to time reduce, the Commitments under a particular Facility; provided that (i) each reduction of the Commitments shall be in an amount that is an integral multiple of $1,000,000 and not less than $5,000,000 and (ii) the Borrower shall not terminate or reduce the Revolving Commitments if, after giving effect to any concurrent prepayment of the Loans in accordance with Section 2.11, the sum of the Revolving Credit Exposures would exceed the total Revolving Commitments.

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(c)    The Borrower shall notify the Administrative Agent of any election to terminate or reduce the Commitments under paragraph (b) of this Section 2.09 at least three (3) Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section shall be irrevocable; provided that a notice of termination of the Revolving Commitments delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities or the occurrence of some other identifiable event or condition, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Any termination or reduction of the Commitments shall be permanent. Each reduction of the Commitments under a particular Facility shall be made ratably among the Lenders in accordance with their respective Commitments under such Facility. All fees accrued until the effective date of any termination of the Revolving Commitments shall be paid on the effective date of such termination.

SECTION 2.10    Repayment of Loans; Evidence of Debt. (a) The Borrower hereby unconditionally promises to pay (i) to the Administrative Agent for the account of each Revolving Lender, the then unpaid principal amount of each Revolving Loan on the Revolving Maturity Date, and (ii) to the Administrative Agent for the account of each Term Loan Lender, the then unpaid principal amount of each Term Loan on the Term Loan Maturity Date.

(b)    Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the Indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.

(c)    The Administrative Agent shall maintain the Register in accordance with Section 9.04(b).

(d)    The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this Section shall be prima facie evidence of the existence and amounts of the obligations recorded therein; provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans in accordance with the terms of this Agreement. In the event of any conflict between the accounts and records maintained by any Lender and the Register, the Register shall control in the absence of manifest error.

(e)    Any Lender may request that Loans made by it be evidenced by one or more promissory notes in substantially the form of Exhibit D. In such event, the Borrower shall prepare, execute and deliver to such Lender one or more promissory notes payable to the order of such Lender (or, if requested by such Lender, to such Lender and its registered assigns) and in a form approved by the Administrative Agent. Thereafter, the Loans evidenced by such promissory note(s) and interest thereon shall at all times (including after assignment pursuant to Section 9.04) be represented by one or more promissory notes in such form payable to the order of the payee named therein, unless such assignee elects not to receive a Note (in which case such assignor shall return to the Borrower any Note issued to it, or in the case of any loss, theft or destruction of any such Note, a lost note affidavit in customary form) (or, if such promissory note is a registered note, to such payee and its registered assigns).

SECTION 2.11    Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing in whole or in part, without premium or penalty (except as provided in Section 2.16), subject to prior notice in accordance with paragraph (b) of this Section 2.11.
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(b)    The Borrower may, upon notice to the Administrative Agent pursuant to delivery to the Administrative Agent of a Notice of Loan Prepayment, at any time or from time to time voluntarily prepay Loans in whole or in part without premium or penalty; provided that such notice must be received by the Administrative Agent (i) in the case of prepayment of Eurodollar Loans, not later than 11:00 a.m., New York City time, three (3) Business Days before the date of prepayment, or (ii) in the case of prepayment of Base Rate Loans or Daily Floating Rate Loans, not later than 11:00 a.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid; provided that, a Notice of Loan Prepayment delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities or the occurrence of some other identifiable event or condition, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Promptly following receipt of any such notice relating to the prepayment of a Borrowing, the Administrative Agent shall advise the applicable Lenders of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type and Class as provided in Section 2.02. Subject to Section 2.20, each prepayment of a Borrowing shall be applied ratably to the applicable Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.13. Any portion of the Term Loan that is prepaid may not be reborrowed.

(c)    Notwithstanding anything to the contrary contained herein, if at any time the aggregate Revolving Credit Exposure of all Revolving Lenders exceeds the aggregate amount of the Revolving Commitments, the Borrower shall immediately upon demand prepay Loans and/or cash collateralize the LC Exposure in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to cash collateralize the LC Exposure pursuant to this Section 2.11(c) unless after the prepayment in full of the Revolving Loans the aggregate Revolving Credit Exposure of all Revolving Lenders exceeds the aggregate amount of the Revolving Commitments then in effect.

SECTION 2.12    Fees. (a) At all times prior to the date on which an effective Investment Grade Election is made, the Borrower agrees to pay to the Administrative Agent, for the account of each Revolving Lender, an unused facility fee (the Revolving Facility Unused Fee), computed at the Commitment Fee Rate on the actual daily amount of the Available Revolving Commitment of such Revolving Lender during the period for which payment is made, which Revolving Facility Unused Fee shall be payable quarterly in arrears on the last day of each of March, June, September and December during the applicable period, commencing on the first such date to occur after the date hereof, and on the date the Revolving Commitments terminate. All Revolving Facility Unused Fees shall be computed on the basis of a year of three hundred sixty (360) days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).

(b)    On and after the date on which an effective Investment Grade Election is made, the Borrower agrees to pay to the Administrative Agent, for the account of each Revolving Lender, a revolving credit facility fee (the Revolving Credit Facility Fee), equal to the Revolving Credit Facility Fee Rate multiplied by the amount of the Revolving Commitment of such Revolving Lender (regardless of usage and provided that if the Revolving Commitments terminate, then the Revolving Credit Facility Fee shall continue to accrue and be determined based on the Revolving Credit Exposure of such Revolving Lender) during the period for which payment is made, which Revolving Credit Facility Fee shall be payable quarterly in arrears on the last day of each of March, June, September and December during the applicable period, commencing on the first such date to occur after an effective Investment
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Grade Election is made, and on the date the Revolving Commitments terminate (and, if applicable, thereafter on demand). All Revolving Credit Facility Fees shall be computed on the basis of a year of three hundred sixty (360) days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).

