UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 OR 15(d)
of The Securities Exchange Act of 1934
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Item 1.01 | Entry into a Material Definitive Agreement. |
Amended Credit Facility
On April 7, 2022, Sun Communities Operating Limited Partnership (the “Operating Partnership”), as borrower, and its parent company, Sun Communities, Inc. (the “Company”), as guarantor, and certain lenders entered into Amendment No. 1 to the Fourth Amended and Restated Credit Agreement and Other Loan Documents (the “Credit Facility Amendment”), which amended the Company’s senior credit facility.
The Credit Facility Amendment increases the aggregate amount of the Company’s senior credit facility to $4.2 billion with the ability to upsize the total borrowings by an additional $800 million, subject to certain conditions. The increased aggregate amount under the senior credit facility consists of the following: (a) a revolving loan in the amount up to $3.05 billion and (b) a term loan facility of $1.15 billion, with the ability to draw funds from the combined facilities in U.S. dollars, Sterling, Euros, Canadian dollars and Australian dollars, subject to certain limitations. The Credit Facility Amendment extends the maturity date of the revolving loan facility to April 7, 2027, assuming the Operating Partnership’s exercise of each of its two six-month extension options and also extends the maturity date of the term loan facility to April 7, 2025, which, under the terms of the Credit Facility Amendment, may not be extended. Prior to the amendment, the senior credit facility permitted aggregate borrowings of up to $2.0 billion, with an accordion feature that allowed for additional commitments of up to $1.0 billion, subject to the satisfaction of certain conditions.
Under the Credit Facility Amendment the senior credit facility bears interest at a floating rate based on Adjusted Term SOFR, the Adjusted Eurocurrency Rate, the Daily RFR Rate, the Australian Bank Bill Swap Bid Rate (BBSY), the Daily SONIA Rate or the Canadian Dollar Offered Rate plus a margin which can range from 0.725% to 1.600%, subject to certain adjustments. As of March 31, 2022, the margin based on the Company’s credit ratings would have been 0.850% on the revolving loan facility and 0.950% on the term loan facility.
The foregoing description of the Credit Facility Amendment does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Credit Facility Amendment, a copy of which is attached hereto as Exhibit 10.1, and the terms of which are incorporated by reference herein.
Item 2.03 | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The information contained in and incorporated into Item 1.01 above is hereby incorporated in this Item 2.03 by reference.
Item 3.02 | Unregistered Sales of Equity Securities. |
The information regarding the issuance of the Common Stock received by certain sellers as part of the consideration for the Park Holidays acquisition, described in Item 8.01 below, is hereby incorporated into this Item 3.02. The issuance of such shares of Common Stock was made in reliance upon the exemption from registration afforded by Section 4(a)(2) of the Securities Act of 1933, as amended, and/or Regulation D and/or Regulation S, as promulgated thereunder by the Securities and Exchange Commission.
Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
In connection with the Company’s succession plans, on April 8, 2022, Karen J. Dearing announced her retirement from her positions as Chief Financial Officer, Secretary and Treasurer of the Company, effective as of May 2, 2022. Ms. Dearing will remain with the Company as its Executive Vice President - Special Projects, in which role she will assist in overseeing, managing and advising on special projects, including the Company’s UK investments.
Also on April 8, 2022, the Company appointed Fernando Castro-Caratini as its Executive Vice President, Chief Financial Officer, Secretary and Treasurer, effective as of May 2, 2022. Mr. Castro-Caratini, age 38, joined the Company in November 2016 and currently serves as Senior Vice President, Finance & Capital Markets. In this role, he has set operational, financial, corporate M&A, and public communication strategies in addition to managing the Company’s investor, research analyst, investment bank and lender relationships. Before joining the Company, Mr. Castro-Caratini was with Citigroup in the Real Estate & Lodging Investment Banking group where he executed on a broad range of transactions for real estate and lodging clients focusing primarily on strategic advisory, including M&A and initial public offerings. He received a B.A. from Washington University in Saint Louis, and an MBA from New York University’s Stern School of Business.
On April 8, 2022, the Company and the Operating Partnership entered into employment agreements, to be effective on May 2, 2022, with each of Ms. Dearing and Mr. Castro-Caratini (together, the “Executive Officers”) under which they will serve the Company in their new roles (collectively, the “Employment Agreements”). Upon the effectiveness of her new Employment Agreement, the employment agreement dated March 29, 2021, as amended, among Ms. Dearing, the Company and the Operating Partnership will be terminated as of May 2, 2022.
The initial terms of Ms. Dearing’s and Mr. Castro-Caratini’s Employment Agreements is one year and five years, respectively, from the effective date. Each Employment Agreement is automatically renewable for successive one-year terms unless either party timely terminates the agreement.
The annual base salaries of Ms. Dearing and Mr. Castro-Caratini under the Employment Agreements are $400,000 and $550,000, respectively. In addition to their base salaries, the Company may pay each of Ms. Dearing and Mr. Castro-Caratini an annual bonus in an amount determined by the Compensation Committee of the Company’s Board of Directors, based on individual goals and objectives for the Executive Officer, the Company’s performance or other relevant criteria. The annual bonuses of Ms. Dearing and Mr. Castro-Caratini may be in an amount up to 100% and 130%, respectively, of his or her base salary.
The non-competition clauses of each Executive Officer’s Employment Agreement generally preclude him or her from engaging, directly or indirectly, in the same business as the Company, including the development, ownership, leasing, management, financing or sales of MH or land lease communities, RV resorts, camping or glamping resorts, manufactured homes or marinas anywhere in the U.S. or any other country in which the Company operates during the period he or she is employed by the Company and for a period of up to 24 months following such employment; provided, however, that if he or she is terminated without cause, as defined in his or her Employment Agreement, the period of non-competition will be reduced to 12 months following his or her employment.
Each Employment Agreement provides that (a) if an Executive Officer is terminated without cause or resigns for good reason (each as defined in the Employment Agreements), he or she may continue to receive base salary payments for up to 18 months after termination of employment, and (b) if an Executive Officer dies or becomes disabled, he or she may continue to receive base salary payments for up to 24 months after termination of employment.
If there is a change of control (as defined therein) of the Company and either: (i) the Company the CFO Employment Agreement without cause within 24 months after the date of the change of control, (ii) the Executive terminates his or employment for good reason within 24 months after the date of the change of control, or (iii) the form of the change of control transaction is a sale of all or substantially all of the Company’s assets and the Company or its successor does not expressly assume an Executive Officer’s Employment Agreement, then the Company is obligated to pay such Executive Officer an amount equal to 2.99 times his or her then current base salary, and all of his or her outstanding stock options or other stock based compensation granted will become fully vested and immediately exercisable, if any.
The foregoing description of the Employment Agreements does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Employment Agreements, copies of which are attached hereto as Exhibits 10.2 and 10.3, and the terms of which is incorporated by reference herein.
Item 8.01 | Other Events. |
Acquisition
On April 8, 2022, the Company completed its previously announced acquisition of Tiger Topco 1 Limited (together with its subsidiaries, “Park Holidays”).
Park Holidays is the second largest owner and operator of holiday communities in the United Kingdom, with 40 owned and operated communities and an additional two managed communities. The majority of the communities are located in irreplaceable, seaside locations in the south of England. Park Holidays primarily rents sites for owner-occupied vacation homes on annual contracts, as well as sells vacation homes to new customers.
The acquisition values Park Holidays at an enterprise value of £950 million (or approximately $1.3 billion). As consideration for the acquisition, the Company (i) issued an aggregate of 186,044 shares of its common stock, $0.01 par value per share (the “Common Stock”), with a value of approximately $33 million as of the closing to certain individual sellers who are also members of Park Holidays’ senior management, and (ii) paid the remainder of the purchase price in cash.
All recipients of Common Stock in the Park Holidays acquisition have agreed not to sell or otherwise dispose of such Common Stock for a period of 12 months after the closing, subject to certain limited exceptions.
Equity Incentive Plan
On April 6, 2022, the Board of Directors of the Company adopted a Sub-Plan under the Company’s 2015 Equity Incentive Plan (the “UK Sub-Plan”), which is solely applicable to employee participants located in the United Kingdom, and establishes certain rules and limitations for participation by UK employees in the Company’s 2015 Equity Incentive Plan for the purpose of complying with certain UK laws.
The foregoing summary does not purport to be complete and is qualified in its entirety by reference to the full text of the UK Sub-Plan, a copy of which is attached hereto as Exhibit 10.4 and incorporated herein by reference.
Item 9.01 | Financial Statements and Exhibits. |
(d) | Exhibits: |
† | Certain schedules and exhibits have been omitted pursuant to Item 601(b)(2) of Regulation S-K because such schedules and exhibits do not contain information which is material to an investment decision or which is not otherwise disclosed in the filed agreements. The Company will furnish the omitted schedules and exhibits to the Securities and Exchange Commission upon request by the Commission. |
* | Management contract or compensatory plan or arrangement |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the undersigned hereunto duly authorized.
SUN COMMUNITIES, INC. | ||||||
Dated: April 13, 2022 | By: | /s/ Karen J. Dearing | ||||
Karen J. Dearing, Executive Vice President, Chief Financial Officer, Secretary and Treasurer |
Exhibit 10.1
EXECUTION VERSION
AMENDMENT NO. 1 TO THE FOURTH AMENDED
AND RESTATED CREDIT AGREEMENT AND OTHER LOAN DOCUMENTS
Dated as of April 7, 2022
This AMENDMENT NO. 1 TO THE FOURTH AMENDED AND RESTATED CREDIT AGREEMENT AND OTHER LOAN DOCUMENTS (this Amendment) among SUN COMMUNITIES OPERATING LIMITED PARTNERSHIP, a Michigan limited partnership (the Operating Partnership and, together with any Additional Borrowers, the Borrowers), each of the other Loan Parties from time to time party hereto, each lender from time to time party hereto (collectively, the Lenders and individually, a Lender), CITIBANK, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, CITISECURITIES LIMITED, as special administrative agent for the AUD RC Lenders; with CITIBANK, N.A., CITIZENS BANK, N.A., BOFA SECURITIES, INC., BMO CAPITAL MARKETS CORP., JPMORGAN CHASE BANK, N.A., RBC CAPITAL MARKETS1, FIFTH THIRD BANK, NATIONAL ASSOCIATION, REGIONS BANK, THE HUNTINGTON NATIONAL BANK, TRUIST SECURITIES, INC., U.S. BANK NATIONAL ASSOCIATION, WELLS FARGO BANK, NATIONAL ASSOCIATION and SUMITOMO MITSUI BANKING CORPORATION, as Joint Lead Arrangers, CITIBANK, N.A., CITIZENS BANK, N.A., BOFA SECURITIES, INC., BMO CAPITAL MARKETS CORP., JPMORGAN CHASE BANK, N.A., RBC CAPITAL MARKETS AND FIFTH THIRD BANK, NATIONAL ASSOCIATION, as Joint Bookrunners, BOFA SECURITIES, INC., CITIBANK, N.A. and SUMITOMO MITSUI BANKING CORPORATION, as Co-Sustainability Structuring Agents and BANK OF AMERICA, N.A., JPMORGAN CHASE BANK, N.A., BANK OF MONTREAL, CITIZENS BANK, N.A., ROYAL BANK OF CANADA and FIFTH THIRD BANK, NATIONAL ASSOCIATION, as co-syndication agents.
W I T N E S S E T H:
WHEREAS, the Borrowers, the Administrative Agent and Lenders entered into that certain Fourth Amended and Restated Credit Agreement dated as of June 14, 2021 (the Existing Credit Agreement). Capitalized terms not otherwise defined in this Amendment have the same meanings as specified in the Existing Credit Agreement, as amended hereby;
WHEREAS, the Parent entered into that certain Limited Payment Guaranty dated as of June 14, 2021 (the Parent Guaranty) in favor of the Administrative Agent for the benefit of the Lenders; and
WHEREAS, the Borrowers, the Administrative Agent, the Lenders and the Parent have agreed to (i) amend the Existing Credit Agreement and (ii) amend certain other Loan Documents, in each case on the terms and conditions set forth below.
NOW, THEREFORE, for good and valuable consideration, the parties hereto hereby agree as follows:
1. Amendments to Existing Credit Agreement.
1 | RBC Capital Markets is a brand name for the capital markets businesses of Royal Bank of Canada and its affiliates. |
(a) The Existing Credit Agreement and Exhibits A (Form of Committed RC Loan Notice),
B (Form of Swing Line Loan Notice), D (Form of Compliance Certificate), E-1 (Form of Assignment and Assumption), E-2 (Form of Administrative
Questionnaire), F-1 (Opinion Matters (Michigan Counsel)), F -2 (Opinion Matters (New York Counsel)), G (Form of Unencumbered Asset Certificate) and H (Form of Subsidiary Guaranty)
attached thereto are hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the underlined text (indicated textually in the same manner as the following example:
underlined text) as set forth in the pages of the Existing Credit
Agreement and such Exhibits attached hereto as Annex A (as so amended, the Amended Credit Agreement).
(b) Schedule 1.01(A) of the Existing Credit Agreement is hereby replaced in its entirety with Schedule 1.01(A) attached hereto.
(c) Schedule 1.01(B) of the Existing Credit Agreement is hereby replaced in its entirety with Schedule 1.01(B) attached hereto.
(d) Schedule 1.01(E) of the Existing Credit Agreement is hereby replaced in its entirety with Schedule 1.01(E) attached hereto.
(e) The Existing Credit Agreement is hereby amended by inserting Schedule 2.02(b) attached hereto as a schedule thereto immediately after Schedule 1.01(E) to the Existing Credit Agreement.
(f) Schedule 11.02 of the Existing Credit Agreement is hereby replaced in its entirety with Schedule 11.02 attached hereto.
(g) The Existing Credit Agreement is hereby amended by inserting Exhibit A-2 attached hereto as an exhibit thereto immediately after Exhibit A to the Existing Credit Agreement.
(h) The Existing Credit Agreement is hereby amended by replacing Exhibits C-1 through C-5 with Exhibits C-1 through C-9 attached hereto.
(i) The Existing Credit Agreement is hereby amended by inserting each of Exhibit I attached hereto and Exhibit J attached hereto as an exhibit thereto immediately after Exhibit H to the Existing Credit Agreement.
2. Reallocation of Lender Pro Rata Shares; No Novation.
As of the Amendment Effective Date, without executing any other documentation, all Commitments (whether funded or unfunded) and all Loans currently outstanding under the Existing Credit Agreement shall be reallocated among the Lenders with respect to each Tranche (as defined in the Amended Credit Agreement) as follows:
(a) On the Amendment Effective Date, each Lender that will have a greater Applicable Percentage (under and as defined in the Amended Credit Agreement) of any Tranche upon the Amendment Effective Date (after accounting for any redesignation of such Tranche necessary to accurately reflect the Tranche designations set forth in Schedule 1.01(A) of the Amended Credit Agreement) than its Applicable Percentage (under and as defined in the Existing Credit Agreement) of its Commitments to such Tranche immediately prior to the Amendment Effective Date (each, a Purchasing Bank), without executing an Assignment and Assumption, shall be deemed to have purchased assignments pro rata from each Lender that will have a smaller Applicable Percentage of such Tranche upon the Amendment Effective Date than its Applicable Percentage (under and as defined in the Existing Credit Agreement) of its Commitments (under and as defined in the Existing Credit Agreement) to such Tranche immediately prior to the Amendment Effective Date (each, a Selling Bank) in all such Selling Banks rights and obligations under the Amended Credit Agreement and the other Loan Documents as a
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Lender with respect to such Tranche (collectively, the Assigned Rights and Obligations) so that, after giving effect to such assignments, and after accounting for any new Commitments and any increased Commitments made pursuant to this Amendment, each Lender shall have its respective Commitment as set forth in Schedule 1.01(A) of the Amended Credit Agreement and a corresponding Applicable Percentage of all Loans then outstanding under such Tranche. Each such purchase hereunder shall be at par for a purchase price equal to the principal amount of the Loans and without recourse, representation or warranty, except that each Selling Bank shall be deemed to represent and warrant to each Purchasing Bank that the Assigned Rights and Obligations of such Selling Bank are not subject to any Liens created by that Selling Bank. For the avoidance of doubt, in no event shall the aggregate amount of each Lenders Loans outstanding at any time exceed its Commitment set forth in Schedule 1.01(A) of the Amended Credit Agreement.
(b) Each Selling Bank hereby waives any right to request compensation from the Borrowers pursuant to Section 3.05 of the Existing Credit Agreement for any loss, cost or expense incurred by it as a result of the reallocations set forth in this Section 2 in respect of Floating Rate Loans to the extent such reallocations take place on a day other than the last day of the Interest Period for such Floating Rate Loans.
(c) The Administrative Agent shall calculate and notify the applicable Lenders of the net amount to be paid or received by each Lender in connection with the assignments effected hereunder on the Amendment Effective Date. Each Lender required to make a payment pursuant to this Section 2 shall make the net amount of its required payment available to the Administrative Agent, in same day funds, at the office of the Administrative Agent not later than (i) in the case of the USD RC Tranche, the Multicurrency RC Tranche and the Term Loan Tranche, 12:00 P.M. (New York time), (ii) in the case of the GBP RC Tranche, 12:00 P.M. (London time) and (iii) in the case of the AUD RC Tranche, 8:00 A.M. (Sydney time); in each case on the Amendment Effective Date. The Administrative Agent shall distribute on the Amendment Effective Date the proceeds of such amounts to any Lenders entitled to receive payments pursuant to this Section 2 pro rata in proportion to the amount each such Lender is entitled to receive at the primary address set forth in Schedule 11.02 of the Amended Credit Agreement or at such other address as such Lender may request in writing to the Administrative Agent.
Nothing in this Amendment shall be construed as a discharge, extinguishment or novation of the Obligations of the Loan Parties outstanding under the Existing Credit Agreement or any instruments securing the same, which Obligations shall remain outstanding under this Amendment after the date hereof as Loans, except as expressly modified hereby or by instruments executed concurrently with this Amendment.
3. Guaranty. By its signature below, the Parent hereby consents to this Amendment and acknowledges and agrees that it is, and shall remain, liable for all of the Guaranteed Obligations as defined in the Parent Guaranty (as amended hereby) from and after the Amendment Effective Date. Except as amended hereby, nothing herein shall alter, modify, or waive any term or condition of the Parent Guaranty, which shall remain in full force and effect and is hereby ratified and confirmed in all respects by the Parent.
4. Conditions of Effectiveness. This Amendment shall become effective as of the first date (the Amendment Effective Date) on which all of the following conditions precedent shall have been satisfied:
(a) the conditions precedent set forth in Section 5.01 (excluding clause 5.01(a)(xiv)) of the Existing Credit Agreement, mutadis mutandis, shall have been satisfied to the same extent as if such conditions precedent were by their terms applicable to the occurrence of the Amendment Effective Date (including, without limitation, by deeming the reference to March 31, 2021 in each of Sections 5.01(a)(xi) and (xii) to refer instead to December 31, 2021);
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(b) the Operating Partnership (or any Subsidiary of the Operating Partnership) shall have confirmed to the Administrative Agent in writing that it intends to consummate the Park Holidays Acquisition within two Business Days following the Amendment Effective Date;
(c) the representations and warranties of the Borrowers and each other Loan Party contained in Article VI of the Credit Agreement and each other Loan Document shall be true and correct in all material respects (unless qualified as to materiality or Material Adverse Effect, in which case such representations and warranties shall be true and correct in all respects) on and as of the Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects or in all respects, as applicable, as of such earlier date, and except that for purposes of this clause (c), the representations and warranties contained in clauses (a) and (b) of Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clause (a) of Section 7.01 of the Credit Agreement;
(d) no Default exists on the Amendment Effective Date, or will exist immediately after giving effect to the consummation of the Park Holidays Acquisition on the date thereof;
(e) the Administrative Agent shall have received evidence of the termination of that certain Commitment Letter dated as of November 13, 2021 from Citigroup Global Markets Inc. and certain of the Lenders in respect of a proposed £950,000,000 senior unsecured bridge loan; and
(f) the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, counterparts of this Amendment executed by the Borrowers, the Parent and the Lenders.
Notwithstanding the foregoing, this Amendment and the amendments contained herein shall terminate on May 13, 2022 without any further action by the parties hereto if the Amendment Effective Date shall not have occurred prior to such date.
5. Reference to and Effect on the Existing Credit Agreement, the Parent Guaranty and the Other Loan Documents.
(a) This Amendment is a Loan Document. On and after the Amendment Effective Date, each reference in the Existing Credit Agreement to this Agreement, hereunder, hereof or words of like import referring to the Existing Credit Agreement, and each reference in the other Loan Documents to the Credit Agreement, thereunder, thereof or words of like import referring to the Existing Credit Agreement, shall mean and be a reference to the Existing Credit Agreement, as amended and modified by this Amendment.
(b) On and after the Amendment Effective Date, each reference in the Parent Guaranty to this Guaranty, hereunder, hereof or words of like import referring to the Parent Guaranty, and each reference in the other Loan Documents to the Guaranty, thereunder, thereof or words of like import referring to the Parent Guaranty, shall mean and be a reference to the Parent Guaranty, as amended and modified by this Amendment.
(c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.
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(d) This Amendment shall not extinguish the obligations for the payment of money outstanding under the Existing Credit Agreement, the Parent Guaranty or any of the other Loan Documents. Nothing herein contained shall be construed as a substitution or novation of the obligations outstanding under the Existing Credit Agreement, the Parent Guaranty or any of the other Loan Documents, which shall remain in full force and effect, except to any extent modified hereby or as provided in the exhibits hereto. Nothing implied in this Amendment or in any other document contemplated hereby shall be construed as a release or other discharge of any of the Borrowers or the Guarantors from the Loan Documents.
6. Ratification. The Existing Credit Agreement, the Parent Guaranty and each of the other Loan Documents (each as amended by this Amendment) are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. Except as expressly provided in this Amendment, the execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under the Existing Credit Agreement, the Parent Guaranty or any of the other Loan Documents, nor constitute a waiver of any provision of the Existing Credit Agreement, the Parent Guaranty or any of the other Loan Documents.
7. Costs and Expenses. The Borrowers agree to pay on demand all reasonable out-of-pocket costs and expenses of the Administrative Agent in connection with the preparation, execution, delivery and administration, modification and amendment of this Amendment and the other instruments and documents to be delivered hereunder (including, without limitation, the reasonable fees and expenses of counsel for the Administrative Agent) in accordance with the terms of Section 11.04 of the Existing Credit Agreement.
8. Execution in Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement. Copies of originals, including copies delivered by facsimile, .pdf, or other electronic means, shall have the same import and effect as original counterparts and shall be valid, enforceable and binding for the purposes of this Amendment. The words execution, signed, signature, and words of like import shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable Laws, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act. Notwithstanding anything contained herein to the contrary, the Administrative Agent is under no obligation to accept an electronic signature in any form or in any format unless expressly agreed to by the Administrative Agent pursuant to procedures approved by it. Without limitation of the foregoing, (a) to the extent the Administrative Agent has agreed to accept such electronic signature, the Administrative Agent and each Lender shall be entitled to rely on any such electronic signature purportedly given by or on behalf of the Borrowers and the Parent without further verification and (b) upon the request of the Administrative Agent or any Lender, any electronic signature shall be promptly followed by such manually executed counterpart.
9. Governing Law. This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above written.
BORROWER: | ||||||
SUN COMMUNITIES OPERATING LIMITED PARTNERSHIP, a Michigan limited partnership | ||||||
By: | Sun Communities, Inc., a Maryland corporation, its general partner | |||||
By: | /s/ Karen J. Dearing | |||||
Name: | Karen J. Dearing | |||||
Title: | Executive Vice President |
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GUARANTOR: | ||||
SUN COMMUNITIES, INC., a Maryland corporation, its General Partner | ||||
By: | /s/ Karen J. Dearing | |||
Name: | Karen J. Dearing | |||
Title: | Executive Vice President |
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ADMINISTRATIVE AGENT: | ||||
CITIBANK, N.A., | ||||
as Administrative Agent, a Lender, L/C Issuer and Swing Line Lender | ||||
By: | /s/ Christopher Albano | |||
Name: | Christopher Albano | |||
Title: | Authorized Signatory |
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CITISECURITIES LIMITED, as Australian Agent | ||||
By: | /s/ Alok Jhingan | |||
Name: | Alok Jhingan | |||
Title: | Director | |||
CITISECURITIES LIMITED, as Australian Agent | ||||
By: | /s/ Roderick Hill | |||
Name: | Roderick Hill | |||
Title: | Managing Director |
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LENDERS: | ||||
BANK OF AMERICA, N.A., | ||||
as a Lender, L/C Issuer and Swing Line Lender | ||||
By: | /s/ Cheryl Sneor | |||
Name: | Cheryl Sneor | |||
Title: | Vice President |
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CITIZENS BANK, N.A., | ||||
as a Lender, L/C Issuer and Swing Line Lender | ||||
By: | /s/ Nan E. Delahunt | |||
Name: | Nan E. Delahunt | |||
Title: | VP | |||
By: |
| |||
Name: | ||||
Title: |
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BANK OF MONTREAL, | ||||
as a Lender, L/C Issuer and Swing Line Lender | ||||
By: | /s/ Lloyd Baron | |||
Name: | Lloyd Baron | |||
Title: | Managing Director |
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JPMORGAN CHASE BANK, N.A., | ||||
as a Lender, L/C Issuer and Swing Line Lender | ||||
By: | /s/ Austin Lotito | |||
Name: | Austin Lotito | |||
Title: | Executive Director |
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ROYAL BANK OF CANADA, | ||||
as a Lender, L/C Issuer and Swing Line Lender | ||||
By: | /s/ William Behuniak | |||
Name: | William Behuniak | |||
Title: | Authorized Signatory |
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FIFTH THIRD BANK, NATIONAL ASSOCIATION, as a Lender | ||||
By: | /s/ Michael Glandt | |||
Name: | Michael Glandt | |||
Title: | Senior Vice President |
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THE HUNTINGTON NATIONAL BANK, | ||||
successor by merger to TCF National Bank, as a Lender | ||||
By: | /s/ Erin L. Mahon | |||
Name: | Erin L. Mahon | |||
Title: | Assistant Vice President |
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REGIONS BANK, as a Lender | ||||
By: | /s/ Nicholas Frerman | |||
Name: | Nicholas Frerman | |||
Title: | Vice President |
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[Signature Page to Amendment No. 1 to Fourth A&R Credit Agreement]
SUMITOMO MITSUI BANKING CORPORATION, | ||||
as a Lender | ||||
By: | /s/ Gail Motonaga | |||
Name: | Gail Motonaga | |||
Title: | Executive Director |
[signatures continue on next page]
[Signature Page to Amendment No. 1 to Fourth A&R Credit Agreement]
TRUIST BANK, as a Lender | ||||
By: | /s/ C. Vincent Hughes, Jr. | |||
Name: | C. Vincent Hughes, Jr. | |||
Title: | Director |
[signatures continue on next page]
[Signature Page to Amendment No. 1 to Fourth A&R Credit Agreement]
U.S. BANK NATIONAL ASSOCIATION, | ||||
as a Lender | ||||
By: | /s/ Curt M. Steiner | |||
Name: | Curt M. Steiner | |||
Title: | Senior Vice President |
[signatures continue on next page]
[Signature Page to Amendment No. 1 to Fourth A&R Credit Agreement]
WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Lender | ||||
By: | /s/ Daniel S. Dyer | |||
Name: | Daniel S. Dyer | |||
Title: | Director |
[signatures continue on next page]
[Signature Page to Amendment No. 1 to Fourth A&R Credit Agreement]
THE BANK OF NOVA SCOTIA, as a Lender | ||||
By: | /s/ Sacha Boxill | |||
Name: | Sacha Boxill | |||
Title: | Director |
[signatures continue on next page]
[Signature Page to Amendment No. 1 to Fourth A&R Credit Agreement]
GOLDMAN SACHS BANK USA, as a Lender | ||||
By: | /s/ Jonathan Dworkin | |||
Name: Jonathan Dworkin | ||||
Title: Authorized Signatory |
[signatures continue on next page]
[Signature Page to Amendment No. 1 to Fourth A&R Credit Agreement]
PNC BANK, NATIONAL ASSOCIATION, as a Lender | ||||
By: | /s/ David C. Drouillard | |||
Name: | David C. Drouillard | |||
Title: | SVP |
[signatures continue on next page]
[Signature Page to Amendment No. 1 to Fourth A&R Credit Agreement]
FLAGSTAR BANK, FSB, as a Lender | ||||
By: | /s/ Joseph Scavone | |||
Name: Joseph Scavone | ||||
Title: First Vice President |
[signatures continue on next page]
[Signature Page to Amendment No. 1 to Fourth A&R Credit Agreement]
WASHINGTON FEDERAL BANK, as a Lender | ||||
By: | /s/ M. Brad Rejebian | |||
Name: | M. Brad Rejebian | |||
Title: | SR. Vice President |
[signatures continue on next page]
[Signature Page to Amendment No. 1 to Fourth A&R Credit Agreement]
ASSOCIATED BANK, NATIONAL ASSOCIATION, as a Lender |
By: | /s/ Mitchell Vega | |||
Name: | Mitchell Vega | |||
Title: | Senior Vice President |
[signatures continue on next page]
[Signature Page to Amendment No. 1 to Fourth A&R Credit Agreement]
SYNOVUS BANK, as a Lender | ||||
By: | /s/ Robert Haley | |||
Name: Robert Haley | ||||
Title: Corporate Banking Officer |
[signatures continue on next page]
[Signature Page to Amendment No. 1 to Fourth A&R Credit Agreement]
CADENCE BANK, as a Lender | ||||
By: | /s/ Donald G. Preston | |||
Name: Donald G. Preston | ||||
Title: Senior Vice President |
[signatures continue on next page]
[Signature Page to Amendment No. 1 to Fourth A&R Credit Agreement]
FIRST COMMERCIAL BANK, LTD., NEW YORK BRANCH, as a Lender | ||||
By: | /s/ Ching Fang Liao | |||
Name: Ching Fang Liao | ||||
Title: Vice President & General Manager |
[signatures continue on next page]
[Signature Page to Amendment No. 1 to Fourth A&R Credit Agreement]
CITIBANK, N.A., SYDNEY BRANCH, as a Lender | ||||
By: | /s/ Stella Choe | |||
Name: | Stella Choe | |||
Title: | Managing Director | |||
CITIBANK, N.A., SYDNEY BRANCH, as a Lender | ||||
By: | /s/ Roderick Hill | |||
Name: | Roderick Hill | |||
Title: | Managing Director |
[signatures continue on next page]
[Signature Page to Amendment No. 1 to Fourth A&R Credit Agreement]
LAND BANK OF TAIWAN, NY BRANCH, as a Lender | ||||
By: | /s/ Kuang Wei Chang | |||
Name: | Kuang Wei Chang | |||
Title: | General Manager |
[signatures end]
[Signature Page to Amendment No. 1 to Fourth A&R Credit Agreement]
ANNEXA
AMENDED LOAN AGREEMENT
[See attached]
Annex A
CONFORMED COPY REFLECTING
AMENDMENT NO. 1 DATED AS OF APRIL 7, 2022
EXECUTION VERSION
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of June 14, 2021
As amended by AMENDMENT NO. 1 TO THE CREDIT AGREEMENT
dated as of April 7, 2022
among
SUN COMMUNITIES OPERATING LIMITED PARTNERSHIP,
as the Borrower,and
The Additional Borrowers Party Hereto,
as Borrowers,
CITIBANK, N.A.,
as Administrative Agent,
CITISECURITIES LIMITED,
as Australian Agent,
and
The Swing Line Lenders, L/C Issuers and Other Lenders Party Hereto
CITIBANK, N.A., CITIZENS BANK, N.A., BOFA SECURITIES, INC.,
BMO CAPITAL MARKETS CORP., JPMORGAN CHASE BANK, N.A.,
RBC CAPITAL
MARKETS*, FIFTH THIRD BANK,
NATIONAL ASSOCIATION, REGIONS BANK, ROYAL BANK OF
CANADA,THE HUNTINGTON NATIONAL BANK, TRUIST BANKSECURITIES, INC., U.S. BANK NATIONAL
ASSOCIATION,and
WELLS FARGO BANK, NATIONAL ASSOCIATION, and SUMITOMO MITSUI
BANKING CORPORATION,
as
Joint Lead Arrangers,
and
CITIBANK, N.A.,
CITIZENS BANK, N.A.,
BOFA SECURITIES, INC.,
BMO CAPITAL MARKETS CORP.,
and
JPMORGAN CHASE BANK, N.A., RBC CAPITAL MARKETS and FIFTH THIRD BANK,
NATIONAL ASSOCIATION,
as
Joint Bookrunners
with
BOFA SECURITIES, INC., CITIBANK, N.A. and
SUMITOMO MITSUI BANKING CORPORATION,
* | RBC Capital Markets is the global brand name for the capital markets businesses of Royal Bank of Canada and its affiliates. |
as Co-Sustainability Structuring Agents,
and
BANK OF AMERICA, N.A.,
JPMORGAN CHASE BANK, N.A., BANK OF MONTREAL, CITIZENS BANK, N.A., ROYAL
BANK OF CANADA and FIFTH THIRD BANK, NATIONAL ASSOCIATION,
and
CITIZENS BANK, N.A.,
as
as Co-Syndication Agents
TABLE OF CONTENTS
Section |
Page | |||||
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS |
| |||||
1.01 | Defined Terms | 1 | ||||
1.02 | Other Interpretive Provisions | |||||
1.03 | Accounting Terms | |||||
1.04 | Rounding | |||||
1.05 | Times of Day | |||||
1.06 | Letter of Credit Amounts | |||||
1.07 | Divisions | |||||
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS |
| |||||
2.01 | Committed RC Loans; Term Loans | |||||
2.02 | Borrowings, Conversions and Continuations of Committed RC Loans | |||||
2.03 | [Intentionally Omitted.] | |||||
2.04 | Letters of Credit | |||||
2.05 | Swing Line Loans | |||||
2.06 | Prepayments | |||||
2.07 | Termination or Reduction of Commitments | |||||
2.08 | Repayment of Loans; Mandatory Conversions | |||||
2.09 | Interest | |||||
2.10 | Fees | |||||
2.11 | Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate | |||||
2.12 | Evidence of Debt | |||||
2.13 | Payments Generally; |
|||||
2.14 | Sharing of Payments by Lenders | |||||
2.15 | Extension of |
|||||
2.16 | Increase in Commitments | |||||
2.17 | Cash Collateral | |||||
2.18 | Defaulting Lenders | |||||
2.19 | Reallocation of Lender Pro Rata Shares; No Novation | |||||
2.20 | ||||||
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY |
| |||||
3.01 | Taxes | |||||
3.02 | Illegality | |||||
3.03 | Inability to Determine Rates | |||||
3.04 | Increased Costs; Reserves on Eurocurrency Rate |
|||||
3.05 | Compensation for Losses | |||||
3.06 | Mitigation Obligations; Replacement of Lenders | |||||
3.07 | Survival |
i
ARTICLE IV. RESERVED
ARTICLE V. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS |
| |||||
5.01 | Conditions of Initial Credit Extension | |||||
5.02 | Conditions to all Credit Extensions | |||||
ARTICLE VI. REPRESENTATIONS AND WARRANTIES |
| |||||
6.01 | Existence, Qualification and Power | |||||
6.02 | Authorization; No Contravention | |||||
6.03 | Governmental Authorization; Other Consents | |||||
6.04 | Binding Effect | |||||
6.05 | Financial Statements; No Material Adverse Effect | |||||
6.06 | Litigation | |||||
6.07 | No Default | |||||
6.08 | Ownership of Property | |||||
6.09 | Environmental Compliance | |||||
6.10 | Insurance | |||||
6.11 | Taxes | |||||
6.12 | ERISA Compliance | |||||
6.13 | Subsidiaries; Equity Interests | |||||
6.14 | Margin Regulations; Investment Company Act | |||||
6.15 | Disclosure | |||||
6.16 | Compliance with Laws; Sanctions | |||||
6.17 | Solvency | |||||
6.18 | REIT Status; New York Stock Exchange Listing | |||||
6.19 | Affected Financial Institution | |||||
6.20 | Receivables Financing Transactions | |||||
6.21 | Parent Indebtedness | |||||
ARTICLE VII. AFFIRMATIVE COVENANTS |
| |||||
7.01 | Financial Statements | |||||
7.02 | Certificates; Other Information | |||||
7.03 | Notices | |||||
7.04 | Payment of Obligations | |||||
7.05 | Preservation of Existence, Etc. | |||||
7.06 | Maintenance of Properties | |||||
7.07 | Maintenance of Insurance | |||||
7.08 | Compliance with Laws | |||||
7.09 | Books and Records | |||||
7.10 | Inspection Rights | |||||
7.11 | Use of Proceeds | |||||
7.12 | Safe Harbor | |||||
7.13 | ||||||
7.14 | Additional Guarantors | |||||
7.15 | Reserved | |||||
7.16 | REIT Status; New York Stock Exchange Listing | |||||
7.17 | Reserved | |||||
7.18 | OFAC | |||||
7.19 | Post-Closing Agreements |
ii
ARTICLE VIII. NEGATIVE COVENANTS |
| |||||
8.01 | Reserved | |||||
8.02 | Parent as Holding Company | |||||
8.03 | Fundamental Changes | |||||
8.04 | Reserved | |||||
8.05 | Restricted Payments | |||||
8.06 | Change in Nature of Business | |||||
8.07 | Transactions with Affiliates | |||||
8.08 | Burdensome Agreements | |||||
8.09 | Use of Proceeds | |||||
8.10 | ||||||
8.11 | Reserved | |||||
8.12 | Accounting Changes | |||||
8.13 | Financial Covenants | |||||
8.14 | OFAC | |||||
8.15 | Receivables Financing Transactions | |||||
ARTICLE IX. EVENTS OF DEFAULT AND REMEDIES |
| |||||
9.01 | Events of Default | |||||
9.02 | Remedies Upon Event of Default | |||||
9.03 | Application of Funds | |||||
ARTICLE X. |
| |||||
10.01 | Appointment and Authority | |||||
10.02 | Rights as a Lender | |||||
10.03 | Exculpatory Provisions | |||||
10.04 | Reliance by |
|||||
10.05 | Delegation of Duties; Assignment | |||||
10.06 | Resignation of |
|||||
10.07 | Non-Reliance on |
|||||
10.08 | No Other Duties, Etc. | |||||
10.09 | Administrative Agent May File Proofs of Claim | |||||
10.10 | Collateral and Guaranty Matters | |||||
10.11 | Relationship of |
|||||
10.12 | Certain ERISA Matters | |||||
10.13 | Payments in Error | |||||
10.14 | Sustainability |
iii
ARTICLE XI. MISCELLANEOUS |
| |||||
11.01 | Amendments, Etc. | |||||
11.02 | Notices; Effectiveness; Electronic Communication | |||||
11.03 | No Waiver; Cumulative Remedies; Enforcement | |||||
11.04 | Expenses; Indemnity; Damage Waiver | |||||
11.05 | Payments Set Aside | |||||
11.06 | Successors and Assigns | |||||
11.07 | Treatment of Certain Information; Confidentiality | |||||
11.08 | Right of Setoff | |||||
11.09 | Interest Rate Limitation | |||||
11.10 | Counterparts; Integration; Effectiveness | |||||
11.11 | Survival of Representations and Warranties | |||||
11.12 | Severability | |||||
11.13 | Replacement of Lenders | |||||
11.14 | Governing Law; Jurisdiction; Etc. | |||||
11.15 | WAIVER OF JURY TRIAL | |||||
11.16 | No Advisory or Fiduciary Responsibility | |||||
11.17 | Electronic Execution of Assignments and Certain Other Documents | |||||
11.18 | USA Patriot Act; Beneficial Ownership | |||||
11.19 | ENTIRE AGREEMENT | |||||
11.20 | Acknowledgement and Consent to Bail-In of Affected Financial Institutions | |||||
11.21 | Judgment Currency | |||||
11.22 | Acknowledgement Regarding Any Supported QFCs | |||||
11.23 | Parent Liability | |||||
11.24 | Removal of Borrowers | 154 | ||||
SIGNATURES | S-1 |
iv
SCHEDULES
| ||
1.01(A) | Commitments and Applicable Percentages | |
1.01(B) | Existing Letters of Credit | |
1.01(C) | Guarantors | |
1.01(D) | Initial List of Competitors | |
1.01(E) | ||
2.02 | AUD RC Tranche Borrowings | |
4.01 | Unencumbered Assets | |
6.13 | Subsidiaries; Equity Interests | |
11.02 | Administrative Agents Office; Certain Addresses for Notices |
EXHIBITS
A-1 | Form of Committed RC Loan Notice | |
A-2 | Form of Term Loan Notice | |
B | Form of Swing Line Loan Notice | |
C-1 | Form of Note (Multicurrency Committed RC Loans US Dollars) | |
C-2 | Form of Note (Multicurrency Committed RC Loans Australian Dollars) | |
C-3 | Form of Note (Multicurrency Committed RC Loans Euro) | |
C-4 | Form of Note ( | |
C-5 | Form of Note ( | |
C-6 | Form of Note (AUD Committed RC Loans) | |
C-7 | Form of Note (GBP Committed RC Loans) | |
C-8 | Form of Note (Term Loan Tranche) | |
C-9 | Form of Note (USD Committed RC Loans) | |
D | Form of Compliance Certificate | |
E-1 | Form of Assignment and Assumption | |
E-2 | Form of Administrative Questionnaire | |
F-1 | Opinion Matters (Michigan Counsel) | |
F-2 | Opinion Matters (New York Counsel) | |
G | Form of Unencumbered Asset Certificate | |
H | Form of Subsidiary Guaranty | |
I | Form of Borrower Accession Agreement | |
J | Form of Pricing Certificate |
v
EXECUTION VERSION
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
This FOURTH AMENDED AND RESTATED CREDIT AGREEMENT (this
Agreement
) is entered into as of June 14, 2021
(as amended by that certain Amendment No. 1 to the Credit Agreement dated as of April 7,
2022
and as it may be further amended, modified, renewed, restated, replaced or extended pursuant to the terms
hereof, this
Agreement
)
among SUN COMMUNITIES OPERATING LIMITED PARTNERSHIP, a Michigan limited partnership (the
BorrowerOperating
Partnership and,
together with any Additional Borrowers (as defined below), the Borrowers), each of the other Loan Parties from time to time party hereto, each lender from time
to time party hereto (collectively, the Lenders and individually, a Lender), CITIBANK, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer,
CITISECURITIES LIMITED, as special administrative agent for the AUD RC Lenders; with CITIBANK, N.A., CITIZENS BANK, N.A., BOFA SECURITIES, INC., BMO CAPITAL MARKETS CORP., JPMORGAN CHASE BANK, N.A.,
RBC CAPITAL MARKETS, FIFTH THIRD BANK, NATIONAL ASSOCIATION, REGIONS BANK, ROYAL BANK OF CANADA, THE HUNTINGTON NATIONAL BANK, TRUIST
BANKSECURITIES,
INC., U.S. BANK NATIONAL ASSOCIATION, and WELLS FARGO
BANK, NATIONAL
ASSOCIATION, and
SUMITOMO MITSUI BANKING CORPORATION, as Joint Lead Arrangers, CITIBANK, N.A., CITIZENS BANK, N.A., BOFA SECURITIES, INC., BMO CAPITAL MARKETS CORP. AND, JPMORGAN CHASE BANK, N.A., RBC CAPITAL MARKETS and
FIFTH THIRD
BANK, NATIONAL ASSOCIATION, as Joint Bookrunners,
BOFA SECURITIES, INC., CITIBANK, N.A. and
SUMITOMO MITSUI BANKING CORPORATION, as Co-Sustainability Structuring Agents, and BANK OF AMERICA, N.A., JPMORGAN CHASE BANK, N.A., BANK OF MONTREAL and, CITIZENS BANK, N.A., as co-syndication agentsROYAL BANK
OF CANADA and FIFTH THIRD BANK, NATIONAL ASSOCIATION, as Co-Syndication Agents.