(c)    During such time as any LC Exposure exists, the Borrower agrees to pay (i) to the Administrative Agent for the account of each Revolving Lender a participation fee with respect to its participations in Letters of Credit, which shall accrue at the same Applicable Rate used to determine the interest rate applicable to Eurodollar Revolving Loans on the actual daily amount of such Revolving Lender’s LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Effective Date to but excluding the later of the date on which such Lender’s Revolving Commitment terminates and the date on which such Lender ceases to have any LC Exposure and (ii) to each Issuing Bank, solely for its own account, a fronting fee equal to one-eighth of one percent (0.125%) per annum multiplied by the actual daily amount of the LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Effective Date to but excluding the later of the date on which such Lender’s Revolving Commitment terminates and the date on which such Lender ceases to have any LC Exposure, as well as such Issuing Bank’s standard fees with respect to the issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings thereunder. Participation fees and fronting fees shall accrue interest through and including the last day of each calendar quarter and shall be payable quarterly in arrears on the first Business Day after the last day of each of March, June, September and December during the applicable period, commencing on the first such date to occur after the Effective Date on which LC Exposure exists; provided that all such fees shall be payable on the date on which the Revolving Commitments terminate and any such fees accruing after the date on which the Revolving Commitments terminate shall be payable on demand. Any other fees payable to any Issuing Bank pursuant to this paragraph shall be payable within ten (10) days after demand. All participation fees and fronting fees shall be computed on the basis of a year of three hundred sixty (360) days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).

(d)    The Borrower agrees to pay to the Administrative Agent, for its own account, fees payable in the amounts and at the times separately agreed upon between the Borrower and the Administrative Agent.

(e)    All fees payable hereunder shall be paid on the dates due, in immediately available funds, to the Administrative Agent (or to any Issuing Bank, in the case of fees payable to it) for its own account or for distribution to the applicable Lenders, as the case may be. Fees paid shall not be refundable under any circumstances. Each determination by the Administrative Agent of a fee hereunder shall be conclusive and binding for all purposes, absent manifest error.

SECTION 2.13    Interest. (a) Each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate.

(b)    Each Eurodollar Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate.

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(c)    Each Daily Floating Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the LIBOR Daily Floating Rate plus the Applicable Rate.

(d)    Notwithstanding the foregoing, if an Event of Default under Section 7.01(a), (b), (h) or (i) has occurred and is continuing, at the option of the Required Lenders, all overdue Obligations (which shall include all Obligations following an acceleration under Section 7.01, including an automatic acceleration) shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, two percent (2%) plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section or (ii) in the case of any other amount, two percent (2%) plus the rate applicable to Base Rate Revolving Loans as provided in paragraph (a) of this Section 2.13.

(e)    Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan; provided that (i) interest accrued pursuant to paragraph (c) of this Section 2.13 shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a prepayment of a Base Rate Revolving Loan or a Daily Floating Rate Loan prior to the end of the Availability Period), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any Eurodollar Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any Bankruptcy Event.

(f)    All interest hereunder shall be computed on the basis of a year of three hundred sixty (360) days, except that interest computed by reference to the Base Rate (including Base Rate Loans and Borrowings the interest on which is computed by reference to clause (c) of the definition of “Base Rate”) shall be computed on the basis of a year of three hundred sixty-five (365) days (or three hundred sixty-six (366) days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day). Each determination by the Administrative Agent of an interest rate hereunder shall be conclusive and binding for all purposes, absent manifest error.

(g)    In the event that the Borrower achieves an Investment Grade Rating and makes the Investment Grade Election, then the Applicable Rate and the Revolving Credit Facility Fee shall be based on the Applicable Rate – Rating as of the first Business Day following the date on which the Borrower makes an effective Investment Grade Election. Once effectively made, the Investment Grade Election shall be irrevocable.

SECTION 2.14    Alternate Rate of Interest.

(a)    If in connection with any request for a Eurodollar Loan or a conversion to or continuation thereof or a request for or conversion to a Daily Floating Rate Loan, (i) the Administrative Agent determines that (A) Dollar deposits are not being offered to banks in the London interbank market for the applicable amount and Interest Period of such Eurodollar Loan or, in the case of a Daily Floating Rate Loan, the applicable amount thereof for terms equal to one (1) month, or (B) (x) adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Loan or in connection with an existing or proposed Base Rate Loan or LIBOR Daily Floating Rate in connection with any existing or proposed Daily Floating Rate Loan and (y) the circumstances described in Section 2.14(c)(i) do not apply (in each case with respect to this clause (i),
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Impacted Loans), or (ii) the Administrative Agent or the Required Lenders determine that for any reason the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Loan, or the LIBOR Daily Floating Rate with respect to an existing or proposed Daily Floating Rate Loan, does not adequately and fairly reflect the cost to such Lenders of funding such Eurodollar Loan or Daily Floating Rate Loan, as applicable, the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain Eurodollar Loans or to make or maintain Daily Floating Rate Loans, as the case may be, shall be suspended (in the case of Eurodollar Loans, to the extent of the affected Eurodollar Loans or Interest Periods), and (y) in the event of a determination described in the preceding sentence with respect to the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar Rate component in determining the Base Rate shall be suspended, in each case until the Administrative Agent (or, in the case of a determination by the Required Lenders described in clause (ii) of Section 2.14(a), until the Administrative Agent upon instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Loans (to the extent of the affected Eurodollar Loans or Interest Periods) or revoke any pending request for a Borrowing of, or conversion to, Daily Floating Rate Loans or, in each case, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein and all outstanding Daily Floating Rate Loans will be deemed to have been converted into Base Rate Loans.

(b)    Notwithstanding the foregoing, if the Administrative Agent has made the determination described in clause (i) of Section 2.14(a), the Administrative Agent, in consultation with the Borrower and Required Lenders, may establish an alternative interest rate for the Impacted Loans, in which case, such alternative rate of interest shall apply with respect to the Impacted Loans until (i) the Administrative Agent revokes the notice delivered with respect to the Impacted Loans under clause (i) of the first sentence of Section 2.14(a), (ii) the Administrative Agent or the Required Lenders notify the Administrative Agent and the Borrower that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of funding the Impacted Loans, or (iii) any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable lending office to make, maintain or fund Loans whose interest is determined by reference to such alternative rate of interest or to determine or charge interest rates based upon such rate or any Governmental Authority has imposed material restrictions on the authority of such Lender to do any of the foregoing and provides the Administrative Agent and the Borrower written notice thereof.

(c)    Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Borrower or Required Lenders notify the Administrative Agent (with, in the case of the Required Lenders, a copy to the Borrower) that the Borrower or Required Lenders (as applicable) have determined, that:

(i)    adequate and reasonable means do not exist for ascertaining LIBOR with respect to Eurodollar Loans for any Interest Period hereunder or any other tenors of LIBOR or with respect to Daily Floating Rate Loans for terms equal to one (1) month, including, because the LIBOR Screen Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or

(ii)    the administrator of the LIBOR Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent or such administrator has made a public statement identifying a specific date after which LIBOR or the LIBOR Screen Rate shall no longer be made available, or used for determining the interest rate of loans, provided that, at the time of such
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statement, there is no successor administrator that is satisfactory to the Administrative Agent, that will continue to provide LIBOR after such specific date (such specific date, the Scheduled Unavailability Date); or

(iii)    the administrator of the LIBOR Screen Rate or a Governmental Authority having jurisdiction over such administrator has made a public statement announcing that interest periods of one (1) month and all other tenors of LIBOR are no longer representative with respect to Daily Floating Rate Loans or all Interest Periods and other tenors of LIBOR are no longer representative with respect to Eurodollar Loans; or

(iv)    syndicated loans currently being executed, or that include language similar to that contained in this Section 2.14, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace LIBOR;

then, in the case of clauses (i)-(iii) above, on a date and time determined by the Administrative Agent (any such date, the LIBOR Replacement Date), which date shall be with respect to Eurodollar Loans, at the end of an Interest Period or on the relevant interest payment date, as applicable, for interest calculated and with respect to Daily Floating Rate Loans, on the relevant interest payment date for interest calculated, and shall occur reasonably promptly upon the occurrence of any of the events or circumstances under clauses (i), (ii) or (iii) above and, solely with respect to clause (ii) above, no later than the Scheduled Unavailability Date, LIBOR will be replaced hereunder and under any Loan Document with, subject to the proviso below, the first available alternative set forth in the order below for any payment period for interest calculated that can be determined by the Administrative Agent, in each case, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document (the LIBOR Successor Rate; and any such rate before giving effect to the Related Adjustment, the Pre-Adjustment Successor Rate):

(x)    Term SOFR plus the Related Adjustment; and

(y)     SOFR plus the Related Adjustment;

and in the case of clause (iv) above, the Borrower and Administrative Agent may amend this Agreement solely for the purpose of replacing LIBOR under this Agreement and under any other Loan Document in accordance with the definition of “LIBOR Successor Rate” and such amendment will become effective at 5:00 p.m., New York City time, on the fifth (5th) Business Day after the Administrative Agent shall have notified all Lenders and the Borrower of the occurrence of the circumstances described in clause (iv) above unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders object to the implementation of a LIBOR Successor Rate pursuant to such clause;

provided that, if the Administrative Agent determines that Term SOFR has become available, is administratively feasible for the Administrative Agent and would have been identified as the Pre-Adjustment Successor Rate in accordance with the foregoing if it had been so available at the time that the LIBOR Successor Rate then in effect was so identified, and the Administrative Agent notifies the Borrower (and in the case of Daily Floating Rate Loans only, the Borrower provides written consent) and each Lender of such availability, then from and after with respect to Eurodollar Loans, the beginning of the Interest Period, relevant interest payment date or payment period for interest calculated and with respect to Daily Floating Rate Loans, the relevant interest payment date or payment period for interest calculated, in each case, commencing no less than thirty (30) days after the date of such notice, the Pre-
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Adjustment Successor Rate shall be Term SOFR and the LIBOR Successor Rate shall be Term SOFR plus the relevant Related Adjustment.

The Administrative Agent will promptly (in one or more notices) notify the Borrower and each Lender of (x) any occurrence of any of the events, periods or circumstances under clauses (i) through (iii) above, (y) a LIBOR Replacement Date and (z) the LIBOR Successor Rate.

Any LIBOR Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for the Administrative Agent, such LIBOR Successor Rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent.

Notwithstanding anything else herein, if at any time any LIBOR Successor Rate as so determined would otherwise be less than zero, the LIBOR Successor Rate will be deemed to be zero for the purposes of this Agreement and the other Loan Documents.