WITNESSETH THAT:
(1)
Pursuant to the Existing Credit Agreement (as defined below), the lenders party thereto agreed to extend certain commitments to make certain credit facilities
available to the Borrower; and
(2) The Borrower, the
Guarantors, the Administrative Agent, and the lenders party to the Existing Credit Agreement desire to amend and restate the Existing Credit Agreement to make certain amendments thereto.
NOW, THEREFORE, in consideration of the recitals
set forth above, which by this reference are incorporated into this Agreement set forth below, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and subject to the terms and conditions hereof
and on the basis of the representations and warranties herein set forth, the parties hereto hereby agree to amend and restate the Existing Credit Agreement to read in its entirety as follows:
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
Acquisition Agreement means that certain Agreement and Plan of Merger, dated as of September 29, 2020, by and
among the
BorrowerOperating
Partnership, Safe Harbor Marinas, LLC, Sun Communities, Inc., Sun SH LLC, the seller representative identified therein, and Safe Harbor Marinas II, LLC.
Additional Borrower means any Person that becomes a Borrower pursuant to Section 7.13.
Additional Guarantor has the meaning specified in Section 7.14.
Adjusted EBITDA means EBITDA for the Consolidated Group for the most recently ended period of four fiscal quarters minus the aggregate Annual Capital Expenditure Adjustment.
Adjusted Eurocurrency Rate means, as to any Loan denominated in any applicable currency for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) the Eurocurrency Rate for such currency for such Interest Period divided by (b) one minus the Eurocurrency Reserve Percentage.
Adjusted Daily SOFR means with respect to any Daily RFR Business Day and a US Loan (a) having a tenor of one month, a rate per annum equal to the sum of (i) SOFR for such Daily RFR Business Day plus (ii) 0.10% (10 basis points), (b) having a tenor of three months, a rate per annum equal to the sum of (i) SOFR for such Daily RFR Business Day plus (ii) 0.15% (15 basis points) and (c) having a tenor of six months, a rate per annum equal to the sum of (i) SOFR for such Daily RFR Business Day plus (ii) (0.25% (25 basis points); provided, however, that in no event shall Adjusted Daily SOFR be less than the Floor.
Adjusted Daily SONIA means with respect to any Daily RFR Business Day and a Sterling Loan (a) having a tenor of one month, a rate per annum equal to the sum of (i) SONIA for such Daily RFR Business Day plus (ii) 0.0326% (3.26 basis points), (b) having a tenor of three months, a rate per annum equal to the sum of (i) SONIA for such Daily RFR Business Day plus (ii) 0.1193% (11.93 basis points) and (c) having a tenor of six months, a rate per annum equal to the sum of (i) SONIA for such Daily RFR Business Day plus (ii) 0.2766% (27.66 basis points); provided, however, that in no event shall Adjusted Daily SONIA be less than the Floor.
Adjusted Term SOFR means, with respect to any Borrowing consisting of Term SOFR Loans for any Interest Period, an interest rate per annum equal to (a) Term SOFR for such Interest Period, plus (b)(i) if the Interest Period is one (1) month, 0.10%, (ii) if the Interest Period is three (3) months, 0.15%, and (iii) if the Interest Period is six (6) months, 0.25%; provided, however, that in no event shall Adjusted Term SOFR be less than the Floor.
Administrative Agent means Citibank in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.
Administrative Agents Office means the Administrative
Agents address and, as appropriate, account as set forth on Schedule 11.02, or such other address or account as the Administrative Agent may from time to time notify to the
BorrowerBorrowers
and the Lenders.
Administrative Questionnaire means an Administrative Questionnaire in substantially the form of Exhibit E-2 or any other form approved by the Administrative Agent.
Affected Financial Institution means (a) any EEA Financial Institution or (b) any UK Financial Institution.
Affiliate means, with respect to any 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.
Agents means the Administrative Agent and the Australian Agent.
2
Agents Spot Rate of Exchange means, in relation to
any amount denominated in any currency, and unless expressly provided otherwise, (a) the rate as determined by OANDA Corporation and made available on its website at www.oanda.com/currency/converter/ or (b) if customary in the relevant interbank marketRelevant
Interbank Market, the bid rate that appears on the Reuters (Page AFX= or Screen ECB37, as applicable) screen page for cross currency rates, in each case with respect to such currency on the
applicable date specified herein, provided that if such service or screen page ceases to be available, the Administrative Agent shall use such other service or page quoting cross currency rates as the Administrative Agent determines in its
reasonable discretion.
Aggregate Commitments means the Commitments of all the Lenders, including all funded
Commitments in respect of any Incremental Term Loan
FacilityTranche.
Agreement means this Fourth Amended and Restated Credit Agreement, as amended from time to time.
Amendment No. 1 Effective Date means April 7, 2022.
Annual Capital Expenditure Adjustment means for each (a) Marina Asset, the greater of (i) actual capital expenditures with respect to such Property for the four fiscal quarters most recently ended or (ii) 3.00% of total rental revenue from boat slips (wet and dry) and storage of Safe Harbor and its Subsidiaries for the four fiscal quarters most recently ended and (b) other Property, US$50 per Site.
Annual Period means each period beginning on January 1st and ending on December 31st (inclusive) during the term of this Agreement.
Anti-Corruption Laws shall mean all laws, rules, and regulations of any jurisdiction applicable to the BorrowerBorrowers, the Parent or their Subsidiaries from time to time concerning or relating to bribery, corruption or money laundering including, without limitation, the United Kingdom Bribery Act of 2010 and the United States
Foreign Corrupt Practices Act of 1977, as amended.
Applicable Agent means (a) the Administrative Agent in the case of the GBP RC Tranche, the Multicurrency RC Tranche, the USD RC Tranche and the Term Loan Tranche and (b) the Australian Agent in the case of the AUD RC Tranche.
Applicable Lender has the meaning set forth in Section 2.04(b)(ii).
Applicable Percentage means with respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of the aggregate Commitments represented by such Lenders Commitment to a
Tranche at such time (as the context requires), subject to adjustment as provided in Section 2.18. For the purposes of the definition of Fronting Exposure and Sections 2.01(a), 2.04, 2.05,
2.06(a), 2.10, 2.16(f), 2.18(b) and 2.19,
Applicable Percentage shall mean with respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of the aggregate Commitments in respect of USD-AAUD Committed RC Loans, GBP Committed RC Loans, USD Committed RC Loans or Multicurrency Committed RC Loans, as applicable, represented by such Lenders Commitment in respect of USD-A Committed RC Loansthe applicable Tranche at such time, subject to adjustment as provided
in Section
2.18this Agreement. For the purposes of Sections 2.01(b) and 2.06(a), Applicable
Percentage shall
mean with respect to any Lender at any time, the percentage of the aggregate Commitments in respect of Term Loans represented by such
Lenders
Commitment in respect of the applicable Tranche at such time, subject to adjustment as provided in this Agreement. If the commitment of each Lender to make Loans and the obligation of each L/C
Issuer to make L/C Credit Extensions have been terminated pursuant to Section 9.02 or if the Aggregate Commitments have expired, then the Applicable Percentage of each Lender shall be
3
determined based on the Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent assignments.
The initial Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule 1.01(A) or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.
Applicable Rate
means, subject to the Sustainability Margin Adjustment and the Sustainability Facility Fee Adjustment in accordance
with the last paragraph of this definition (provided,
however, that the Sustainability Margin Adjustment and the Sustainability Facility Fee Adjustment
shall apply only at such times as the Ratings Grid is in effect), the following percentages per annum, determined, as per the pricing grid below (the Ratings Grid), on the basis
of the Debt Rating of the Borrower or the Parent, as
applicable,Operating Partnership as set
forth in the Ratings Grid, notwithstanding any failure of the Borrower or the Parent, as applicable,Operating Partnership to maintain an Investment Grade Rating:
Level |
Debt Rating |
Applicable Rate
for Rate Loans/ Dollar RC Loans/Letter of Credit Fees |
Applicable Rate for Base Rate Loans |
Applicable Rate for Rate Incremental |
Facility Fee (bps) |
|||||||||||||
I |
≥ A-/A3 | 0.725 | % | 0.000 | % | 0.800 | % | 12.5 | ||||||||||
II |
BBB+/Baa1 | 0.775 | % | 0.000 | % | 0.850 | % | 15.0 | ||||||||||
III |
BBB/Baa2 | 0.850 | % | 0.000 | % | 0.950 | % | 20.0 | ||||||||||
IV |
BBB-/Baa3 | 1.050 | % | 0.050 | % | 1.200 | % | 25.0 | ||||||||||
V |
< BB+/Ba1 or not rated |
1.400 | % | 0.400 | % | 1.600 | % | 30.0 |
At any time that the Ratings Grid is in effect, the Applicable Rate for any Interest Period for all Loans
comprising part of the same Borrowing shall be determined by reference to the Debt Rating in effect on the first day of such Interest Period; provided, however, that (a) the Applicable Rate shall initially be at Pricing Level
III on the
ClosingAmendment
No. 1 Effective Date, (b) no change in the
Applicable Rate resulting from the Debt Rating shall be effective until three Business Days after the earlier to occur of (i) the date on which the Administrative Agent receives the certificate described in
Section 7.02(h) and (ii) the Administrative Agents actual knowledge of an applicable change in the Debt Rating.
Notwithstanding the foregoing, following the Closing Date, the
BorrowerOperating
Partnership may make a one-time written election (setting forth the date such election shall be effective) to exclusively use the leverage-based pricing
grid set forth below (the Leverage Grid), on the basis of the Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 7.02(a):
4
Level |
Leverage Ratio |
Applicable Rate
for Rate Loans/ Dollar RC Loans/Letter of Credit Fees |
Applicable Rate for Base Rate Loans |
Applicable Rate for Term Loans | ||||
1 |
< 30% | 1.175% | 0.175% | 1.175% | ||||
2 |
≥ 30% but < 35% | 1.200% | 0.200% | 1.200% | ||||
3 |
≥ 35% but < 40% | 1.250% | 0.250% | 1.200% | ||||
4 |
≥ 40% but < 45% | 1.350% | 0.350% | 1.250% | ||||
5 |
≥ 45% but < 50% | 1.450% | 0.450% | 1.400% | ||||
6 |
≥ 50% but < 55% | 1.600% | 0.600% | 1.550% | ||||
7 |
≥ 55% but < 60% | 1.800% | 0.800% | 1.700% | ||||
8 |
≥ 60% | 2.100% | 1.100% | 2.050% |
At any time that the Leverage Grid is in effect, any increase or decrease in the Applicable Rate resulting from a change in the Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 7.02(a); provided, however, that if a Compliance Certificate is not delivered when due in accordance with such Section and such failure continues for five (5) days, then, upon the request of the Required Lenders, the highest level of the Leverage Grid shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and shall remain in effect until the date on which such Compliance Certificate is delivered.
Following such election to use the Leverage Grid, the
BorrowerOperating
Partnership may make a one-time, irrevocable written election (setting forth the date such election shall be effective) to revert exclusively to the Ratings
Grid.
It is understood and agreed that (only at such times that the Ratings Grid is in effect) the Applicable Rate with respect to Loans and the Facility Fee shall be adjusted from time to time based upon the Sustainability Margin Adjustment and the Sustainability Facility Fee Adjustment, as applicable (in each case, to be calculated and applied as set forth in Section 2.20); provided, however, that in no event shall the Applicable Rate with respect to any Loans be less than zero percent per annum (0.00%).
Unless otherwise agreed pursuant to Sections 2.16 or
11.01,
the interest rates per annum applicable to any Incremental Term Loan Facility will also be determined based on the pricing grids set forth above.
Notwithstanding the foregoing, if at the end of any fiscal year
(commencing with the fiscal year ending December 31, 2021) the Borrowers Sustainability Rating for such fiscal year is more favorable than its Sustainability Rating for the immediately preceding fiscal year (the
Sustainability
Metric), in each case as certified by the Borrower to the Administrative Agent with supporting information as reasonably required by the Administrative Agent, the Applicable Rate shall decrease
by one basis point (but not to below zero percent (0%) per annum) from the Applicable Rate that would otherwise
be applicable; provided that on each annual anniversary of such change to the Applicable Rate, the Applicable Rate shall revert to the original grid set forth above unless and until the Sustainability Metric for
the preceding year has been satisfied.
Approved Fund means any Fund 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.
5
Arranger means, individually and collectively, as the context may
require, Citibank, N.A., in its capacity as a joint lead arranger and a joint bookrunner, Citizens Bank, N.A., in its capacity as a joint lead arranger and a joint bookrunner, BofA Securities, Inc., in its capacity as a joint lead arranger and joint
bookrunner, BMO Capital Markets, in its capacity as a joint lead arranger and a joint bookrunner, and JPMorgan
Chase Bank, N.A., in its capacity as a joint lead arranger and a joint bookrunner, RBC Capital Markets, in its
capacity as a joint lead arranger and a joint bookrunner and Fifth Third Bank, National Association, in its capacity as a joint lead arranger and a joint bookrunner.
Arranger Commitment Letter means the letter agreement, dated as of May 24, 2021, among the BorrowerOperating
Partnership, the Administrative Agent and certain of the Arrangers.
Assigned Rights and Obligations has the meaning specified in Section 2.19(a).
Assignee Group means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.
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 11.06(b)), and accepted (such acceptance not to be unreasonably withheld) by the Administrative Agent, in substantially the form of Exhibit E-1 or any other form approved by the Administrative Agent.
Attributable Indebtedness means, on any date, (a) in respect of any capital lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a capital lease.
AUD Committed RC Loan has the meaning specified in Section 2.01(a)(i).
Audited Financial Statements means the audited consolidated balance sheet of the Parent and its Subsidiaries for the fiscal year ended December 31, 2020, and the related consolidated statements of income or operations, shareholders equity and cash flows for such fiscal year of the Parent and its Subsidiaries, including the notes thereto.
AUD RC Commitment means, (a) with respect to any Lender at any time, the amount set forth opposite such Lenders name on Schedule 1.01(A) hereto under the caption AUD RC Commitment or (b) if such Lender has entered into one or more Assignment and Acceptances, set forth for such Lender in the Register maintained by the Administrative Agent pursuant to Section 11.06(c) as such Lenders AUD RC Commitment, as such amount may be reduced at or prior to such time pursuant to Section 2.07 or increased pursuant to Section 2.16.
AUD RC Lender means any Person that is a Lender hereunder in respect of the AUD RC Tranche in its capacity as a Lender in respect of such Tranche.
AUD RC Tranche means, at any time, the aggregate amount of the Lenders AUD RC Commitments at such time.
Australia Borrowers means the Operating Partnership and each Additional Borrower (if any) that is designated as a Borrower with respect to the AUD RC Tranche.
6
Australian Agent means Citisecurities Limited, in its capacity as a special administrative agent for the AUD RC Lenders, or any Person serving as its successor agent.
Australian Administrative Agents Office means the Australian Agents address and, as appropriate, account as set forth on Schedule 11.02, or such other address or account as the Australian Agent may from time to time notify to the Borrowers and the Lenders.
Australian Dollars and the A$ sign each means lawful currency of the Commonwealth of Australia.
Australian Dollar RC Loan means a Multicurrency Committed RC Loan denominated in
Australian Dollars.
Availability Period means, with respect to the AUD RC Tranche, the GBP RC Tranche, the Multicurrency RC Tranche and the USD RC Tranche, the period from and including the
ClosingAmendment
No. 1 Effective Date to the earliest of (a) with respect to the Multicurrency Committed RC Loan Tranche and the USD-A RC Tranche, the RCF-Ai) the RCF Maturity Date, (bii)
with respect to the USD-B RC Tranche, the RCF-B Maturity Date, (c) the date of termination of the Aggregate Commitments pursuant to Section 2.07, and (diii) the date of termination of the commitment of each Lender to make Loans and of the obligation of each L/C Issuer to make L/C Credit Extensions pursuant to Section 9.02.
Bail-In Action means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
Bail-In Legislation 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 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).
Bank Guarantees means bank guarantees, bank bonds or comparable instruments issued or to be issued pursuant to any Letter of Credit Facility by an L/C Issuer or Affiliate thereof in form and substance satisfactory to the issuer thereof.