In connection with the implementation of a LIBOR Successor Rate, the Administrative Agent will have the right to make LIBOR Successor Rate Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such LIBOR Successor Rate Conforming Changes will become effective without any further action or consent of any other party to this Agreement; provided that, with respect to any such amendment effected, the Administrative Agent shall post each such amendment implementing such LIBOR Successor Rate Conforming Changes to the Borrower and the Lenders reasonably promptly after such amendment becomes effective.
If the events or circumstances of the type described in Section 2.14(c)(i)-(iii) have occurred with respect to the LIBOR Successor Rate then in effect, then the successor rate thereto shall be determined in accordance with the definition of “LIBOR Successor Rate.”

(d)    Notwithstanding anything to the contrary herein, (i) after any such determination by the Administrative Agent or receipt by the Administrative Agent of any such notice described under Section 2.14(c)(i)-(iii), as applicable, if the Administrative Agent determines that none of the LIBOR Successor Rates is available on or prior to the LIBOR Replacement Date, (ii) if the events or circumstances described in Section 2.14(c)(iv) have occurred but none of the LIBOR Successor Rates is available, or (iii) if the events or circumstances of the type described in Section 2.14(c)(i)-(iii) have occurred with respect to the LIBOR Successor Rate then in effect and the Administrative Agent determines that none of the LIBOR Successor Rates is available, then in each case, the Administrative Agent and the Borrower may amend this Agreement solely for the purpose of replacing LIBOR or any then current LIBOR Successor Rate in accordance with this Section 2.14 with respect to Eurodollar Loans, at the end of any Interest Period, relevant interest payment date or payment period for interest calculated, as applicable, and with respect to Daily Floating Rate Loans, at the end of any relevant interest payment date or payment period for interest calculated, as applicable, with another alternate benchmark rate giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated syndicated credit facilities for such alternative benchmarks and, in each case, including any Related Adjustments and any other mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated syndicated credit facilities for such benchmarks, which adjustment or method for calculating such adjustment shall be published on an information service as selected by the Administrative Agent from time to time in its reasonable discretion and may be periodically updated. For the avoidance of doubt, any such proposed rate and adjustments shall constitute a LIBOR Successor Rate. Any such amendment shall become
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effective at 5:00 p.m., New York City time, on the fifth (5th) Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrower unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders object to such amendment.

(e)    If, with respect to Eurodollar Loans, at the end of any Interest Period, relevant interest payment date or payment period for interest calculated, and with respect to Daily Floating Rate Loans, at the end of any relevant interest payment date or payment period for interest calculated, no LIBOR Successor Rate has been determined in accordance with clauses (c) or (d) of this Section 2.14 and the circumstances under clauses (c)(i) or (c)(iii) above exist or the Scheduled Unavailability Date has occurred (as applicable), the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain Loans based on LIBOR shall be suspended, (to the extent of the affected Loans, Interest Periods, interest payment dates or payment periods), and (y) the Eurodollar Rate component shall no longer be utilized in determining the Base Rate, until the LIBOR Successor Rate has been determined in accordance with clauses (c) or (d). Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Loans (to the extent of the affected Eurodollar Loans, Interest Periods, interest payment dates or payment periods) or Daily Floating Rate Loans (to the extent of the affected Daily Floating Rate Loans, interest payment dated or payment periods), as applicable, or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans (subject to the foregoing clause (y)) in the amount specified therein.

SECTION 2.15    Increased Costs. (a) If any Change in Law shall:

(i)    impose, modify or deem applicable any reserve, special deposit, liquidity or similar requirement (including any compulsory loan requirement, insurance charge or other assessment) against assets of, deposits with or for the account of, or credit extended by, any Lender (except any reserve requirement contemplated by Section 2.15(e)) or any Issuing Bank;

(ii)    impose on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation therein; or

(iii)    subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;

and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, continuing, converting to or maintaining any Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to such Lender, such Issuing Bank or such other Recipient of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit) or to reduce the amount of any sum received or receivable by such Lender, such Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise), in each case in an amount that such Lender, such Issuing Bank or such other Recipient deems to be material, then the Borrower will pay to such Lender, such Issuing Bank or such other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender, such Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.

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(b)    If any Lender or any Issuing Bank determines that any Change in Law regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or such Issuing Bank’s capital or on the capital of such Lender’s or such Issuing Bank’s holding company, if any, as a consequence of this Agreement , the Commitments of such Lender or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below that which such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or such Issuing Bank’s policies and the policies of such Lender’s or such Issuing Bank’s holding company with respect to capital adequacy and liquidity), then from time to time the Borrower will pay to such Lender or such Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company for any such reduction suffered.

(c)    A certificate of a Lender or an Issuing Bank setting forth the amount or amounts necessary to compensate such Lender or such Issuing Bank or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section 2.15 shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender or such Issuing Bank, as the case may be, the amount shown as due on any such certificate within thirty (30) days after receipt thereof.

(d)    Failure or delay on the part of any Lender or any Issuing Bank to demand compensation pursuant to this Section 2.15 shall not constitute a waiver of such Lender’s or such Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or an Issuing Bank pursuant to this Section 2.15 for any increased costs or reductions incurred more than one hundred eighty (180) days prior to the date that such Lender or such Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or such Issuing Bank’s intention to claim compensation therefor; provided, further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.

(e)    The Borrower shall pay to each Lender, as long as such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including eurocurrency funds or deposits, additional interest on the unpaid principal amount of each Eurodollar Loan and each Daily Floating Rate Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive), which shall be due and payable on each date on which interest is payable on such Loan, provided the Borrower shall have received at least ten (10) days’ prior notice (with a copy to the Administrative Agent) of such additional interest from such Lender. If a Lender fails to give notice ten (10) days prior to the relevant Interest Payment Date, such additional interest shall be due and payable ten (10) days from receipt of such notice.