Bankruptcy Code means Title 11 of the United
States Code entitled Bankruptcy,, as now and hereafter in effect, or any successor statute.
Base Rate means for any day a fluctuating rate per annum equal to the
highest of (a) 1⁄2 of 1% per annum above the Federal Funds Rate, (b) the rate of interest in effect for such day as publicly announced from time to time by
Citibank in New York, New York, as Citibanks base rate, and (c) the Adjusted Eurocurrency Rate for US DollarsTerm
SOFR for a one-month term in effect on such day
plus 1.00%
(taking into account any Eurocurrency Rate floor set
forth in the definition of Eurocurrency Rate)
plus 1.00%Adjusted Term SOFR). Any change in the Base Rate due to a change in
Citibanks base rate, the Federal Funds Rate or the Adjusted Eurocurrency RateTerm
SOFR, as applicable, shall be effective from and including the effective date of such change in Citibanks rate, the Federal Funds Rate or the Adjusted Eurocurrency
RateTerm SOFR, respectively.
Notwithstanding the foregoing, if the Base Rate as provided above shall ever be less than the Floor, then, the Base Rate shall be deemed to be the Floor for the purposes of
this Agreement.
7
Base Rate Committed RC Loan means a
USD-A Committed RC Loan
denominated in US Dollars that is abears interest based on
the Base Rate Loan or a USD-B Committed RC Loan that is a Base Rate Loan.
Base Rate Term SOFR Determination Date has the meaning specified in the definition of Term SOFR.
Base RateBBSY Loan means a Loan denominated in USAustralian Dollars that bears interest based on the
BaseBBSY Rate.
BBSY Rate means, with respect to any Australian Dollar
RC Loan for any Interest Period, on any date, the rate per cent per annum quoted as the average bid rate
displayed on the Thompson Reuters Monitoring System BBSY page at or about 10:30 a.m10:30 A.M., Sydney time, on the first day of such Interest Period for a
term having a tenor closest to such Interest Period. If such rate is not available for the applicable Interest
Period but is available for other Interest Periods with respect to any such Australian Dollar Loan, then the rate shall be the Interpolated Screen Rate, and if such rate is not available for other Interest Periods for any reason, the BBSY Rate will be the rate determined by the AdministrativeAustralian Agent in good faith and notified to the BorrowerOperating
Partnership on or prior to the close of business of the first day of such Interest Period to be the arithmetic mean (rounded upwards to four decimal places and expressed as a percentage rate per
annum) of the buying rates (for bills of exchange accepted by leading Australian banks) which have a tenor closest to such Interest Period quoted by three BBSY Reference Banks at or about such time on such date; provided, however, that if any such rate is
negative,. In no event shall the BBSY Rate will be deemed to be zero percent (0%) per annum be less than the Floor.
BBSY Reference Banks means each of the Commonwealth Bank of Australia, Westpac Banking Corporation, the Australia and New Zealand Banking Group Limited and the National Australia Bank Limited.
Benchmark means, initially, (a) with respect to amounts denominated in US Dollars, SOFR or the Base Rate, as applicable, (b) with respect to amounts denominated in Sterling, SONIA, (c) with respect to amounts denominated in EURO, the EURIBOR Rate, (d) with respect to amounts denominated in Australian Dollars, the BBSY Rate and (e) with respect to amounts denominated in Canadian Dollars, CDOR; provided, however, that if a replacement of an initial or subsequent Benchmark has occurred pursuant to Section 3.03(f), then Benchmark means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate. Any reference to Benchmark shall include, as applicable, the published component used in the calculation thereof.
Benchmark Replacement Date means the earliest to occur of the following events with respect to the then-current Benchmark for any currency:
(a) in the case of clause (a) of the definition of Benchmark Transition Event, the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
8
(b) in the case of clause (b) of the definition of Benchmark Transition Event, the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be no longer representative; provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (b) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
For the avoidance of doubt, (A) if the event giving rise to the Benchmark Replacement Date for any Benchmark occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such Benchmark and for such determination and (B) the Benchmark Replacement Date will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
Beneficial Ownership Certification means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
Beneficial Ownership Regulation means 31 C.F.R. § 1010.230.
BHC Act Affiliate has the meaning specified in Section 11.22(b).
Borrower Accession Agreement means the Borrower Accession Agreement, between the Administrative Agent and an Additional Borrower relating to such Additional Borrower which is to become a Borrower hereunder at any time on or after the Amendment No. 1 Effective Date, the form of which is attached hereto as Exhibit I.
BorrowerBorrowers has the meaning specified in the introductory paragraph
hereto.
Borrower Materials has the meaning specified in Section 7.02.
Borrowing means a Committed RC Borrowing, a Term Loan Borrowing or a Swing Line Borrowing, as the context may require.
Borrowing Minimum means (a) US$500,000 in the case of US Dollar Loans other than Base Rate Loans, (b) £500,000 in the case of Sterling Loans, (c) 500,000 in the case of Euro Loans, (d) CND$500,000 in the case of Canadian Dollar Loans, (e) A$500,000 in the case of Australian Dollar Loans and (f) US$100,000 (subject to Sections 2.04(c) and 2.05(c)) in the case of Base Rate Loans.
Borrowing Multiple means (a) US$100,000 (subject to Section 2.04(c) and 2.05(c)) in the case of US Dollar Loans (including Base Rate Loans), (b) £100,000 in the case of Sterling Loans, (c) 100,000 in the case of Euro Loans, (d) CND$100,000 in the case of Canadian Dollar Loans and (e) A$100,000 in the case of Australian Dollar Loans.
Business Day means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close
under the Laws of, or are in fact closed in, the state where the Administrative Agents Office is located and, (i) if such day relates to any Eurocurrency Rate
Committed RCLoan or
any Loan denominated in US Dollars or EuroSterling, means any such day that is also a Eurocurrency Banking Day and
(ii) if such day relates to any Australian Dollar RC Loan, any such day on which dealings are carried on
in the Australian interbank market and banks are open for business in Hong Kong, Sydney and Melbourne.
9
Canadian Dollar Loan means a Loan denominated in Canadian Dollars.
Canadian Dollars and the CDN$ sign each means lawful currency of Canada.
Capitalization Rate means (a) six and
sixty-five hundredths of one percent (6.65%) in the case of the Marina Assets, and (b) eight
percent (8.00%) in the case of all Real Property and rental units located in the United Kingdom and (c) five and one-half percent (5.5%) in the case
of all other Real Property and rental units.
Cash Collateralize means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Administrative Agent, any L/C Issuer or Swing Line Lender (as applicable) and the Lenders, as collateral for L/C Obligations, Obligations in respect of Swing Line Loans, or obligations of Lenders to fund participations in respect of either thereof (as the context may require), cash or deposit account balances (each in US Dollars) or, if the L/C Issuer or Swing Line Lender benefitting from such collateral shall agree in its sole discretion, other credit support (in US Dollars), in each case pursuant to documentation in form and substance satisfactory to (a) the Administrative Agent and (b) the applicable L/C Issuer or Swing Line Lender. Cash Collateral shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
Cash Equivalents means any of the following, to the extent owned by the applicable Loan Party or any of its Subsidiaries free and clear of all Liens (other than Liens, if any, created under the Loan Documents) and having a maturity of not greater than 90 days from the date of issuance thereof: (a) readily marketable direct obligations of the Government of the United States or any agency or instrumentality thereof or obligations unconditionally guaranteed by the full faith and credit of the Government of the United States, (b) certificates of deposit of or time deposits with any commercial bank that is a Lender or a member of the Federal Reserve System, issues (or the parent of which issues) commercial paper rated as described in clause (c) below, is organized under the laws of the United States or any State thereof and has combined capital and surplus of at least US$1,000,000,000 or (c) commercial paper in an aggregate amount of not more than US$50,000,000 per issuer outstanding at any time, issued by any corporation organized under the laws of any State of the United States and rated at least Prime-1 (or the then equivalent grade) by Moodys or A-1 (or the then equivalent grade) by S&P.
CDOR means, with respect to any Loan in Canadian Dollars, the average rate per annum (rounded upward, if necessary, to the nearest 1/100 of 1% per annum, if such average is not such a multiple) applicable to bankers acceptances for a term equivalent to the Interest Period of such Loan appearing on the Reuters Screen CDOR Page (as defined in the International Swap Dealer Association, Inc. definitions, as modified and amended from time to time) as of 10:15 A.M. (Toronto time), on the first day of such Interest Period, or if such date is not a Business Day, then on the immediately preceding Business Day or, if for any reason such rate does not appear on the Reuters Screen CDOR Page as contemplated, then CDOR on any date shall be calculated as the rate of interest reasonably determined by the Administrative Agent as the rate quoted as of 10:15 A.M. (Toronto time) on such day to leading banks on the basis of the discount amount at which such banks are then offering to purchase Canadian Dollar denominated bankers acceptances that have a comparable aggregate face amount to the principal amount of such Loan in Canadian Dollars and the same term to maturity as the term of the Interest Period for such Loan in Canadian Dollars, or if such date is not a Business Day, then on the immediately preceding Business Day; provided that if CDOR is not available for the applicable Interest Period but is available for other Interest Periods with respect to any such Canadian Dollar Loan, then the rate shall be the Interpolated Screen Rate. In no event shall CDOR be less than the Floor.
CDOR Loan shall mean a Loan denominated in Canadian Dollars that bears interest based on CDOR.
10
Central Bank Rate means (a) with respect to Loans denominated in Sterling, the Bank of Englands Bank Rate as published by the Bank of England from time to time, (b) with respect to Loans denominated in Euro, (i) the applicable Central Bank Rate Adjustment plus, as selected by the Administrative Agent, (ii)(x) the fixed rate for the main refinancing operations of the European Central Bank (or any successor thereto), or, if that rate is not published, the minimum bid rate for the main refinancing operations of the European Central Bank (or any successor thereto), each as published by the European Central Bank (or any successor thereto) from time to time, (y) the rate for the marginal lending facility of the European Central Bank (or any successor thereto), as published by the European Central Bank (or any successor thereto) from time to time or (z) the rate for the deposit facility of the central banking system of the Participating Member States, as published by the European Central Bank (or any successor thereto) from time to time and (c) with respect to Loans denominated in any other currency, (i) the applicable Central Bank Rate Adjustment plus (ii) a central bank rate as determined by the Applicable Agent in its reasonable discretion; provided, however, that in no event shall the Central Bank Rate be less than the Floor for any Loan.
Central Bank Rate Adjustment means, (a) in relation to the applicable Central Bank Rate prevailing at close of business on any Daily RFR Business Day with respect to Loans denominated in Sterling, the twenty percent (20%) trimmed arithmetic mean (calculated by the Administrative Agent) of the applicable Central Bank Rate Spreads for the five most immediately preceding Daily RFR Business Days for which the Daily RFR Rate is available and (b) in relation to Loans denominated in any other currency, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Applicable Agent giving due consideration to (i) the historical difference between the Benchmark which, as of the date of determination, is unavailable due to a Market Disruption Event or is subject to the circumstances described in Section 3.03(a), and the Central Bank Rate for the applicable currency over the prior twelve month period and/or (ii) any evolving or then-prevailing market convention for determining such spread adjustment, or method for calculating or determining such spread adjustment for syndicated credit facilities denominated in the applicable currency at such time.
Central Bank Rate Spread means, in relation to any Daily RFR Business Day and the Daily RFR Rate, the difference (expressed as a percentage rate per annum) calculated by the Administrative Agent of (a) the Daily RFR Rate for that Daily RFR Business Day and (b) the Central Bank Rate prevailing at the close of business on that Daily RFR Business Day (relevant to the Daily RFR Rate).
Change in Law means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, 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) by any Governmental Authority; 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 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 regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a Change in Law, regardless of the date enacted, adopted, issued or implemented.
Change of Control means an event or series of events by which:
(a) during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Parent cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or
11
nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at
the time of such election or nomination at least a majority of that board or equivalent governing body., except for any such change resulting from (x) death or disability of any such member, (y) satisfaction of any requirement for the majority of the members of the board of directors of the Parent to qualify
under applicable law as independent directors, or (z) the replacement of any member of the board of
directors of the Parent who is an officer or employee of the Parent with any other officer or employee of the Parent or any of its Affiliates;
(b) the Parent fails at any time to own, directly or indirectly, at least 70% of the Equity Interests of the Operating Partnership, each other Borrower and each Property Owner, free
and clear of all Liens (other than any Liens in favor of the Administrative Agent, for the benefit of the Lenders), or ceases to be the general partner of the
BorrowerOperating
Partnership or ceases to Control all management and financial decisions of the
Operating Partnership, each other Borrower and each
Property Owner.;
or
(c) the BorrowerOperating
Partnership fails at any time to own, directly or indirectly, at least 9070% of the Equity Interests of each other Borrower and each Property Owner, free and clear of all Liens
(other than any Liens in favor of the Administrative Agent, for the benefit of the Lenders).
Citibank means Citibank, N.A. and its successors.
Closing Date means June 14, 2021.
Code means the Internal Revenue Code of 1986.
Commitment
means, as the context may require, (a) as to each L/C Issuer,
its Letter of Credit Commitment, (b) as to each Swing Line Lender, its Swing Line Commitment and, (c) as to each Lender, its Revolving Credit Commitment (if any) and
(d) as to each Lender, its Term Loan Commitment (if any), in each case in an aggregate principal amount at any one time outstanding not to exceed the respective amounts set forth opposite such Lenders name on Schedule 1.01(A) or in the Assignment and
Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement (including, without limitation, Sections 2.16, 2.18 and 2.20).
Commitment Increase has the meaning specified in Section 2.16(f).
Committed RC Borrowing means a borrowing consisting of simultaneous Committed RC Loans of the same Type and denominated in
the same currency, and in the case of Floating Rate Loans, having the same Interest Period, made by each of the Lenders pursuant to
Section 2.01(a).
Committed RC Loan means each USD-AAUD Committed RC Loan, each
USD-BGBP Committed RC Loan, each USD Committed RC Loan and each Multicurrency Committed RC Loan, individually or collectively, as the context requires.
Committed RC Loan Notice means a notice of (a) a Committed RC Borrowing, (b) a conversion of Committed RC Loans
from one Type to the other, or (c) a continuation of Floating Rate Committed RC Loans, pursuant to
Section 2.02(a), which shall be substantially in the form of Exhibit A.
Commodity Exchange Act means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
12
Competitor means any competitor or an Affiliate of a competitor of the
BorrowerOperating
Partnership, or any Subsidiary of the BorrowerOperating Partnership that is in the same or a similar line of business
as the
BorrowerOperating
Partnership or any Subsidiary designated in writing from time to time by the BorrowerOperating Partnership to the Administrative Agent and the Lenders
(including by posting such notice to the Platform) not less than two (2) Business Days prior to the applicable Trade Date; provided that Competitor shall exclude any Person that the BorrowerOperating
Partnership has designated as no longer being a Competitor by written notice delivered to the Administrative Agent from time to time.
Competitor List has the meaning specified in Section 11.06(h)(iv).
Compliance Certificate means a certificate substantially in the form of Exhibit D.
Consent Request Date has the meaning specified in Section 11.01.
Consolidated Group means the Loan Parties and their consolidated Subsidiaries.
Construction in Progress means each formerly unimproved Real Property or portion thereof at which new site improvements have commenced. Site improvements include, but are not limited to, land development, installation of roads, utilities, or other infrastructure developments and the development of new homesites. A Real Property or portion thereof will cease to be classified as Construction in Progress on the earliest to occur of (A) the time that such Real Property or portion thereof has an occupancy rate of greater than seventy-five percent (75%), (B) one hundred eighty (180) days after completion of site improvements at such Real Property or portion thereof, or (C) such Real Property or portion thereof has been classified as Construction in Progress for more than eighteen (18) months, in which case, if such site improvements are not completed, such Real Property or portion thereof will be classified as unimproved land holdings.
Contractual Obligation means, 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 11.22(b).
Covered Party has the meaning specified in Section 11.22(a).
Credit Extension means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
Customary Carve-out Agreement has the meaning specified in the definition of Guarantee.
Daily RFR Business Day means, for any Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to (a) Sterling, any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which banks are closed for general business in London and (b) US Dollars, any U.S. Government Securities Business Day.
Daily RFR Interest Payment Date means, with respect to each Daily RFR Loan, (a)(i) having a tenor of one month, each date that is on the numerically corresponding day in each calendar month that is one month after the Borrowing of such Loan, (ii) having a tenor of three months, each date that is on the
13
numerically corresponding day in each calendar month that is three months after the Borrowing of such Loan or (iii) having a tenor of six months, (x) each date that is on the numerically corresponding day in each calendar month that is six months after the Borrowing of such Loan and (y) in the case of Daily RFR Loans under the Multicurrency RC Tranche and the USD RC Tranche, each date that is on the numerically corresponding day in each calendar month that is three months after the Borrowing of such Loan; provided that, as to any such Daily RFR Loan described in clauses (i), (ii) or (iii), (A) if any such date would be a day other than a Business Day, such date shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such date shall be the next preceding Business Day and (B) the Daily RFR Interest Payment Date with respect to any Borrowing that occurs on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in any applicable calendar month) shall be the last Business Day of any such succeeding applicable calendar month; provided that for purposes of this definition, the date of a Borrowing of a Loan initially shall be the date on which such Loan is made and thereafter shall be the effective date of the most recent conversion or continuation of such Loan, and (b) the applicable Maturity Date.
Daily RFR Loan means a Loan that bears interest based on the Daily RFR Rate.
Daily RFR Rate means, for any day (a Daily RFR Rate Day), for any Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to,
(a) US Dollars, a rate per annum equal to Adjusted Daily SOFR for the day (such day i ) that is five (5) Daily RFR Business Days prior to (A) if such Daily RFR Rate Day is a Daily RFR Business Day, such Daily RFR Rate Day or (B) if such Daily RFR Rate Day is not a Daily RFR Business Day, the Daily RFR Business Day immediately preceding such Daily RFR Rate Day, in each case, using the SOFR component of such Adjusted Daily SOFR that is published by the SOFR Administrator on the SOFR Administrators Website.
(b) Sterling, a rate per annum equal to Adjusted Daily SONIA for the day (such day i ) that is five (5) Daily RFR Business Days prior to (A) if such Daily RFR Rate Day is a Daily RFR Business Day, such Daily RFR Rate Day or (B) if such Daily RFR Rate Day is not a Daily RFR Business Day, the Daily RFR Business Day immediately preceding such Daily RFR Rate Day, in each case, using the SONIA component of such Adjusted Daily SONIA that is published by the SONIA Administrator on the SONIA Administrators Website.
If by 5:00 pm (local time for the applicable RFR) on the second (2nd ) Daily RFR Business Day immediately following any day i , the RFR in respect of such day i has not been published on the applicable RFR Administrators Website and a Benchmark Replacement Date with respect to the applicable Daily RFR Rate has not occurred, then the RFR for such day i will be the RFR as published in respect of the first preceding Daily RFR Business Day for which such RFR was published on the applicable RFR Administrators Website; provided that any RFR determined pursuant to this sentence shall be utilized for purposes of calculation of the Daily RFR Rate for no more than three (3) consecutive RFR Rate Days. Any change in the Daily RFR Rate due to a change in the applicable RFR shall be effective from and including the effective date of such change in such RFR without notice to the Borrowers.
Daily RFR Rate Day has the meaning specified in the definition of Daily RFR Rate.
Daily Usage means, as of any date, the quotient (expressed as a percentage) of (a) the Total Revolving Loan Outstanding on such date, divided by (b) the aggregate Revolving Credit Commitments in respect of the Revolving Credit Facility on such date.
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Debt Rating shall mean, as of any date, with respect to either
Moodys or S&P, the most recent credit rating assigned to the senior, unsecured, non-credit enhanced, long-term debt of the Parent or the
BorrowerOperating
Partnership issued by such rating agency prior to such date; provided, however, that (a) if the Debt Ratings issued by Moodys and S&P differ and such difference is
less than two levels, the higher of such Debt Ratings shall apply and (b) if the Debt Ratings issued by Moodys and S&P differ and such difference is two or more levels, the Debt Rating one level below the higher of such Debt Ratings
shall apply. At any time, if either of Moodys or S&P shall no longer perform the functions of a securities rating agency, then (x) the
BorrowerOperating
Partnership and the Administrative Agent shall promptly negotiate in good faith to agree upon a substitute rating agency or agencies (and to correlate the system of ratings of each substitute
rating agency with that of the rating agency being replaced), and (y) pending such amendment, (i) the Debt Rating of the other rating agency described herein, if one has been provided, shall continue to apply and (ii) if such Debt
Rating is one of the ratings identified in the definition of Investment Grade Rating, then the Parent or the BorrowerOperating Partnership, as applicable, will be deemed to have achieved an
Investment Grade Rating during such time.
Debtor Relief Laws means the Bankruptcy Code of the United States, the Bankruptcy and Insolvency Act (Canada), the Companies Creditors Arrangement Act (Canada), and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States, Canada or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
Default means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
Default Rate means (a) when used with respect to Obligations other than Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per annum; provided, however, that with respect to a Floating Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2% per annum, and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus 2% per annum.
Default Right has the meaning specified in Section 11.22(b).
Defaulting Lender means, subject to
Section 2.18(b), any Lender that, as determined by the Administrative Agent, (a) has failed to perform any of its funding obligations hereunder, including in respect of its Loans or participations in respect of Letters
of Credit or Swing Line Loans, within two Business Days of the date required to be funded by it hereunder unless such Lender notifies the Administrative Agent and the
BorrowerOperating
Partnership in writing that such failure is the result of such Lenders determination that one or more conditions precedent to funding (each of which conditions precedent, together with any
applicable default, shall be specifically identified in such writing) has not been satisfied, (b) has notified the BorrowerOperating Partnership, or the Administrative Agent that it does not
intend to comply with its funding obligations or has made a public statement to that effect with respect to its funding obligations hereunder or under other agreements in which it commits to extend credit (unless such writing or public statement
relates to such Lenders obligation to fund a Loan hereunder and states that such position is based on such Lenders determination that a condition precedent to funding (which condition precedent, together with any applicable default,
shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after request by the Administrative Agent, to confirm in a manner satisfactory to the Administrative Agent that it
will comply with its funding obligations (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the BorrowerOperating
Partnership), or (d) has, or has a direct or indirect parent company that has, (i) become
15
the subject of a proceeding under any Debtor Relief Law, (ii) become insolvent, or is generally unable to pay its debts as they become due, or admits in writing its inability to pay its
debts as they become due, or makes a general assignment for the benefit of its creditors, (iii) had a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization
or liquidation of its business or a custodian appointed for it, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such capacity, (iv) taken any action in furtherance of, or
indicated its consent to, approval of or acquiescence in any such proceeding or appointment, or (v) 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; provided that in each case, neither the reallocation of funding obligations provided for in Section 2.18(a) as a result of a Lenders being a Defaulting
Lender nor the performance by non-Defaulting Lenders of such reallocated funding obligations will by themselves cause the relevant Defaulting Lender to become a
non-Defaulting Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any of clauses (a) through (d) above will be conclusive and binding absent
manifest error, and such Lender will be deemed to be a Defaulting Lender (subject to Section 2.18(b)) upon notification of such determination by the Administrative Agent to the BorrowerOperating
Partnership, the L/C Issuers, the Swing Line Lenders and the Lenders.
Departing Lender has the meaning specified in Section 11.13.
Division and Divide each refer to a division of a limited liability company into two or more newly formed or existing limited liability companies pursuant a plan of division or otherwise.
Dollar, US Dollar and US$ mean lawful money of the United States.
EBITDA means for the Consolidated Group, without duplication, the sum of (a) Net Income of the Consolidated Group, in each case, excluding (i) any non-recurring or extraordinary gains and losses for such period, (ii) any income or gain and any loss in each case resulting from early extinguishment of indebtedness and (iii) any net income or gain or any loss resulting from a swap or other derivative contract (including by virtue of a termination thereof), plus (b) an amount which, in the determination of Net Income for such period pursuant to clause (a) above, has been deducted for or in connection with (i) Interest Expense (plus, amortization of deferred financing costs, to the extent included in the determination of Interest Expense per GAAP), (ii) income taxes, and (iii) depreciation and amortization inclusive of intangibles, all determined in accordance with GAAP for the prior four quarters, plus (c) the Consolidated Groups pro rata share of the above attributable to interests in Unconsolidated Affiliates, plus (d) non-cash deferred 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, (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.
Eligible Assignee means any Person that meets the requirements to be an assignee under Section 11.06(b)(iii), and (v) (subject to such consents, if any, as may be required under Section 11.06(b)(iii)). For the avoidance of doubt, any Competitor is subject to Section 11.06(h).
Eligible Property means Property that meets and continues to satisfy each of the following criteria:
(a) Property types: manufactured home community, recreational vehicle community or, caravan community, park holiday
community, marina, or any other similar property type,
in each case owned or leased under a Qualifying Ground
Lease by a Subsidiary of the BorrowerOperating Partnership.
(b) The Subsidiary that owns the interest (fee or leasehold) in such Property must be either (i) wholly-owned, directly or indirectly, by the Borrower (or beOperating Partnership
and/or the Parent or (ii) a subsidiary of the BorrowerOperating Partnership and/or the Parent that (x) is controlled exclusively by the Borrower and/by
the Parent, the Operating Partnership or one or more wholly-owned Subsidiaries of the Borrower,
includingOperating Partnership or the Parent, and the Operating Partnership and/or the Parent
has control over the operating activities of such Subsidiary and the ability of such Subsidiary to dispose of, pledge or otherwise encumber assets, incur, repay and prepay debt, provide guarantees and pay dividends and distributions
in each case without any requirement for the consent of any other party or entity) or (y) that for accounting purposes is consolidated with the Operating Partnership in accordance with GAAP.
(c) The Subsidiary that owns or leases such Property and the Property itself must be located in the United States (including its territories), Canada, Australia, The Bahamas, the United Kingdom (including its territories), Austria, Belgium, Denmark, Finland, France, Germany, Ireland, Italy, Luxembourg, The Netherlands, Poland, Portugal, Spain, Sweden or such other jurisdiction as is agreed to by the Required Lenders; provided, however, that the foregoing shall be subject at all times to the limitations in clauses (c) and (d) of the definition of Unencumbered Pool NOI.
(d) The Property (i) is not subject to any Liens other than Permitted Liens and any Permitted Senior Financing Provision and (ii) is not subject to any Negative Pledge (other than any Permitted Senior Financing Provision). For the avoidance of doubt, the Property may be subject to a ground lease.
(e) The Property may not be subject to a Material Property Event or a Material Environmental Event.
(f) The Subsidiary that owns or leases the Property may not incur or otherwise be liable for any Indebtedness other than Senior Financing Obligations, the Obligations and other Indebtedness permitted to be incurred by Loan Parties and their Subsidiaries hereunder.
(g) None of the Equity Interests of the Subsidiary that owns the Property are directly or indirectly subject to any Lien or any Negative Pledge (other than Permitted Senior Financing Provisions).
For any Property that
does not satisfy all the above-listed criteria to be added as an Unencumbered Asset after the ClosingAmendment
No. 1 Effective Date, upon request of the BorrowerOperating
Partnership, such Property may be included as an Unencumbered Asset with the written consent of the Required Lenders, provided that the Required Lenders will have ten
(10) Business Days from the receipt of such request to approve/disapprove the designation of a Property as an Unencumbered Asset. If any Lender fails to respond during the 10-day period, such Lender shall
be deemed to have approved such designation.
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Notwithstanding anything set forth above, the Real Property set forth on Schedule
4.01 (which includes the Real Property included as Borrowing Base Assets under and as defined in the Existing Credit Agreement immediately prior to the effectiveness of this Agreement, the marinas and related assets included in and defined as
Qualified Assets under the Existing SHM Credit Agreement as of the Closing Date and certain additional real property and related assets as requested by the
BorrowerOperating
Partnership) shall be deemed Eligible Property and Initial Unencumbered Assets for purposes of this Agreement without meeting all qualifications for inclusion of such Real Property as Eligible
Property as of the date hereof, provided that the ongoing inclusion of such Real Property as Eligible Properties and Unencumbered Assets shall be contingent in each case upon the applicable Loan Party not permitting any new or
additional exceptions of such Real Property to meet such criteria for qualification beyond those exceptions that exist on the date hereof.
Environmental Laws means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions applicable to the Loan Parties, their Subsidiaries and their real property and operations, relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.
Environmental Liability means any liability, contingent or otherwise (including any liability for damages, costs of
environmental remediation, fines, penalties or indemnities), of the
BorrowerOperating
Partnership, any other Loan Party or any of their respective Subsidiaries 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, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.
ERISA means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor statute.
ERISA Affiliate means any trade or business (whether or not incorporated) under common control with
the BorrowerOperating
Partnership within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
ERISA Event means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of the
BorrowerOperating
Partnership or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a substantial employer as defined in
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Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the BorrowerOperating
Partnership or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment
of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan is considered an at-risk plan or a plan in
endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; or (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent
under Section 4007 of ERISA, upon the
BorrowerOperating
Partnership or any ERISA Affiliate.
Erroneous Payment has the meaning specified in Section 10.13(a).
Erroneous Payment Deficiency Assignment has the meaning specified in Section 10.13(d).
Erroneous Payment Impacted Class has the meaning specified in Section 10.13(d).
Erroneous Payment Return Deficiency has the meaning specified in Section 10.13(d).
Erroneous Payment Subrogation Rights has the meaning specified in Section 10.13(d).
EU Bail-In Legislation Schedule means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
EURIBOR has the meaning specified in the definition of Eurocurrency Rate.
EURIBOR Rate has the meaning specified in the definition of Eurocurrency Rate.
Euro and mean the single currency of the Participating Member States.
Euro RC Loan means a
Multicurrency Committed RC Loan denominated in Euro.
Eurocurrency Banking Day means, (i) for Obligations, interest, fees, commissions or other amounts denominated in, or
calculated with respect to, US Dollars Sterling, a London Banking Day, (ii) for Obligations, interest,
fees, commissions or other amounts denominated in, or calculated with respect to, Euros, a TARGET Day.
Eurocurrency
Rate means, with respect to any Borrowing for any Interest Period:
denominated
in (a) denominated in US Dollars, the greater of
(i) the rate per annum equal to the London interbank offered rate as administered by the IBA (or any other Person that takes over the administration of such rate) for US Dollars for a period equal in length to such Interest Period, as displayed on the applicable Reuters
page (or on any successor or substitute page or service providing such quotations as determined by the Administrative Agent from time to time; (in each case, the USD LIBOR Rate)
at approximately 11:00 a.m. (London time) two Eurocurrency Banking Days prior to the commencement of
such Interest Period and (ii) zero percent (0%) per annum; and
(b) denominated in Euros, the greater of (i) the rate per annum equal to the Euro Interbank Offered Rate (EURIBOR) as administered by the European Money Markets Institute (or any other Person that takes over
the administration of such rate) for a period equal in length to such Interest Period, as
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displayed on the applicable Reuters page (or on any successor or substitute page or service providing such quotations as determined by the Administrative Agent from time to time; (in each case,
the EURIBOR Rate) at approximately 11:00
a.m11:00 A.M. (Brussels time) two
Eurocurrency Banking Days prior to the commencement of such Interest Period and (ii) zero percent (0%) per
annum; provided that
if EURIBOR is not available for the applicable Interest Period but is available for other Interest Periods with respect to any such Borrowing, then the rate shall be the Interpolated Screen Rate and
(ii) the Floor.
Eurocurrency Rate Committed RC
Loan means a Loan that bears interest at a rate based on the Adjusted Eurocurrency Rate other than pursuant to clause (c) of the definition of Base
Rate.
Eurocurrency Reserve Percentage means, for any day during any Interest Period, the reserve percentage in effect on such day, whether or not applicable to any Lender, under regulations issued from time to time by the FRB for determining the maximum reserve requirement (including any emergency, special, supplemental or other marginal reserve requirement) with respect to eurocurrency funding (currently referred to as Eurocurrency Liabilities in Regulation D) or any other reserve ratio or analogous requirement of any central banking or financial regulatory authority imposed in respect of the maintenance of the Commitments or the funding of the Loans. The Adjusted Eurocurrency Rate for each outstanding Loan shall be adjusted automatically as of the effective date of any change in the Eurocurrency Reserve Percentage.
Euro Loan means a Loan denominated in Euro.
Event of Default has the meaning specified in Section 9.01.
Excluded Swap Obligation means, with respect to any Guarantor, 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 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) by virtue of such Guarantors failure for any reason not to constitute an eligible contract participant as defined in the Commodity Exchange Act at the time the Guaranty of such Guarantor becomes effective with respect to such related Swap Obligation.
Excluded Taxes means, with respect to the Administrative Agent, any Lender, any L/C Issuer or any other recipient of any
payment to be made by or on account of any obligation of
thea Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political
subdivision thereof) under the Laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located, (b) any branch profits taxes imposed by the
United States or any similar tax imposed by any other jurisdiction in which
thesuch Borrower is located, (c) any backup withholding tax that is required by the Code to be withheld from amounts payable to a Lender that has failed to comply with clause (A) of
Section 3.01(e)(iii), and (d) in the case of a Foreign Lender (other than an assignee pursuant to a request by thea Borrower under Section 11.13), any United
States withholding tax that (i) is required to be imposed on amounts payable to such Foreign Lender pursuant to the Laws in force at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office), including,
without limitation, FATCA, or (ii) is attributable to such Foreign Lenders failure or inability (other than as a result of a Change in Law) to comply with clause (B) of Section 3.01(e)(iii), except to
the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional amounts from
thesuch Borrower with respect to such withholding tax pursuant to Section 3.01(a)(ii) or (c).
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Existing Credit Agreement means that certain Third Amended and Restated
Credit Agreement dated as of May 21, 2019, as amended, among the
BorrowerOperating
Partnership, Citibank, as administrative agent, and a syndicate of lenders.
Existing L/C Issuers means Citibank and Citizens Bank, N.A.
Existing Letters of Credit means those letters of credit described on Schedule 1.01(B).
Existing
RCF
Maturity Date has the meaning specified in Section 2.15. RCF-A
Existing SHM Credit Agreement means that certain Credit Agreement dated as of September 14, 2018, as amended, by and among Safe Harbor, the financial institutions party thereto, as lenders, and Citizens Bank, N.A., as administrative agent.
Extension Option has the meaning specified in Section 2.15.
Facility means, at any time, the aggregate amount
of the LendersAggregate Commitments in respect of Committed RC Loans at such time.
Facility Exposure means (a) with respect to each Tranche, at any date of determination, the sum of the Outstanding
Amount of all Committed RC Loans or Term Loans, as applicable,
relating to such Tranche and, in the case of the USD-AMulticurrency RC Tranche, such amount plus the sum of the Outstanding
Amount of all Multicurrency L/C Obligations and the Swing
Line Exposure, and (b) with respect to the entire Facility, at any date of determination, the sum of the Outstanding Amount of all Loans and the Outstanding Amount of all L/C Obligations.
Facility Fee has the meaning specified in Section 2.10(a).
Fair Market Value means, with respect to a security listed on The NASDAQ Stock Markets National Market System or having trading privileges on the New York Stock Exchange, the NYSE American, or the Australian Securities Exchange, the price of such security as reported on such exchange or market by any widely recognized reporting method customarily relied upon by financial institutions.
FASB ASC means the Accounting Standards Codification of the Financial Accounting Standards Board.
FATCA means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.
Federal Funds Rate means, for any day, the rate per annum
equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day;
provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be an analogous rate determined by the Administrative Agent with reference to another commercially available source or sources designated by
the Administrative Agent. Notwithstanding the foregoing, if at any time the Federal Funds Rate calculated as provided above shall be lower than
zero percent (0%) per annum,ever be less than the Floor, then the Federal Funds Rate shall be deemed
to be zero percent (0%) per
annumthe Floor for the purposes of this
Agreement.
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Fee Letters means those certain Fee Letters dated as of May 24, 2021
between certain of the Arrangers and the
BorrowerOperating
Partnership, as the same may be amended, restated or replaced from time to time, and any subsequent letter agreement executed and delivered by the BorrowerOperating
Partnership or an affiliate of the BorrowerOperating Partnership and to which the Administrative Agent or an
Arranger is a party, as the same may be amended, restated or replaced from time to time.
Fixed
Charges means for the Consolidated Group, without duplication, the sum of (a) Interest Expense, plus (b) scheduled cash principal payments, exclusive of balloon payments, plus (c) dividends and distributions on
preferred stock, if any (excluding dividends and distributions with respect to (i) preferred Equity Interests in the BorrowerOperating Partnership to the extent such preferred Equity Interests are
treated as equity interests in accordance with GAAP, (ii) Series A-1 Preferred Units (Kentland), (iii) Preferred Units (Aspen), (iv) Series A-3 Preferred Units
(Morgan), (v) Preferred Interests and Equity (Northgate), (vi) Series A-4 Preferred Units, (vii) Series C Preferred Units, (viii) Series D Preferred Units, (ix) Series E Preferred Units,
(x) Series F Preferred Units, (xi) Series G Preferred Units, (xii) Series H Preferred Units, (xiii) Series I Preferred Units, (xiv) Series J Preferred Units and (xv) any additional preferred units or stock issued in the
future that are substantially comparable to the excluded interests referred to in (ii) through (xiv), but only to the extent the holders of any of (ii) through (xv) do not currently, at the date of calculation, have the right to redeem for
cash or trigger a redemption for cash on such date (excluding any triggers relating to death)), plus (d) the Consolidated Groups pro rata share of the above attributable to interests in Unconsolidated Affiliates, all for the most recently ended period of four fiscal quarters.
Floating Rate means, (a) with respect to Australian Dollar RC Loans, the BBSY Rate and, (b) with respect to Eurocurrency Rate Committed
RCEuro Loans, the Adjusted Eurocurrency
Rate,
(c) with respect to Canadian Dollar Loans, CDOR and (d) with respect to
US Dollar Loans, Adjusted Term SOFR.
Floating Rate Loan means each Loan that is not a Basebears interest at a
Floating Rate Loan.
Floor means (a) with respect to (i) Adjusted Daily SONIA, (ii) Adjusted Daily SOFR, (iii) the EURIBOR Rate, (iv) the BBSY Rate, (v) CDOR, (vi) Adjusted Term SOFR, (vii) the Central Bank Rate and (viii) the Federal Funds Rate, a rate of interest equal to zero percent (0.0%) per annum and (b) with respect to the Base Rate, one percent (1.00%) per annum.
Foreign Lender means any Lender that is organized under the Laws of a jurisdiction other than that in which the applicable Borrower is resident for tax purposes (including such a Lender when acting in the capacity of an L/C Issuer). For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.
FRB means the Board of Governors of the Federal Reserve System of the United States.
Fronting Exposure means, at any time there is a Defaulting Lender, (a) with respect to any L/C Issuer, such Defaulting Lenders Applicable Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lenders participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to any Swing Line Lender, such Defaulting Lenders Applicable Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lenders participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.
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Fund means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
Funding
Deadline means, with respect to Funds From
Operationsthe immediately prior twelve month period, the Consolidated
Groups Net Income (or loss),
plus depreciation and amortization, inclusive of intangibles and after adjustments for unconsolidated partnerships and joint ventures as hereafter provided. For purposes hereof, (a)
Funds From Operations shall include, and be adjusted to take into account, the Borrowers interests in unconsolidated partnerships
and joint ventures, on the same basis as consolidated partnerships and subsidiaries, as provided in the
white paper issued in April 2002 by the National Association of Real Estate Investment Trusts, and (b) net
income (or loss) shall not include gains (or, if applicable, losses) resulting from or in connection with
(i) restructuring of indebtedness,
(ii) sales of property,
(iii) sales or redemptions of preferred stock,
(iv) non-cash charges, or
(v) non-recurring charges. For purposes hereof, Funds From Operations shall not include any adjustments for below market ground leases.any
Borrowing,
(a) 10:00 A.M. (New York time) on the date of such Borrowing in the case of a Borrowing consisting of
Sterling Loans under the Multicurrency RC Tranche or the Term Loan Tranche, (b) 2:00 P.M. (New York time) on the date of such Borrowing in the case of a Borrowing consisting of Canadian Dollar Loans under the Multicurrency RC Tranche, (c) 2:00 P.M.