(f)    Notwithstanding the foregoing, each Lender agrees that amounts claimed under this Section 2.15 shall be reasonably determined by such Lender (which determination shall be made in good faith (and not on an arbitrary or capricious basis) and consistent with similarly situated customers of the applicable Lender under agreements having provisions similar to this Section 2.15 after consideration of such factors as such Lender then reasonably determines to be relevant); provided that in no event shall any Lender be required to disclose information of other borrowers.

SECTION 2.16    Break Funding Payments. In the event of (a) the payment of any principal of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion or continuation of any Eurodollar Loan other than on the last
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day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Eurodollar Loan on the date or in the amount specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked under Section 2.11(b) and is revoked in accordance therewith), or (d) the assignment of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.19, then, in any such event, the Borrower shall compensate each Lender for the loss, cost and expense attributable to such event (excluding loss of anticipated profits, but including any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained) and any customary administrative fees charged by such Lender in connection with the foregoing; provided that each such Lender shall use reasonable efforts to mitigate any such loss, cost and expense in accordance with Section 2.19. In the case of a Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to include an amount determined by such Lender to be the excess, if any, of (i) the amount of interest which would have accrued on the principal amount of such Loan had such event not occurred, at the Eurodollar Rate that would have been applicable to such Loan, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Loan), over (ii) the amount of interest which would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such period, for dollar deposits of a comparable amount and period from other banks in the eurodollar market. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section 2.16, including, if requested by the Borrower, in reasonable detail a description of the basis for such compensation and a calculation of such amount or amounts (but excluding any confidential or proprietary information of such Lender), shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within thirty (30) days after receipt thereof.

SECTION 2.17    Payments Free of Taxes. (a) Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 2.17) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.

(b)    Payment of Other Taxes by the Loan Parties. The Loan Parties shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for, Other Taxes.

(c)    Evidence of Payments. As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 2.17, such Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

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(d)    Indemnification by the Loan Parties. The Loan Parties shall indemnify each Recipient, within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

(e)    Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 9.04(c) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (e).

(f)    Status of Lenders. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.17(f)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

(ii)    Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Person,

(A)    any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. Federal backup withholding tax;

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(B)    any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:

1.    in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of an applicable IRS Form W-8BEN or W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, an applicable IRS Form W-8BEN or W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

2.executed copies of IRS Form W-8ECI;

3.in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit C-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a U.S. Tax Compliance Certificate) and (y) executed copies of an applicable IRS Form W-8BEN or W-8BEN-E, as applicable; or

4.to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, an applicable IRS Form W-8BEN or W-8BEN-E, as applicable, a U.S. Tax Compliance Certificate substantially in the form of Exhibit C-2 or Exhibit C-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit C-4 on behalf of each such direct and indirect partner;

(C)    any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. Federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
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(D)    if a payment made to a Lender under any Loan Document would be subject to U.S. Federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(g)Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.17 (including by the payment of additional amounts pursuant to this Section 2.17), 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 2.17 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 paragraph (g) (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 paragraph (g) in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph 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.

(h)Survival. Each party’s obligations under this Section 2.17 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.

(i)Defined Terms. For purposes of this Section 2.17, the term “Lender” includes any Issuing Bank and the term “applicable law” includes FATCA.

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SECTION 2.18    Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower shall make each payment required to be made by them hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to 12:00 noon, New York City time, on the date when due, in immediately available funds, free and clear of and without condition or deduction for any defense, recoupment, set off or counterclaim (but without prejudice to the Borrower’s rights with respect to any Defaulting Lender). Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon or fees, as the case may be. All such payments shall be made to the Administrative Agent at its offices at Bank of America, N.A. Agency Management, 135 S. LaSalle Street, Mail Code: IL4-135-09-61, Chicago, Illinois 60603, Attention: Denise Jones, or by wire transfer to the following unless otherwise directed by the Administrative Agent:

Bank of America, N.A., ABA#: ***
Account Name: ***
Account No.: ***
Ref: ***

except payments to be made directly to any Issuing Bank as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Term Loans (other than New Term Loans) shall be made pro rata according to the respective outstanding principal amounts of the Term Loans then held by the Term Loan Lenders. Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Loans shall be made pro rata according to the respective Revolving Percentages of the Revolving Lenders.

(b)If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.

(c)If any Lender shall, by exercising any right of set off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall notify the Administrative Agent of such fact and purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to (x) any payment made by the Borrower pursuant to and in accordance with the express terms of this
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Agreement (including the application of funds arising from the existence of a Defaulting Lender), (y) the application of cash collateral provided for in Section 2.23, or (z) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.

(d)Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or any Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or each Issuing Bank, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or each Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

(e)If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.06(d), Section 2.06(e), Section 2.07(b), Section 2.18(d) or Section 9.03(c), then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold such amounts in a segregated account over which the Administrative Agent shall have exclusive control as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clause (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.