(New York time) on the date of such Borrowing in the case of a Borrowing consisting of US Dollar Loans
under the Multicurrency RC Tranche or the USD RC Tranche, (d) 10:00 A.M. (New York time) on the date of such Borrowing in the case of a Borrowing consisting of Euro Loans under the Multicurrency RC Tranche, (e) 8:00 A.M. (Sydney time) on the date of
such Borrowing consisting of Australian Dollar Loans in the case of a Borrowing under the AUD RC Tranche and (f) 12:00 P.M. (London time) on the date of such Borrowing in the case of a Borrowing consisting of Sterling Loans under the GBP RC
Tranche.
GAAP means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable the preparation of the financial statements referred to in Section 6.05(a).
GBP Committed RC Loan has the meaning specified in Section 2.01(a)(ii).
GBP RC Commitment means, (a) with respect to any Lender at any time, the amount set forth opposite such Lenders name on Schedule 1.01(A) hereto under the caption GBP RC Commitment or (b) if such Lender has entered into one or more Assignment and Acceptances, set forth for such Lender in the Register maintained by the Administrative Agent pursuant to Section 11.06(c) as such Lenders GBP RC Commitment, as such amount may be reduced at or prior to such time pursuant to Section 2.07 or increased pursuant to Section 2.16.
GBP RC Lender means any Person that is a Lender hereunder in respect of the GBP RC Tranche in its capacity as a Lender in respect of such Tranche.
GBP RC Tranche means, at any time, the aggregate amount of the Lenders GBP RC Commitments at such time.
Governmental Authority means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
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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 means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the primary obligor) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary 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 GAAP. Notwithstanding anything contained herein to the contrary (and for the avoidance of doubt), obligations under customary non-recourse carveout guaranties given in connection with the incurrence of debt for borrowed money (each, a Customary Carve-out Agreement) shall not be deemed to be Guarantees unless and until a claim for payment has been made thereunder or a Responsible Officer has become aware of any other event giving rise to recourse liability thereunder, at which time such obligations shall be deemed a Guarantee in the amount of such claim or liability. The term Guarantee as a verb has a corresponding meaning.
Guaranties means the Parent Guaranty, and, if applicable, the Operating Partnership Guaranty and/or the Subsidiary Guaranty, and
Guaranty means any one of the Guaranties. There is no Subsidiary Guaranty or Operating
Partnership Guaranty as of the ClosingAmendment
No. 1 Effective Date.
Guarantors means, collectively, the Parent, the Operating Partnership (if the Operating Partnership Guaranty has been delivered) and each Subsidiary Guarantor, if any, and Guarantor means any one of the Guarantors. The initial Guarantors are listed on Schedule 1.01(C).
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, excessive moisture, mildew, mold, microbial contamination, microbial growth or other fungi, or biological agents that can or are known to produce mycotoxins or other bioaerosols, such as antigens, bacteria, amoebae and microbial organic compounds or other similar matter, in each case that poses a material risk to human health or the environment, or negatively impacts the value of a Property in any material respect, and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
IBA means the ICE Benchmark Administration.
ICC has the meaning specified in Section 2.04(g).
ICC Rule has the meaning specified in Section 2.04(g).
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Improved Land Holdings means all vacant developed homesites owned by the members of the Consolidated Group other than homesites classified as Construction in Progress whose value shall be determined by taking (a)(1) the net book value of all homesites owned by the members of the Consolidated Group other than homesites classified as Construction in Progress divided by (2) the total number of all homesites owned by the members of the Consolidated Group other than homesites classified as Construction in Progress, multiplied by (b) the total number of such vacant developed homesites other than homesites classified as Construction in Progress.
Incremental Term Loan
Amendment has the meaning
specified in Section 2.16(g)(iii).
Incremental Term Loan Date has the meaning specified in Section 2.16(a).
Incremental Term Loan
Facility has the meaning specified in
Section 2.16(a).
Indebtedness means, for the Consolidated Group, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
(a) all obligations for borrowed money and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments;
(b) all direct or contingent obligations under letters of credit (including standby and commercial), bankers acceptances and similar instruments (including bank guaranties and surety bonds) to the extent such instruments or agreements support financial, rather than performance, obligations;
(c) net obligations under any Swap Contract (exclusive of any obligations secured by cash collateral and Excluded Swap Obligations);
(d) all obligations to pay the deferred purchase price of property or services;
(e) capital leases, Synthetic Lease Obligations and Synthetic Debt;
(f) all obligations to purchase, redeem, retire, defease or otherwise make any cash payment in respect of any Equity Interest, to the extent (i) the holder of such Equity Interest has the right to cause such Equity Interest to be purchased, redeemed, retired, or defeased for cash prior to the earliest Maturity Date (other than by reason of a put option or similar option triggered by a change of control) or (ii) such Equity Interest has a scheduled date prior to the earliest Maturity Date on which a purchase, redemption, retirement, or defeasance for cash must be made, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference, plus accrued and unpaid dividends, if any;
(g) indebtedness (excluding prepaid interest thereon) secured by a Lien on property (including indebtedness arising under conditional sales or other title retention agreements) whether or not such indebtedness has been assumed by the grantor of the Lien or is limited in recourse; and
(h) all Guarantees in respect of any of the foregoing.
For all purposes hereof, Indebtedness shall include the Consolidated Groups pro rata share of the foregoing items and components attributable to Indebtedness of Unconsolidated Affiliates, but shall not include (x) any Indebtedness due from any entity which is included in the Consolidated Group to any other entity included in the Consolidated Group and (y) Indebtedness attributable to certain Unconsolidated Affiliates to the extent provided in the last sentence of the definition of Total Asset Value (and in an amount not to exceed ten percent (10%) of Total Asset Value at any time). The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of any capital lease or Synthetic Lease Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date.
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Indemnified Taxes means all Taxes other than Other Taxes and Excluded Taxes.
Indemnitees has the meaning specified in Section 11.04(b).
Information has the meaning specified in Section 11.07.
Initial Unencumbered Assets means the Properties listed on Schedule 4.01, and Initial Unencumbered Asset means any one of the Initial Unencumbered Assets.
Interest Expense means, without duplication, total cash interest expense of the Consolidated Group determined in accordance with GAAP (including for the avoidance of doubt capitalized interest and interest expense attributable to the Consolidated Groups ownership interests in Unconsolidated Affiliates), all for the most recently ended period of four fiscal quarters.
Interest Payment Date means, (a) as
to any Base Rate Loan, the last Business Day of each March, June, September and December and the applicable Maturity Date, (b) as to any
EurocurrencyFloating
Rate Committed RC Loan, the last day of each Interest Period
therefor and, in the case of any Interest Period of more than three months duration, each day prior to the last day of such Interest Period that occurs at three-month intervals after the first day of such Interest Period, and the applicable
Maturity Date
and, (c) as
to any Daily RFR Loan, each Daily RFR Interest Payment Date and the applicable Maturity Date, and
(d) as to any Swing Line Loan, the day that such Swing Line Loan is required to be repaid.
Interest Period means as to each Floating Rate
Loan comprising part of the same Borrowing, the period commencing
on (and including) the date such Floating Rate Loan is
disbursed or converted to or continued as a Floating Rate Loan and ending on the date 7 days (for(but excluding) the date
(i) in the case of any Term SOFR Loan, one, three or six months thereafter, (ii) in the case of any BBSY Loan, one, two, three, six or twelve months thereafter, (iii) in the case of any Eurocurrency Rate Committed RC Loans only) orLoan,
one, three, six or twelve months thereafter or (iv) in the case of any CDOR Loan, one, two, three, six or twelve months thereafter; in each case subject to availability and as selected by the
applicable Borrower in its Committed RC Loan Notice or Term Loan Notice:
(a) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day
unless, in the case of a Floating Rate Loan, such Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Business Day;
(b) any Interest Period pertaining to a Floating Rate Loan that begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and
(a) whenever the first day of any Interest Period occurs on a day of an initial calendar month for which there is no numerically corresponding day in the calendar month that succeeds such initial calendar month by the number of months equal to the number of months in such Interest Period, such Interest Period shall end on the last Business Day of such succeeding calendar month;
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(b) no tenor that has been removed from this definition pursuant to Section 3.03(f) shall be permitted to be elected for such Loan; and
(c)
(c) no Interest Period shall extend beyond the applicable Maturity Date.
Notwithstanding anything to the contrary in this Agreement,
(a) each Rollover Interest Period for the applicable Rollover Borrowing shall end on the applicable date specified therefor on
Schedule
1.01(E) hereto and (b) as of the Closingas of the Amendment
No. 1 Effective Date, all Interest Periods (under
and as defined in the Existing Credit
Agreementherein immediately prior to the Amendment No. 1 Effective Date) in respect of outstanding Floating Rate Loans
(under and as defined in the Existing Credit Agreement) other than Rollover Borrowingsherein immediately prior to the Amendment No. 1 Effective Date) shall end on and as of the ClosingAmendment No. 1 Effective Date and the applicable Lenders (under and as defined in the Existing Credit Agreement) immediately prior to the Closing Date shall be entitled to payment
from the Borrower of all accrued interest on any such Loans (under and as defined in the Existing Credit Agreementherein immediately prior to the Amendment No. 1 Effective Date) outstanding immediately prior to the ClosingAmendment No. 1 Effective Date on the ClosingAmendment No. 1 Effective Date; provided, however, that no Lender shall
have a claim pursuant to Section 3.05 as a result of the termination of such Interest Periods referred to in this clause (b)sentence.
Interpolated Screen Rate means, in relation to any Floating Rate Loan denominated in Canadian Dollars, Euro or Australian Dollars, for any Interest Period for which the Floating Rate is to be based on a Screen Rate, the rate (rounded off to two (2) decimal places) which results from interpolating on a linear basis between:
(a) the applicable Screen Rate for the longest period (for which such Screen Rate is available) which is less than the Interest Period; and
(b) the applicable Screen Rate for the shortest period (for which such Screen Rate is available) which exceeds the Interest Period,
each at (i) with respect to any Floating Rate Advance that is denominated in Canadian Dollars, as of 10:15 A.M. (Toronto time), on the first day of such Interest Period or if such date is not a Business Day, then on the immediately preceding Business Day, (ii) with respect to any Floating Rate Loan that is denominated in Euro, at approximately 11:00 A.M. (Brussels time) two Eurocurrency Banking Days prior to the commencement of such Interest Period or (iii) with respect to any Floating Rate Advance that is denominated in Australian Dollars, 10:30 A.M. (Sydney time) on the first day of such Interest Period.
Investment means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of capital stock or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.
Investment Grade Rating shall mean a Debt Rating of BBB- or better from S&P or a Debt Rating of Baa3 or better from Moodys.
IRS means the United States Internal Revenue Service.
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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).
ISS has the meaning specified in the definition of Sustainability Rating.
Issuer Documents means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by any L/C Issuer and the applicable Borrower (or any Subsidiary) or in favor of such L/C Issuer and relating to such Letter of Credit.
Laws means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
L/C Advance means, with respect to each Multicurrency RC Lender, such Lenders funding of its participation in any L/C Borrowing in accordance with its Applicable Percentage.
L/C Borrowing means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Committed RC Borrowing.
L/C Credit Extension
means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
L/C Issuer means (a) the Existing L/C Issuers, (b) Bank of America, N.A., (c) Bank of Montreal, (d) JPMorgan
Chase Bank, N.A., (e) Royal Bank of Canada, (f) any successor
issuer of Letters of Credit
hereunderunder the
Multicurrency RC Tranche or (fg) any other Lender approved as an L/C Issuer by the Administrative
Agent and the
BorrowerOperating
Partnership.
L/C Obligations means, as of any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts thereunder, including all L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be outstanding in the amount so remaining available to be drawn.
L/C Credit Extension means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
L/C Purchasing Notice Deadline means 11:00 A.M. (New York time) three Business Days prior to the proposed funding date by Lenders.
Lender has the meaning specified in the introductory paragraph hereto and, as the context requires, includes the Swing Line Lenders.
Lender Party means any Lender, Swing Line Lender or L/C Issuer.
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Lending Office means, as to any Lender, the office or offices of such
Lender described as such in such Lenders Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the
BorrowerBorrowers
and the
AdministrativeApplicable
Agent.
Letter of Credit means any standby letter of credit denominated in US Dollars, Sterling, Canadian Dollars or Euro issued hereunder and shall include the Existing Letters of Credit.
Letter of Credit Application means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by any L/C Issuer.
Letter of Credit Commitment means, with respect to
the any L/C Issuer at any time, the amount set forth opposite the applicablesuch L/C Issuers name on Schedule 1.01(A) hereto under the caption Letter of Credit Commitment, or, if such L/C Issuer has entered into one or more Assignment and Assumptions, set forth for
such L/C Issuer in the Register maintained by the Administrative Agent pursuant to Section 11.06(c) as such L/C Issuers Letter of Credit Commitment, as such amount may be reduced at or prior to such time
pursuant to Section 2.07.
Letter of Credit Facility means, at any time, an amount equal to the lesser of (a) the aggregate amount of the L/C Issuers Letter of Credit Commitments at such time, and (b) the Letter of Credit Sublimit. The Letter of Credit Facility shall be a Subfacility of the Multicurrency RC Tranche.
Letter of Credit Sublimit means the US Dollar Equivalent of US$200,000,000 in respect of the Multicurrency Committed RC Loans. The Letter of Credit Sublimit is part of, and not in addition to, the aggregate Multicurrency RC Commitments.
Letter of Credit Expiration Date means the day that is seven (7) days prior to the RCF-ARCF Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day), provided that if a Letter of Credit is Cash Collateralized in accordance with
Section 2.17 at least 30 days prior to the applicable RCF-ARCF Maturity Date the Letter of Credit Expiration Date may be up to one
(1) year after the applicable
RCF-ARCF Maturity Date.
Letter of Credit Fee has the meaning specified in Section 2.04(h).
Letters of CreditLetter
Sublimit means US$200,000,000 in respect of the USD-A
Committed RC Loans. The Letter of Credit Sublimit is part of, and not in addition to, the aggregate USD-A RC
Commitments has the meaning specified in
Section 2.04(a)(i).
Leverage Grid has the meaning specified in the definition of Applicable Rate.
Leverage Ratio means, as of any date of determination, the ratio of (a) Total Indebtedness to (b) Total Asset Value.
Lien means any mortgage, deed of trust, pledge, hypothecation, collateral assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).
Loan means an extension of credit by a Lender to
thea Borrower under Article II in the form of a Committed RC Loan, a Term
Loan or a Swing Line Loan.
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Loan Documents means this Agreement (including the schedules and exhibits hereto), each Note, each Issuer Document, any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.17 of this Agreement, the Arranger Commitment Letter, the Guaranties and each other document or instrument now or hereafter executed and delivered by a Loan Party in connection with, pursuant to or relating to this Agreement, in each case, as amended.
Loan Parties means, collectively,
theeach Borrower and each Guarantor.
London Banking Day means any day on which dealings in US Dollar deposits are conducted by and between banks in the London interbank market.
Marina Assets means all Marina Property and Marina Real Estate Assets included in the SHM Assets and any future Marina Property and Marina Real Estate Assets acquired, directly or indirectly, by the Consolidated Group in connection with the marina business.
Marina Cap has the meaning specified in the definition of Unencumbered Pool NOI.
Marina Property means each marina asset or marina-related asset owned, directly or indirectly, by the Consolidated Group in connection with the marina business other than the Marina Real Estate Assets.
Marina Real Estate Assets means any interest (fee or leasehold) then owned, directly or indirectly, by the Consolidated Group in connection with the marina business.
Marketable Securities means (a) common or preferred Equity Interests of Persons located in, and formed under the laws of, any State of the United States or America, the District of Columbia or the Commonwealth of Australia, which Equity Interests are subject to price quotations (quoted at least daily) on The NASDAQ Stock Markets National Market System or have trading privileges on the New York Stock Exchange, the NYSE American or the Australian Securities Exchange and (b) convertible securities which can be converted at any time into common or preferred Equity Interests of the type described in the immediately preceding clause (a).
Market Disruption Event means in connection with:
(a) Sterling Loans, the Administrative Agent has determined (which determination shall be conclusive and binding absent manifest error) that the Daily RFR Rate for Sterling cannot be determined pursuant to the definition thereof;
(b) Australian Dollar Loans, (i) at or about 10:30 A.M. (Sydney time) on the first day of the relevant Interest Period the average rate published on the Reuters screen BBSW page is not available and the Australian Agent is unable to determine BBR for Australian Dollars and the relevant period or (ii) before close of business in Sydney on first day of the relevant Interest Period, the Australian Agent receives notifications from the applicable Required Tranche Lenders that the cost to them of funding their participation in the Borrowing from whatever source they may reasonably select would be in excess of BBR;
(c) Canadian Dollar Loans, (i) at or about 11:00 A.M. (Toronto time) on the first day of the relevant Interest Period the average rate published on the Reuters screen CDOR page is not available and the Administrative Agent is unable to determine CDOR for Canadian Dollars and the relevant period or (ii) before close of business in Toronto on the first day of the relevant Interest Period, the Administrative Agent receives notifications from the applicable Required Tranche Lenders that the cost to them of obtaining matching deposits in the Relevant Interbank Market would be in excess of CDOR;
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(d) Euro Loans, on or prior to the first day of any applicable Interest Period, (i) the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that (A) by reason of circumstances affecting the Relevant Interbank Market, the Eurocurrency Rate cannot be determined pursuant to the definition thereof, including because the Screen Rate for Euro is not available or published on a current basis or (B) a fundamental change has occurred in the foreign exchange or Relevant Interbank Market with respect to Euro (including changes in national or international financial, political or economic conditions or currency exchange rates or exchange controls), or (C) the applicable Required Tranche Lenders determine that for any reason in connection with any request for a Eurocurrency Rate Loan or a continuation thereof that (I) deposits in Euro are not being offered to banks in the Relevant Interbank Market, amount and Interest Period of such Eurocurrency Rate Loan, or (II) the Eurocurrency Rate or Interest Period with respect to a proposed Eurocurrency Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, and, in each case, the Required Tranche Lenders have provided notice of such determination to the Administrative Agent; and
(e) US Dollar Loans (i) that are Daily RFR Loans the Administrative Agent has determined (which determination shall be conclusive and binding absent manifest error) that the Daily RFR Rate for SOFR or Adjusted Daily SOFR cannot be determined pursuant to the definition thereof or (ii) that are Term SOFR Loans, on or prior to the first day of any applicable Interest Period, (A) the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that (I) Adjusted Term SOFR or Term SOFR cannot be determined pursuant to the definition thereof, including because the Screen Rate for US Dollars is not available or published on a current basis or (II) a fundamental change has occurred in the foreign exchange market with respect to such currency (including changes in national or international financial, political or economic conditions or currency exchange rates or exchange controls), or (III) the applicable Required Tranche Lenders determine that for any reason in connection with any request for a Term SOFR Loan or a continuation thereof that Term SOFR or the Interest Period with respect to a proposed Term SOFR Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, and, in each case, the Required Tranche Lenders have provided notice of such determination to the Administrative Agent.
Material Acquisition means the acquisition by the
BorrowerOperating
Partnership or the Parent, directly or indirectly through any Subsidiary, in a single transaction or in a series of related transactions, of any of (a) all or any substantial portion of the
property of, or a line of business or division of, or any other property of, another Person, (b) one or more properties from another Person, or (c) at least a majority of the voting Equity Interests of another Person, in any such case
whether or not involving a merger or consolidation with such other Person, in which the value of the assets acquired in such acquisition is greater than or equal to US$500,000,000 (or the US Dollar Equivalent thereof for any amount denominated in any foreign currency).
Material Adverse Effect means (A) a material adverse change in, or a material adverse effect on, the operations,
business, assets, properties, liabilities (actual or contingent), or condition (financial or otherwise) of the Parent or the BorrowerOperating Partnership, in each case with its respective Subsidiaries,
taken as a whole; (B) a material adverse effect on the rights and remedies of the Administrative Agent or any Lender under any Loan Documents, or of the ability of the Loan Parties taken as a whole to perform their obligations under any Loan
Documents; or (C) a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Documents to which it is a party; provided, that the
COVID-19 health emergency, and the responses of governmental authorities thereto, shall not be deemed to be a Material Adverse Effect if it does not give rise to the effects listed above.
Material Environmental Event means, with respect to any Unencumbered Asset, (a) a violation of any Environmental Law with respect to such Unencumbered Asset, or (b) the presence of any Hazardous Materials on, about, or under such Unencumbered Asset that, under or pursuant to any Environmental Law, would require remediation, if in the case of either (a) or (b), such event or circumstance could reasonably be expected to have a Material Property Event.
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Material Property Event means, with respect to any Unencumbered Asset, the occurrence of any event or circumstance after the date of this Agreement that could reasonably be expected to have a (a) material adverse effect with respect to the financial condition or the operations of such Unencumbered Asset, (b) material adverse effect on the value of such Unencumbered Asset, or (c) material adverse effect on the ownership of such Unencumbered Asset.
Maturity Date means (a) October 11, 2024
(the RCF-B Maturity Date) in the case of the USD-B RC Tranche, and (b) in the case of the Multicurrency Committed
RC
LoanTranche, the AUD RC
Tranche, the GBP RC Tranche and the USD-A USD RC Tranche, the later of (i) June 14
April 7
,
20252026 (the
RCF-ARCF
Maturity Date), and (ii) if the RCF-ARCF Maturity Date is extended pursuant to
Section 2.15, such extended maturity date as determined pursuant to such Section,
(b) in the case of the Term Loan Tranche, April 7, 2025 (the
Term
Loan Maturity
Date)
; provided, however, that if the Park Holidays
Acquisition is not consummated on or prior to April 9, 2022, the Term Loan Maturity Date shall be
April 7,
2022; provided
further that, in each case, if any such date is not a Business Day, the
applicable Maturity Date shall be the immediately preceding Business Day.
Maximum Available Amount means, at any date of determination, with respect to the making of any Loan or the issuance or
renewal of any Letter of Credit, the maximum principal amount available under the Facility equal to the lesser of (i) the Aggregate Commitments, and (ii) the maximum principal amount under the Facility that would permit the BorrowerOperating
Partnership to maintain pro forma compliance with all financial covenants set forth in Section 8.13 immediately after the funding of the applicable Loan or
the issuance or renewal of the applicable Letter of Credit.
Maximum Facility Fee Adjustment has the meaning specified in Section 2.20.
Maximum Margin Adjustment has the meaning specified in Section 2.20.
Moodys means Moodys Investors Service, Inc. and any successor thereto.
Multicurrency Borrowers means the Operating Partnership and each Additional Borrower (if any) that is designated as a Borrower with respect to the Multicurrency RC Tranche, the Multicurrency Swing Line Facility or the Letter of Credit Facility.
Multicurrency Committed RC Loan has the meaning specified in Section 2.01(a)(iii).
Multicurrency RC Credit Commitment means, (a) with respect to any Lender at any time, the amount set forth opposite such Lenders name on Schedule 1.01(A) hereto under the caption Multicurrency RC
Credit Commitment or (b) if such Lender has entered into one or more Assignment and Acceptances, set
forth for such Lender in the Register maintained by the Administrative Agent pursuant to Section 11.06(c) as such Lenders Multicurrency RC
Credit Commitment, as such amount may be reduced at or prior to such time pursuant to
Section 2.07 or increased pursuant to Section 2.16.
Multicurrency RC Credit Tranche means, at any time, the aggregate amount of the
Lenders Multicurrency RC Credit Commitments at such time.
Multicurrency RC Lender means any Person that is a Lender hereunder
in respect of the Multicurrency RC Credit Tranche in its capacity as a Lender in respect of such Tranche.
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Multicurrency RC Tranche means, at any time, the aggregate amount of the Lenders Multicurrency RC Commitments at such time.
Multicurrency Swing Line Facility means, at any time, an amount equal to the lesser of (a) the aggregate amount of the Multicurrency Swing Line Commitments at such time, and (b) US$200,000,000, as such amount may be reduced at or prior to such time pursuant to Section 2.05. The Multicurrency Swing Line Facility shall be a Subfacility of the Multicurrency RC Tranche.
Multiemployer Plan means any
employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the BorrowerOperating Partnership or any ERISA Affiliate makes or is obligated to
make contributions, or during the preceding five plan years, has made or been obligated to make contributions.
Multiple
Employer Plan means a Plan which has two or more contributing sponsors (including the BorrowerOperating Partnership or any ERISA Affiliate) at least two of whom are
not under common control, as such a plan is described in Section 4064 of ERISA.
Negative Pledge means, with respect to a given asset, a Contractual Obligation that contains a covenant binding on the Parent and its Subsidiaries that prohibits Liens on such asset, other than (a) any such covenant contained in a Contractual Obligation granting or relating to a particular Lien which affects only the property that is the subject of such Lien and (b) any such covenant that does not apply to, or otherwise permits, Liens which may secure the Obligations now or in the future; provided, however, that an agreement described in clause (d) of the definition of Permitted Senior Financing Provision shall not constitute a Negative Pledge.
Net Income means the net income (or loss) of the Consolidated Group for the subject period; provided, however, that Net Income shall exclude (a) extraordinary gains and extraordinary losses for such period, (b) the net income of any Subsidiary of the Parent during such period to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary of such income is not permitted by operation of the terms of its organization documents or any agreement, instrument or law applicable to such Subsidiary during such period, except that the Parents equity in any net loss of any such Subsidiary for such period shall be included in determining Net Income, and (c) any income (or loss) for such period of any Person if such Person is not a Subsidiary of the Parent, except that the Parents equity in the net income of any such Person for such period shall be included in Net Income up to the aggregate amount of cash actually distributed by such Person during such period to the Parent or a Subsidiary thereof as a dividend or other distribution (and in the case of a dividend or other distribution to a Subsidiary of the Parent, such Subsidiary is not precluded from further distributing such amount to the Parent as described in clause (b) of this proviso).
Net Operating Income means for any Real Property (including any Marina Real Estate Asset), Marina Property
and rental units for any period, an amount equal to (a) the aggregate gross revenues from the operations of such Real Property (including any Marina Real Estate Asset) or Marina Property and the rental of such rental units during such period
(including, without limitation, any revenue received or earned in respect of service and repair of marine vessels, cabin and boat rentals, brokerage and referral fees, commercial
lease income, expense reimbursements received from tenants of rental units, retail sales, fuel sales,
restaurant sales,) or
franchise income and other property related use fees or income), minus (b) the sum of all expenses and other proper charges incurred in connection with the operation of such Real Property (including any Marina Real Estate Asset), Marina Property and rental units
during such period (including, without limitation, expenses expected to be reimbursed by tenants of rental units, accruals for real estate taxes and insurance, but excluding any management fees actually paid in cash, debt service charges, income
taxes, state taxes, depreciation, amortization and other non-cash expenses), which expenses
33
and accruals shall be calculated in accordance with GAAP. For purposes of calculating the aggregate Net Operating Income, no more than twenty percent (20%) of the aggregate Net Operating Income for the Real Property (including any Marina Real Estate Asset), Marina Property and rental units may be derived from rental units, with any excess over such limit being deducted from the aggregate Net Operating Income.
Non-Consenting Lender has the meaning specified in Section 11.01.
Non-BorrowerNon-Operating Partnership
Subsidiaries means all of the Parents Subsidiaries (other than the BorrowerOperating Partnership and any Subsidiary of the BorrowerOperating
Partnership in which the Parent indirectly holds Equity Interests through the BorrowerOperating Partnership).
Non-Consenting Lender has the meaning specified in Section 11.01.
Non-Recourse Indebtedness means, with respect to a Person, Indebtedness for borrowed money in respect of which recourse for payment (except for customary exceptions to nonrecourse liability, such as (but not limited to) fraud, misapplication of funds and environmental indemnities, and customary exceptions which trigger recourse for payment of the entire indebtedness, such as (but not limited to) bankruptcy, insolvency, receivership or other similar events) is contractually limited to specific assets of such Person encumbered by a Lien securing such Indebtedness.
Northgate JV Agreement means, that certain limited liability company agreement of Sun NG RV Resorts LLC, a Delaware limited liability company, dated as of June 1, 2018, by and among Sun NG LLC, a Michigan limited liability Company and NG Sun, LLC a Michigan limited liability company, as amended.
Note means a promissory note made by
thea Borrower in favor of a Lender evidencing Loans made by such Lender, substantially in the form of Exhibit C-1 with respect to the Multicurrency Committed RC Loans denominated in US Dollars, Exhibit C-2
with respect to Australian
DollarMulticurrency Committed RC
Loans denominated in Australian Dollars, Exhibit C-3 with respect to
EuroMulticurrency
Committed RC Loans denominated in Euro, Exhibit C-4 with respect to USD-AMulticurrency Committed RC Loans anddenominated in
Sterling, Exhibit C-5 with respect to USD-BMulticurrency Committed RC Loans denominated in Canadian Dollars, Exhibit C-6 with
respect to AUD Committed RC Loans, Exhibit C-7 with respect to GBP Committed RC Loans, Exhibit C-8 with respect to Term Loans, and Exhibit
C-9 with respect to USD Committed RC Loans.
Notice Deadline means:
(a) with respect to a conversion of a US Dollar Loan from one Type to another, 1:00 P.M. (New York time) on the requested date of such conversion in the case of a conversion from Term SOFR Loans to Base Rate Loans or 10:00 A.M. (New York time) three U.S. Government Securities Business Days prior to the requested date of any such conversion in the case of a conversion from Base Rate Loans to Term SOFR Loans;
(b) with respect to a continuation of a Floating Rate Loan, two U.S. Government Securities Business Days prior to the requested date of any such continuation;
(c) with respect to a Borrowing:
(i) 1:00 P.M. (New York time) on the date of the proposed Borrowing, in the case of any Borrowing consisting of Base Rate Loans;
34
(ii) 10:00 A.M. (New York time) two U.S. Government Securities Business Days prior to the requested date of borrowing for any Term SOFR Loans or Daily RFR Loans denominated in US Dollars;
(iii) 10:00 A.M. (Sydney time) on the fourth Business Day prior to the proposed Borrowing, in the case of a Borrowing consisting of BBSY Loans under the AUD RC Tranche;
(iv) 10:00 A.M. (New York time) on the fourth Business Day prior to the proposed Borrowing, in the case of a Borrowing consisting of BBSY Loans under the Multicurrency RC Tranche;
(v) 10:00 A.M. (New York time) on the fourth Business Day prior to the proposed Borrowing, in the case of a Borrowing consisting of Eurocurrency Rate Loans;
(vi) 10:00 A.M. (New York time) on the fourth Business Day prior to the proposed Borrowing, in the case of a Borrowing consisting of CDOR Loans;
(vii) 2:00 P.M. (London time) on the second Daily RFR Business Day prior to the proposed Borrowing, in the case of a Borrowing consisting of a Borrowing of Daily RFR Loans under the GBP RC Tranche; or
(viii) 10:00 A.M. (New York time) on the fourth Daily RFR Business Day prior to the proposed Borrowing, in the case of a Borrowing consisting of a Borrowing of Daily RFR Loans denominated in Sterling under the Multicurrency RC Tranche and in the case of a Borrowing under the GBP Term Loan Tranche.
Obligations means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit, or any Supported Hedge Agreement, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding; provided that in no event shall the Obligations of the Loan Parties under the Loan Documents include any Excluded Swap Obligations. The Obligations shall include the Erroneous Payment Subrogation Rights.
OFAC has the meaning specified in Section 6.16.
Operating Partnership has the meaning specified in the recital of parties hereto.
Operating Partnership Guaranty means a payment guaranty (if required hereunder) executed by the Operating Partnership in favor of the Administrative Agent, for the benefit of the Lenders, in form and substance acceptable to the Administrative Agent.
Organization Documents means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
35
Original Currency shall have the meaning assigned to such term in Section 11.21(a).
Other Currency shall have the meaning assigned to such term in Section 11.21(a).
Other Taxes means all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document.
Outstanding Amount means (i) with respect to USD-A Committed RC Loans, USD-B Committed RC Loans
andLoans denominated in US Dollars
(including Swing Line Loans) on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of such
USD-A Committed RC Loans, USD-B Committed RC Loans and Swing Line Loans, as the case may be,Loans occurring on such date; (ii) with respect to Australian Dollar RC LoansLoans
denominated in any currency other than US Dollars, the US Dollar Equivalent of the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or
repayments of such Australian Dollar RC Loans occurring on such date; (iii) with respect to Euro Committed RC Loans, the
US Dollar Equivalent of the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of such Euro Committed RC Loans occurring
on such date; and (iv) with respect to any L/C Obligations
denominated in US Dollars on any date, the amount of such
L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by thea Borrower of Unreimbursed
Amounts; and (iv) with respect to any L/C Obligations denominated in any currency other than US Dollars
on any date, the US Dollar Equivalent of the amount of such L/C Obligations on such date after giving
effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by a
Borrower of Unreimbursed Amounts.
Park Holidays means Park Holidays UK Limited, a UK limited company.
Park Holidays Acquisition means the acquisition by the Operating Partnership or a Subsidiary of the Operating Partnership of the Equity Interests in Tiger Topco 1 Limited, a private company limited by shares incorporated in England and Wales with registered number 10500425 pursuant to the Park Holidays Acquisition Agreement.
Park Holidays Acquisition Agreement means that certain Agreement For The Sale And Purchase Of The Entire Issued Share Capital Of Tiger Topco 1 Limited, dated November 13, 2021 by and among Tiger VI Financing S.à r.l, Tiger VI Investment S.à r.l, and the certain other sellers referenced therein, SCI Bidco Limited (a subsidiary of the Operating Partnership) and the Operating Partnership.
Park Holidays Acquisition Closing Date means the Completion Date as such term is defined in the Park Holidays Acquisition Agreement.
Parent means Sun Communities, Inc., a Maryland corporation.
Parent Guaranty means the Limited Payment Guaranty executed by the Parent in favor of the Administrative Agent, for the benefit of the Lenders, in form and substance acceptable to the Administrative Agent.
36
Participating Member State means any member state of the European Union that has the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.
Participant has the meaning specified in Section 11.06(d).
Patriot Act means the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), as amended.
Payment Recipient has the meaning specified in Section 10.13(a).
PBGC means the Pension Benefit Guaranty Corporation.
Pension Act means the Pension Protection Act of 2006.
Pension Funding Rules means the rules of the Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Pension Plans and set forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter, Section 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.
Pension
Plan means any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is maintained or is contributed to by the
BorrowerOperating
Partnership and any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.
Periodic Term SOFR Determination Date has the meaning set forth in the definition of Term SOFR.
Permitted Liens means:
(a) (a) inchoate Liens incident to construction on or maintenance of Property; or Liens incident to construction on or
maintenance of Property now or hereafter filed of record for which adequate reserves have been set aside, to the extent required by GAAP (or deposits made pursuant to applicable Law), and which are not overdue for a period of more than 30 days or
which are being contested in good faith by appropriate proceedings and have not proceeded to judgment, provided that, by reason of nonpayment of the obligations secured by such Liens, no such Property is subject to a material impending risk
of loss or forfeiture;
(b) Liens for taxes and assessments on Property which are not yet past due; or Liens for Taxes for which adequate reserves have been set aside, to the extent required by GAAP, and are being contested in good faith by appropriate proceedings and have not proceeded to judgment, provided that, by reason of nonpayment of the obligations secured by such Liens, no such Property is subject to a material impending risk of loss or forfeiture;
(c) defects and irregularities in title to any Property which would not reasonably be expected to result in a Material Adverse Effect;
(d) easements, exceptions, reservations, or other agreements for the purpose of pipelines, conduits, cables, wire communication lines, power lines and substations, streets, trails, walkways, drainage, irrigation, water, and sewerage purposes, dikes, canals, ditches, the removal of oil, gas, coal, or other minerals, and other like purposes affecting Property in the ordinary course;
37
(e) easements, exceptions, reservations, or other agreements for the purpose of facilitating the joint or common use of Property in or adjacent to a similar project affecting Property in the ordinary conduct of the business of the applicable Person;
(f) rights reserved to or vested in any Governmental Authority to control or regulate, or obligations or duties to any Governmental Authority with respect to, the use of any Property;
(g) rights reserved to or vested in any Governmental Authority to control or regulate, or obligations or duties to any Governmental Authority with respect to, any right, power, franchise, grant, license, or permit;
(h) present or future zoning laws and ordinances or other laws and ordinances restricting the occupancy, use, or enjoyment of Property in the ordinary conduct of the business of the applicable Person;
(i) statutory Liens, other than those described in clauses (a) or (b) above, arising in the ordinary course of business (but not in connection with the incurrence of any Indebtedness) with respect to obligations which are not delinquent or are being contested in good faith, provided that, if delinquent, adequate reserves have been set aside with respect thereto, to the extent required by GAAP, and, by reason of nonpayment, no Property is subject to a material impending risk of loss or forfeiture;
(j) covenants, conditions, and restrictions affecting the use of Property which may not give rise to any Lien against such Property in the ordinary conduct of the
business of the applicable Person;, easements, zoning restrictions, rights of way and other
encumbrances on title to real property that do not render title to the property encumbered thereby unmarketable or materially adversely affect the use or value of such property for its present purposes;
(k) rights of tenants as tenants only under leases and rental agreements covering Property entered into in the ordinary course of business of the Person owning such Property;
(l) Liens consisting of pledges or deposits to secure obligations under workers compensation laws or similar legislation, including Liens of judgments thereunder which are not currently dischargeable;
(m) Liens consisting of pledges or deposits of Property to secure performance in connection with operating leases made in the ordinary course of business;
(n) deposits to secure the performance of bids, contracts and leases (other than Indebtedness), statutory obligations, surety bonds (other than bonds related to judgments or litigation), performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(o) Liens consisting of any right of offset, or statutory bankers lien, on bank deposit accounts maintained in the ordinary course of business so long as such bank deposit accounts are not established or maintained for the purpose of providing such right of offset or bankers lien;
(p) Liens consisting of deposits of Property to secure statutory obligations of any Loan Party or any Subsidiary;
(q) Liens securing Obligations;
38
(r) Liens created by or resulting from any litigation or legal proceeding in the ordinary course of business which is currently being contested in good faith by appropriate proceedings; provided that, adequate reserves have been set aside and no material Property is subject to a material impending risk of loss or forfeiture;
(s) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the
importation of goods; and
(a) Liens consisting of other interests of lessees and lessors under leases of real or personal property (including ground leases under which the Operating Partnership or one of its Subsidiaries is the lessee or the lessor) made in the ordinary course of business that do not materially and adversely affect the use of the Property encumbered thereby for its intended purpose or the value there of; and
(b) rights of licensees as occupiers of property only, under license agreements entered into in the ordinary course of business of the Person owning such property;
(c)
(t) Liens not otherwise permitted by the foregoing clauses (a) through (su) to the extent attaching to properties and assets with an
aggregate fair market value not in excess of, and securing liabilities not in excess of, US$5,000,000 (or the US Dollar Equivalent thereof for any amount denominated in any foreign currency) at any time outstanding.
Permitted Senior Financing Provisions means provisions that are contained in Senior Financing Loan Documents consisting of
(a) limitations on the ability of the
BorrowerOperating
Partnership or a Subsidiary to make Restricted Payments or transfer property to the BorrowerOperating Partnership, the Parent, any other Loan Party or any owner of
an Unencumbered Asset; which limitations are not, taken as a whole, materially more restrictive than those contained in this Agreement, (b) limitations on the creation of any Lien on any assets of a Person that are not, taken as a whole,
materially more restrictive than those contained in this Agreement or any other Loan Document, (c) any requirement that Senior Financing Obligations be secured on an equal and ratable basis to the extent that the Obligations are
secured, or (d) any provisions that condition a Persons ability to encumber its assets upon the maintenance of one or more specified ratios that limit such Persons ability to encumber its assets but that do not generally prohibit
the encumbrance of its assets, or the encumbrance of specific assets.
Person means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
Plan means any employee benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan),
maintained for employees of the
BorrowerOperating
Partnership or any ERISA Affiliate or any such Plan to which the BorrowerOperating Partnership or any ERISA Affiliate is required to contribute
on behalf of any of its employees.