SECTION 2.19    Mitigation Obligations; Replacement of Lenders. (a) If any Lender requests compensation under Section 2.15, or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17, or if any Lender gives a notice pursuant to Section 2.22, then at the request of the Borrower such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Sections 2.15 or 2.17, as the case may be, in the future or eliminate the need for the notice pursuant to Section 2.22, as applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

(b)If (w) any Lender requests compensation under Section 2.15, or (x) if the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17, or (y) if any Lender becomes Defaulting Lender, or (z) any Lender has refused to consent to any proposed amendment, modification,
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waiver, termination or consent with respect to any provision of this Agreement or any other Loan Document that, pursuant to Section 9.02, requires the consent of all Lenders or each Lender affected thereby and with respect to which Lenders constituting the Required Lenders have consented to such proposed amendment, modification, waiver, termination or consent, and, in each case under clauses (w) and (x), such Lender has declined or is unable to designate a different lending office in accordance with Section 2.19(a), then the Borrower may, at its sole expense and effort, upon notice by the Borrower to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.04), all its interests, rights (other than its existing rights to payments pursuant to Sections 2.15 or 2.17) and obligations under this Agreement to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (i) the Borrower shall have received the prior written consent of the Administrative Agent (and if a Revolving Commitment is being assigned, each Issuing Bank) if such assignee is not a Lender, which consent shall not unreasonably be withheld, (ii) subject to the Borrower’s rights with respect to Defaulting Lenders under Section 2.20 hereof, such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and participations in LC Disbursements, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 2.16) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts), (iii) in the case of any such assignment resulting from a claim for compensation under Section 2.15 or payments required to be made pursuant to Section 2.17, such assignment will result in a reduction in or elimination of such compensation or payments, (iv) in the case of any such assignment resulting from a Lender’s refusal to consent to a proposed amendment, modification, waiver, termination or consent, the assignee shall approve the proposed amendment, modification, waiver, termination or consent, (v) the Borrower shall have paid to the Administrative Agent the assignment fee (if any) specified in Section 9.04(b) and (vi) such assignment does not conflict with applicable law. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.

Each party hereto agrees that (a) an assignment required pursuant to this Section 2.19 may be effected pursuant to an Assignment and Assumption executed by the Borrower, the Administrative Agent and the assignee and (b) the Lender required to make such assignment need not be a party thereto in order for such assignment to be effective and shall be deemed to have consented to an be bound by the terms thereof; provided that, following the effectiveness of any such assignment, the other parties to such assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable Lender, provided, further that any such documents shall be without recourse to or warranty by the parties thereto.

Notwithstanding anything in this Section 2.19 to the contrary, (i) any Lender that acts as an Issuing Bank may not be replaced hereunder at any time it has any Letter of Credit outstanding hereunder unless arrangements satisfactory to such Lender (including the furnishing of a backstop standby letter of credit in form and substance, and issued by an issuer, reasonably satisfactory to such Issuing Bank or the depositing of cash collateral into a cash collateral account in amounts and pursuant to arrangements reasonably satisfactory to such Issuing Bank) have been made with respect to such outstanding Letter of Credit and (ii) the Lender that acts as the Administrative Agent may not be replaced hereunder except in accordance with the terms of Section 8.06.

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SECTION 2.20    Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender, to the extent permitted by applicable law:

(a)Revolving Facility Unused Fees and Revolving Credit Facility Fees shall cease to accrue on the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a) or Section 2.12(b);

(b)the Commitments, Term Loan Exposure and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Required Facility Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided, that (i) no Defaulting Lender’s Commitments may be increased or extended without its consent and (ii) the principal amount of, or interest or fees payable on, Loans or LC Disbursements may not be reduced or excused or the scheduled date of payment may not be postponed as to a Defaulting Lender without such Defaulting Lender’s consent;

(c)if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:

(i)    all or any part of the LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders that are Revolving Lenders in accordance with their respective Revolving Percentages (calculated without regard to such Defaulting Lender’s Revolving Commitment) but only to the extent that such reallocation does not cause the aggregate Revolving Credit Exposure of any non-Defaulting Lender to exceed such non-Defaulting Lender’s Revolving Commitment;

(ii)    if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall, within one (1) Business Day following notice to the Borrower by the Administrative Agent cash collateralize for the benefit of the Issuing Banks only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.23 for so long as such LC Exposure is outstanding;

(iii)    if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(c) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;

(iv)    if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.12(a), Section 2.12(b) and Section 2.12(c) shall be adjusted in accordance with such non-Defaulting Lenders’ Revolving Percentages; and

(v)    if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all facility fees payable under Section 2.12(a) and Section 2.12(b) that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(c) with respect to such Defaulting Lender’s LC Exposure shall be payable to any
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Issuing Bank ratably (based on the LC Exposure then held by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and

(d)so long as such Revolving Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, extend, amend, increase or renew any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be one hundred percent (100%) covered by the Revolving Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c), and participating interests in any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein).

(e)Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 2.18(c) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Bank hereunder; third, to cash collateralize such Defaulting Lender’s LC Exposure in accordance with Section 2.23; fourth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) cash collateralize the Issuing Bank’s future exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.23; sixth, to the payment of any amounts owing to the Lenders or the Issuing Banks as a result of any judgment of a court of competent jurisdiction obtained by any Lender or any Issuing Bank against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender's breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or LC Disbursements in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and LC Exposure of, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or LC Exposure of, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit are held by the Lenders pro rata in accordance with the applicable Commitments hereunder without giving effect to Section 2.20(c)(i). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.20(e) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

If (i) a Bankruptcy Event with respect to a Lender Parent shall occur following the date hereof and for so long as such event shall continue or (ii) any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase
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any Letter of Credit, unless such Issuing Bank shall have entered into arrangements with the Borrower or such Lender, satisfactory to such Issuing Bank to defease any risk to it in respect of such Lender hereunder.

In the event that each of the Administrative Agent, the Borrower, and each Issuing Bank agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Revolving Percentage.

SECTION 2.21    Extensions of Maturity Dates.

(a)Extension of Revolving Maturity Date. The Borrower shall have two (2) options (which shall be binding on the Lenders), exercisable by written notice to the Administrative Agent (such notice, a “Revolving Extension Notice”) given no more than one hundred twenty (120) days nor less than thirty (30) days prior to (i) the Initial Revolving Maturity Date, to extend the Revolving Maturity Date for a period of six (6) months from the Initial Revolving Maturity Date (such new Revolving Maturity Date, the “First Extended Revolving Maturity Date”) and (ii) the First Extended Revolving Maturity Date, to extend the Revolving Maturity Date for an additional period of six (6) months from the First Extended Revolving Maturity Date to the Final Maturity Date. The Administrative Agent shall distribute each Revolving Extension Notice promptly to the Revolving Lenders following its receipt thereof.

(b)Extension of Term Loan Maturity Date. The Borrower shall have two (2) options (which shall be binding on the Lenders), exercisable by written notice to the Administrative Agent (such notice, a “Term Loan Extension Notice”) given no more than one hundred twenty (120) days nor less than thirty (30) days prior to (i) the Initial Term Loan Maturity Date, to extend the Term Loan Maturity Date for a period of six (6) months from the Initial Term Loan Maturity Date (such new Term Loan Maturity Date, the “First Extended Term Loan Maturity Date”) and (ii) the First Extended Term Loan Maturity Date, to extend the Term Loan Maturity Date for an additional period of six (6) months from the First Extended Term Loan Maturity Date to the Final Maturity Date. The Administrative Agent shall distribute each Term Loan Extension Notice promptly to the Term Loan Lenders following its receipt thereof.

(c)Conditions Precedent to Effectiveness of each Extension. As conditions precedent to each extension of the Revolving Maturity Date and each extension of the Term Loan Maturity Date, the Borrower shall, on or prior to the then applicable Maturity Date, satisfy each of the following requirements for such extension to become effective (in each case, the first date on which such conditions precedent are satisfied or waived with respect to the applicable extension, the “Extension Effective Date” for such extension): (i) no Default or Event of Default has occurred and is continuing on the applicable Extension Effective Date; (ii) the Administrative Agent shall have received a certificate of the Borrower dated as of the applicable Extension Effective Date signed by an Authorized Officer thereof, certifying that, (x) before and after giving effect to such extension, the representations and warranties made or deemed made by the Borrower in any Loan Document shall be true and correct in all material respects on the applicable Extension Effective Date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date) or are qualified by materiality (in which case such representations and warranties shall be true and correct in all respects) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents and (y) the resolutions delivered to the Administrative Agent and the Lenders on the Effective Date (which
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resolutions include approval to extend each of the Revolving Maturity Date and the Term Loan Maturity Date to at least the Final Maturity Date) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption; and (iii) the Borrower shall have paid an extension fee of 0.075% (7.5 basis points) multiplied by (x) in the case of an extension of the Revolving Maturity Date, the aggregate amount of the Lenders’ Revolving Commitments on the applicable Extension Effective Date (to the Administrative Agent for the ratable benefit of the Revolving Lenders) and (y) in the case of an extension of the Term Loan Maturity Date, the aggregate outstanding amount of the Lenders’ Term Loans on the applicable Extension Effective Date (to the Administrative Agent for the ratable benefit of the Term Loan Lenders).

SECTION 2.22    Illegality. If any Lender determines that any law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable lending office to make, maintain or fund Loans whose interest is determined by reference to the Eurodollar Rate, or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, dollars in the London interbank market, then, upon notice thereof by such Lender to the Borrower (through the Administrative Agent), (a) any obligation of such Lender to make or continue Eurodollar Loans or to convert Base Rate Loans to Eurodollar Loans shall be suspended, and (b) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate component of the Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (i) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Loans and (ii) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Eurodollar Rate component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurodollar Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 2.16.

SECTION 2.23    Cash Collateral.

(a)Obligation to Cash Collateralize. At any time that there shall exist a Defaulting Lender, within one (1) Business Day following the written request of the Administrative Agent or any Issuing Bank (with a copy to the Administrative Agent), the Borrower shall cash collateralize the LC Exposure of such Defaulting Lender (determined after giving effect to Section 2.20(c)(i) and any cash collateral provided by such Defaulting Lender) in an amount not less than 100% of such Defaulting Lender’s LC Exposure.

(b)Grant of Security Interest. The Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to (and subjects to the control of) the Administrative
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Agent, for the benefit of the Administrative Agent, the Issuing Banks and the Lenders, and agrees to maintain, a first priority security interest in all such cash, deposit accounts and all balances therein, and all other property, in each case, so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which such cash collateral may be applied pursuant to Section 2.23(c). If at any time the Administrative Agent determines that cash collateral is subject to any right or claim of any Person other than the Administrative Agent or the applicable Issuing Bank as herein provided, or that the total amount of such cash collateral is less than the minimum amount required by this Agreement, the Borrower will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional cash collateral in an amount sufficient to eliminate such deficiency (determined in the case of cash collateral provided pursuant to clause (a) above, after giving effect to Section 2.20(c)(i) and any cash collateral provided by the Defaulting Lender). All cash collateral (other than credit support not constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit accounts at Bank of America. The Borrower shall pay on demand therefor from time to time all customary account opening, activity and other administrative fees and charges in connection with the maintenance and disbursement of cash collateral.

(c)Application. Notwithstanding anything to the contrary contained in this Agreement, cash collateral provided under any of this Section 2.23 or Sections 2.06, 2.20 or 7.02 in respect of Letters of Credit shall be held and applied to the satisfaction of the specific Letters of Credit, obligations to fund participations therein (including, as to cash collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the cash collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.

(d)Release. Cash collateral (or the appropriate portion thereof) provided to secure LC Exposure or to secure other obligations shall be released promptly following (i) the elimination of the applicable LC Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following compliance with Section 9.04(b)(ii)(E))) or (ii) the determination by the Administrative Agent and the applicable Issuing Bank that there exists excess cash collateral; provided, however, the Person providing cash collateral and the applicable Issuing Bank may agree that cash collateral shall not be released but instead held to support future anticipated LC Exposure or other obligations.

ARTICLE III
Representations and Warranties

The Borrower represents and warrants to the Lenders that:

SECTION 3.01    Organization; Powers. Each Parent Entity and the Borrower is and, except where the failure to do so, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect, each of the Subsidiaries is, duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and has all requisite power and authority to carry on its business as now conducted. Each of Parent Entity, the Borrower and each of the Subsidiaries is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required except where the failure to be so qualified would not reasonably be expected to have a Material Adverse Effect.

SECTION 3.02    Authorization; Enforceability. The Transactions are within the corporate, partnership, limited liability company or other organizational powers, as applicable, of each Loan Party and have been duly authorized by all necessary corporate, partnership, limited liability company or other organizational action. Each of this Agreement and the other Loan Documents to which a Loan Party is
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a party has been duly executed and delivered by such Loan Party and constitutes a legal, valid and binding obligation of such Loan Party enforceable against such Loan Party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

SECTION 3.03    Approvals; No Conflicts. The Transactions (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority or any other Person, except such as have been obtained or made and are in full force and effect and except for such filings as may be required with the SEC to comply with disclosure obligations, (b) will not violate any applicable law or regulation or the charter, by-laws or other organizational documents of the Borrower or any of its Subsidiaries or any order of any Governmental Authority having jurisdiction over any Loan Party, except for any violation of any applicable law or regulation that would not reasonably be expected to have a Material Adverse Effect, (c) will not violate or result in a default under any indenture, agreement or other instrument binding upon the Borrower or any of its Subsidiaries or their assets, or give rise to a right thereunder to require any payment to be made by the Borrower or any of its Subsidiaries, except for any violation or default that would not reasonably be expected to have a Material Adverse Effect, and (d) will not result in the creation or imposition of any Lien on any asset of any Loan Party.

SECTION 3.04    Financial Condition; No Material Adverse Change. (a) The Borrower has heretofore furnished to the Administrative Agent for delivery to the Lenders (i) the audited consolidated annual financial statements for the Borrower and its Subsidiaries for fiscal year 2019, and (ii) the most recent unaudited consolidated quarterly financial statements of the Consolidated Group, certified by a Financial Officer of the Borrower. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the relevant entities as of such dates and for such periods in accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes in the case of the statements referred to in clause (ii) above.

(b)Since December 31, 2019, no event, development or circumstance has occurred which has had, or would reasonably be expected to have, a Material Adverse Effect.

SECTION 3.05    Properties. (a) The Borrower and each Subsidiary has good title to, or valid leasehold interests in, all its real and personal property material to its business, except (i) in the case of Permitted Encumbrances or (ii) where the failure to do so would not reasonably be expected to have a Material Adverse Effect. Each of the assets included as Unencumbered Assets for purposes of the Financial Covenants satisfies the requirements for an Unencumbered Asset set forth in the definition thereof. As of the Effective Date, Schedule 3.05 sets forth a list of the Unencumbered Assets and the Direct Owners thereof.

(b)The Borrower and each Subsidiary owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property material to its business, and the use thereof by the Borrower and the Subsidiaries does not infringe upon the rights of any other
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Person, except for any such infringements that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.

SECTION 3.06    Litigation and Environmental Matters. (a) There are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of the Borrower, threatened against the Borrower or any Loan Party (i) as to which there is a reasonable likelihood of an adverse determination and that, if adversely determined, would reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect (other than the Disclosed Matters and matters fully covered by insurance as to which the insurer has been notified of such action, suit or proceeding and has not issued a notice denying coverage thereof) or (ii) challenging the validity or enforceability of this Agreement, the other Loan Documents or the Transactions. As of the date of this Agreement, the Borrower and the Subsidiaries have no material contingent obligations that are not disclosed in the financial statements referred to in Section 3.04 or listed as a Disclosed Matter.

(b)Except for the Disclosed Matters and except with respect to any other matters that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect, neither the Borrower nor any of the Subsidiaries (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) is subject to any Environmental Liability of which it is aware, (iii) has received written notice of any claim with respect to any Environmental Liability or (iv) knows of any basis for any Environmental Liability.

SECTION 3.07    Compliance with Laws and Agreements; No Default. The Borrower, each Subsidiary and each Parent Entity is in compliance with all laws, regulations and orders of any Governmental Authority applicable to it or its property and all indentures, agreements and other instruments binding upon it or its property, except where the failure to do so, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. No Default has occurred and is continuing.

SECTION 3.08    Investment Company Status. No Loan Party is required to be registered as an “investment company” as defined in the Investment Company Act of 1940.

SECTION 3.09    Taxes. The Borrower and each Subsidiary has timely filed or caused to be filed all Tax returns and reports required to have been filed and has paid or caused to be paid all Taxes required to have been paid by it, except (a) Taxes that are being contested in good faith by appropriate proceedings and for which the Borrower or such Subsidiary, as applicable, has set aside on its books adequate reserves in conformity with GAAP or (b) to the extent that the failure to do so would not reasonably be expected to have a Material Adverse Effect.

SECTION 3.10    ERISA. (a) No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, would reasonably be expected to have a Material Adverse Effect.
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(b)The Borrower represents and warrants as of the Effective Date that the Borrower is not and will not be using “plan assets&#