Platform has the meaning specified in Section 7.02.
Preferred Interests and Equity (Northgate) has the meaning ascribed to the term Preferred Interest on Schedules 1 and 2 of the Northgate JV Agreement.
Preferred Units (Aspen)
has the meaning ascribed to the term Preferred OP Units in Article 1 of the BorrowersOperating
Partnerships
Fourth Amended and Restated Limited Partnership Agreement, as amended, which class of units was initially created by the
BorrowersOperating
Partnerships
Second Amended and Restated Limited Partnership Agreement and the terms of which have been subsequently modified by Amendments No. 146, 204 and 257 to the BorrowersOperating
Partnerships
Second Amended and Restated Limited Partnership Agreement.
39
Pricing Certificate means a certificate in substantially the form of Exhibit J hereto, duly certified by the Chief Financial Officer or other Responsible Officer of the Operating Partnership and attaching a true and correct copy of the GRESB Real Estate Assessment (or, in the case of the Annual Period ending December 31, 2021, the ISS ESG Rating and Ranking Report) for the Operating Partnership for the immediately preceding Annual Period and setting forth the Sustainability Facility Fee Adjustment and the Sustainability Margin Adjustment for the period covered thereby, and computations in reasonable detail in respect thereof.
Pricing Certificate Inaccuracy has the meaning specified in Section 2.20.
Pro Rata Swing Line Share means, with respect to each Swing Line Lender, the ratio of such Swing Line Lenders Swing Line Commitment to the total Swing Line Commitments of all of the Swing Line Lenders.
Property means any Real Property which is owned or leased, directly or indirectly, by a Loan Party.
Property Owners means, collectively, each Subsidiary which owns or leases an Unencumbered Asset and Property Owner means any one of the Property Owners.
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.
Public Lender has the meaning specified in Section 7.02.
Purchasing Bank has the meaning specified in Section 2.19(a).
Purchasing Lender has the meaning specified in Section 2.16(f).
QFC has the meaning specified in Section 11.22.
QFC Credit Support has the meaning specified in Section 11.22.
Qualifying Ground Lease means a lease of Real Property containing the following terms and conditions: (a) a remaining term (including any unexercised extension options as to which there are no conditions precedent to exercise thereof other than the giving of a notice of exercise) of (x) 25 years or more from the Closing Date or (y) such lesser term as may be acceptable to the Administrative Agent and which is customarily considered financeable by institutional lenders making loans secured by leasehold mortgages (or equivalent) in the jurisdiction of the applicable Real Property; (b) the right of the lessee to mortgage and encumber its interest in the leased property without the consent of the lessor; (c) reasonable transferability of the lessees interest under such lease, including ability to sublease; and (d) such other rights customarily required by mortgagees in the applicable jurisdiction making a loan secured by the interest of the holder of a leasehold estate demised pursuant to a ground lease. Notwithstanding the foregoing, the leases set forth on Schedule 1.01(F) hereto as in effect as of the Amendment No. 1 Effective Date shall be deemed to be Qualifying Ground Leases.
Ratings Grid has the meaning specified in the definition of Applicable Rate.
40
RC Loan means a Committed RC Loan.
RCF-ARCF Maturity Date has the meaning specified in the definition of Maturity Date.
RCF-B Maturity Date has the meaning specified in the definition of Maturity Date.
Real Property of any Person means all of the right, title, and interest of such Person in and to land, improvements, and fixtures.
Recourse Indebtedness means Indebtedness for borrowed money other than Non-Recourse Indebtedness.
Reference Time with respect to any setting of the then-current Benchmark for any currency means (a) if such Benchmark is the Daily RFR Rate, four (4) Daily RFR Business Days prior to (A) if the date of such setting is a Daily RFR Business Day, such date or (B) if the date of such setting is not a Daily RFR Business Day, the Daily RFR Business Day immediately preceding such date, (b) if such Benchmark is the Adjusted Eurocurrency Rate, 11:00 A.M. (Brussels time) on the day that is two Eurocurrency Banking Days preceding the date of such setting and (c) otherwise, the time determined by the Administrative Agent, including in accordance with the Benchmark Replacement Conforming Changes.
Register has the meaning specified in Section 11.06(c).
REIT means a Personan entity that is qualified to be treated for tax purposes as a real
estate investment trust under Sections 856-860 of the Code.
Related Parties means, with respect to any Person, such Persons Affiliates and the partners, directors, officers, employees, agents, trustees and advisors of such Person and of such Persons Affiliates.
Relevant Interbank Market means, in relation to (a) Australian Dollars, the Australian bank bill market, (b) Canadian Dollars, the Canadian interbank market, (c) Sterling, the Sterling wholesale market, (d) Euro, the Euro interbank market, (e) US Dollars, the U.S. interbank market or (f) any other currency of any other jurisdiction, the applicable interbank market of such jurisdiction.
Reorganization Plan has the meaning set forth in Section 11.06(h)(iii).
Replacement Lender means an Eligible Assignee designated by the
BorrowerOperating
Partnership and approved by the Administrative Agent (such approval not to be unreasonably withheld).
Reportable Event means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.
Request for Credit Extension means (a) with respect to a Borrowing, conversion or
continuation of Committed RC Loans, a Committed RC Loan Notice, (b) with respect to a Borrowing of Term Loans, a
Term Loan Notice, (c) with respect to an L/C
Credit Extension, a Letter of Credit Application, and
(cd) with respect to a Swing Line Loan, a Swing Line Loan Notice.
Required Lenders means, as of any date of determination, Lenders having at least 50% of the Aggregate Commitments or, if the commitment of each Lender to make Loans and the obligation of each L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 9.02, Lenders holding in the aggregate at least 50% of the Total Outstandings (with the aggregate amount of each Lenders risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed held by such Lender for purposes of this definition); provided that the Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.
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Required Tranche Lenders means, as of any date of determination with
respect to a Tranche, Lenders under such Tranche having at least 50% of the aggregate Commitments with respect to such Tranche or, if the commitment of each Lender to make Loans under such Tranche (and, in the case of the USD-AMulticurrency RC Tranche, the obligation of each applicable L/C Issuer to make L/C Credit Extensions) has been terminated pursuant to Section 9.02, Lenders holding in the aggregate at least 50% of the Outstanding Amount of all Loans under such
Tranche (and, in the case of the
USD-AMulticurrency
RC Tranche, all L/C Obligations, with the aggregate amount of each Lenders risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed held by such
Lender for purposes of this definition); provided that the Commitment of, and the portion of the applicable Loans held or deemed held by, any Defaulting Lender under such Tranche shall be excluded for purposes of making a determination of
Required Tranche Lenders.
Resolution Authority means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
Responsible Officer means the chief executive officer, president, chief financial officer, treasurer, senior vice president finance, or vice president finance of a Loan Party, Park Holidays or Safe Harbor, as applicable, and solely for purposes of the delivery of incumbency certificates pursuant to Section 5.01, the secretary or any assistant secretary of a Loan Party, Park Holidays or Safe Harbor, as applicable. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party, Park Holidays or Safe Harbor, as applicable shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party, Park Holidays or Safe Harbor and such Responsible Officer, shall be conclusively presumed to have acted on behalf of such Loan Party, Park Holidays or Safe Harbor.
Restricted Payment means any dividend or other
distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of the BorrowerParent, the Operating Partnership 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 capital stock or other Equity Interest, or on
account of any return of capital to the
BorrowersParent
s
or the Operating Partnerships, as applicable, stockholders, partners or members (or the equivalent
Person thereof), including, in each case, by way of a Division.
Revolving Credit
Commitment means, with respect to any Lender at any time, the sum of such Lenders (a) USD-AAUD RC Commitment, (b) USD-BGBP RC Commitment
and, (c) Multicurrency RC Credit
Commitment and (d) USD RC Commitment, and Revolving Credit
Commitments means the aggregate principal amount of the Revolving Credit Commitments of all of the Lenders, as such amount may be reduced at or prior to such time pursuant to Section 2.07 or increased pursuant to
Section 2.16. The aggregate Revolving Credit Commitment as of the ClosingAmendment
No. 1 Effective Date shall equal US$2,000,000,000
3,050,000,000.
Rollover
Borrowing means any Loan (as defined in the Existing Credit Agreement) described on Schedule 1.01(E)
hereto.
Rollover Interest Period means, with respect to any Rollover Borrowing, the Interest Period set forth with
respect to such Rollover Borrowing on Schedule 1.01(E) hereto.
42
Revolving Credit Facility means, at any time, the aggregate amount of the Lenders Commitments in respect of Committed RC Loans at such time.
Revolving Credit Tranche means the AUD RC Tranche, the GBP RC Tranche, the Multicurrency RC Tranche and/or the USD RC Tranche, as the context may require.
RFR Administrators Website means the SONIA Administrators Website or the SOFR Administrators Website, as applicable.
S&P means S&P Global Ratings, a division of S&P Global Inc., and any successor thereto.
Safe Harbor means Safe Harbor Marinas, LLC, a Delaware limited liability company.
Sanctions has the meaning specified in Section 6.16.
Screen Rate means (a) for any
Eurocurrency Rate Committed RC Loan denominated in US Dollars, the USD LIBOR
Rate,Canadian Dollar Loans, CDOR,
(b) for any Eurocurrency Rate Committed RC Loan denominated in
EurosEuro Loans, the EURIBOR Rate and, (c) for any Australian Dollar Loans, the BBSY Rate and (d) for any
US Dollar Loans, the Term SOFR Reference Rate.
SEC means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
Secured Indebtedness means for any Person, Indebtedness of such Person that is secured by a Lien.
Securities Act means the Securities Act of 1933, as amended to the date hereof and from time to time hereafter, and any successor statute.
Selling Bank has the meaning specified in Section 2.19(a).
Selling Lender has the meaning specified in Section 2.16(f).
Senior Financing Loan Documents means the loan documents relating to any Senior Financing Transaction.
Senior Financing Obligations means Indebtedness in respect of a Senior Financing Transaction.
Senior Financing Transaction means a financing transaction in which senior Unsecured Indebtedness or senior Secured Indebtedness (other than Indebtedness under Customary Carve-out Agreements) is the obligation of any Loan Party or any direct or indirect owner of an Unencumbered Asset.
Series A-1 Preferred Units (Kentland) has the meaning ascribed to the term
Series A-1 Preferred Units in Article 18 of the
BorrowersOperating
Partnerships
Fourth Amended and Restated Limited Partnership Agreement, as amended, which series of units was initially created by Amendment No. 275 to the BorrowersOperating
Partnerships
Second Amended and Restated Limited Partnership Agreement.
Series A-3 Preferred Units (Morgan) has the meaning ascribed to the term
Series A-3 Preferred Units in Article 20 of the
BorrowersOperating
Partnerships
Fourth Amended and Restated Limited Partnership Agreement, as amended, which series of units was initially created by Amendment No. 287 to the BorrowersOperating
Partnerships
Second Amended and Restated Limited Partnership Agreement.
43
Series A-4 Preferred Units has
the meaning ascribed to the term Series A-4 Preferred Units in Article 21 of the Borrowers
Operating Partnerships
Third Amended and Restated Limited Partnership Agreement, as amended, which series of units was initially created by No. 2 to the BorrowersOperating
Partnerships
Third Amended and Restated Limited Partnership Agreement.
Series C Preferred Units has the meaning ascribed to the term Series C Preferred Units in Article 22 of the
BorrowersOperating
Partnerships
Third Amended and Restated Limited Partnership Agreement, as amended, which series of units was initially created by No. 7 to the BorrowersOperating
Partnerships
Third Amended and Restated Limited Partnership Agreement.
Series D Preferred Units has the meaning ascribed to the term Series D Preferred Units in Article 1 of the
BorrowersOperating
Partnerships
Fourth Amended and Restated Limited Partnership Agreement, as amended, which class of units was initially created by the
BorrowersOperating
Partnerships
Fourth Amended and Restated Limited Partnership Agreement.
Series E Preferred Units has the meaning ascribed to the term Series E Preferred Units, in Article 1 of the
BorrowersOperating
Partnerships Fourth Amended and Restated Limited Partnership Agreement, as amended, which class of units was initially created by the
BorrowersOperating
Partnerships
First Amendment to the Fourth Amended and Restated Limited Partnership Agreement.
Series F Preferred Units has the meaning ascribed to the term Series F Preferred Units, in Article 1 of the
BorrowersOperating
Partnerships
Fourth Amended and Restated Limited Partnership Agreement, as amended, which class of units was initially created by the
BorrowersOperating
Partnerships
Fourth Amendment to the Fourth Amended and Restated Limited Partnership Agreement.
Series G Preferred Units has the meaning ascribed to the term Series G Preferred Units, in Article 1 of the
BorrowersOperating
Partnerships
Fourth Amended and Restated Limited Partnership Agreement, as amended, which class of units was initially created by the
BorrowersOperating
Partnerships
Sixth Amendment to the Fourth Amended and Restated Limited Partnership Agreement.
Series H Preferred Units has the meaning ascribed to the term Series H Preferred Units, in Article 1 of the
BorrowersOperating
Partnerships
Fourth Amended and Restated Limited Partnership Agreement, as amended, which class of units was initially created by the
BorrowersOperating
Partnerships
Seventh Amendment to the Fourth Amended and Restated Limited Partnership Agreement.
Series I Preferred Units has the meaning ascribed to the term Series I Preferred Units, in Article 1 of the
BorrowersOperating
Partnerships
Fourth Amended and Restated Limited Partnership Agreement, as amended, which class of units was initially created by the
BorrowersOperating
Partnerships
Eighth Amendment to the Fourth Amended and Restated Limited Partnership Agreement.
Series J Preferred Units has the meaning ascribed to the term Series J Preferred Units, in Article 1 of the
BorrowersOperating
Partnerships
Fourth Amended and Restated Limited Partnership Agreement, as amended, which class of units was initially created by the
BorrowersOperating
Partnerships
Ninth Amendment to the Fourth Amended and Restated Limited Partnership Agreement.
SHM Acquisition means the transactions contemplated by the Acquisition Agreement.
SHM Assets means those assets directly or indirectly acquired by the BorrowerOperating
Partnership in the SHM Acquisition.
44
Site means a pad leased or to be leased to an individual on which such individual places a single manufactured home or recreational vehicle.
SOFR means a rate per annum equal to the secured overnight financing rate for the applicable Business Day published by the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate) on the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org (or any successor source for the secured overnight financing rate identified as such by the administrator of the secured overnight financing rate from time to time).
Solvent means, when used with respect to any Person, that (a) the fair value and the fair salable value of its assets (excluding any Indebtedness due from any affiliate of such Person) are each in excess of the fair valuation of its total liabilities (including all contingent liabilities); (b) such Person is able to pay its debts or other obligations in the ordinary course as they mature; and (c) such Person has capital not unreasonably small to carry on its business and all business in which it proposes to be engaged.
SONIA means a rate equal to the Sterling Overnight Index Average as administered by the SONIA Administrator.
SONIA Administrator means the Bank of England (or any successor administrator of the Sterling Overnight Index Average).
SONIA Administrators Website means the Bank of Englands website, currently at http://www.bankofengland.co.uk, or any successor source for the Sterling Overnight Index Average identified as such by the SONIA Administrator from time to time.
Sterling and £ each means lawful currency of the United Kingdom of Great Britain and Northern Ireland.
Sterling Loan means a Loan denominated in Sterling.
Subfacility means any of the Multicurrency Swing Line Facility or any Letter of Credit Facility, as the context may require.
Sublimit means thea Letter of Credit Sublimit and/or thea Swing Line Sublimit, as the context requires.
Subsidiary of a
Person means a corporation, partnership, joint venture, limited liability company or other business entity either (a) of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors
or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned by such Person or (b) that for accounting purposes is consolidated with the
BorrowerOperating
Partnership in accordance with GAAP. Unless otherwise specified, all references herein to a Subsidiary or to Subsidiaries shall refer to a Subsidiary or
Subsidiaries of the
BorrowerOperating
Partnership.
Subsidiary Guarantors means, all Subsidiaries that execute the Subsidiary Guaranty as of the date of this Agreement or in the future in accordance with Section 7.14 of this Agreement (exclusive of any Subsidiary Guarantor that is released pursuant to Section 7.14 of this Agreement) and Subsidiary Guarantor means any one of the Subsidiary Guarantors.
45
Subsidiary Guaranty means the Guaranty (if any) executed by each Subsidiary Guarantor in favor of the Administrative Agent, for the benefit of the Lenders, in form and substance substantially similar to Exhibit H hereto or otherwise acceptable to the Administrative Agent.
Substitute Daily RFR Rate means, with respect to any Daily RFR Business Day and Loans denominated in Sterling, (a) the percentage rate per annum which is the aggregate of (i) the applicable Central Bank Rate for that Daily RFR Business Day and (ii) the applicable Central Bank Rate Adjustment; or (b) if the applicable Central Bank Rate for such Daily RFR Business Day is not available, the percentage rate per annum which is the aggregate of (i) the most recent Central Bank Rate for a day which is no more than five (5) Daily RFR Business Days before that Daily RFR Business Day and (ii) the applicable Central Bank Rate Adjustment; rounded, in each case, to four decimal places.
Substitute Rate shall have the meaning assigned to such term in Section 3.04(a).
Successor Rate Conforming Changes means, with respect to any proposed
successor benchmark rate pursuant to clause (ii) of Section 3.03(df), any conforming changes to (a) the definitions of Base
Rate and Interest Period, (b) timing and frequency of determining rates and making payments of interest and (c) other administrative matters as may be appropriate, in the reasonable discretion of the Administrative Agent, to
(i) reflect the adoption of such successor benchmark rate and (ii) 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 successor benchmark rate exists, in such other manner of administration as the Administrative Agent reasonably
determines in consultation with the
BorrowerOperating
Partnership).
Supplemental
Tranche has the meaning set forth in Section 2.20.
Supplemental Tranche
Request has the meaning set forth in Section 2.20.
Supported Hedge Agreement means any Swap Contract required or permitted under Article VIII that is entered into by and between any Loan Party and any Swap Bank.
Supported QFC has the meaning specified in Section 11.22.
Sustainability Facility Fee Adjustment means:
(a) with respect to the Annual Period ending December 31, 2021, zero basis points;
(b) with respect to the Annual Periods ending December 31, 2022, December 31, 2023, December 31, 2024, December 31, 2025 and December 31, 2026, the number of basis points (positive, negative or zero) as indicated in the Sustainability Pricing Grid.
Sustainability Margin Adjustment means:
(a) with respect to the Annual Period ending December 31, 2021, negative 1.0 basis points, if the Operating Partnerships ISS ESG Rating and Ranking Report for the Annual Period ending December 31, 2021 shows an incremental letter grade improvement (i.e. ISS rating improves from D+ to C-) from the Operating Partnerships ISS score for the Annual Period ending December 31, 2020;
46
(b) with respect to the Annual Periods ending December 31, 2022, December 31, 2023, December 31, 2024, December 31, 2025 and December 31, 2026, the number of basis points (positive, negative or zero) as indicated in the Sustainability Pricing Grid.
Sustainability Pricing Grid means the following grid:
2022 Sustainability Change |
2023 Sustainability |
2024 Sustainability |
2025 Sustainability Change |
2026 Sustainability Change | ||||||||
Margin Adjustment | Facility Fee Adjustment | |||||||||||
(4.0 bps) | (1.0 bps) | > 25% | > 17.5% | > 12.5% | GRESB 4 Star |
GRESB 5 Star | ||||||
(2.0 bps) | (0.50 bps) | > 12.5% but < 25% |
> 10% but < 17.5 |
> 7.5% but < 12.5% |
> 7.5% | > 5.0% | ||||||
No change | No change | > 5.0% but < 12.5% |
> 2.5% but < 10.0% |
> 1.0% but < 7.5% |
> (2.5%) but < 7.5% |
> (2.5%) but < 5.0% | ||||||
+ 2.0 bps | + 0.50 bps | > (2.5%) but < 5.0% |
> (5.0%) but < 2.5% |
> (7.5%) but < 1.0% |
> (7.5%) but < (2.5%) |
> (7.5%) but < (2.5%) | ||||||
+ 4.0 bps | + 1.0 bps | < (2.5%) | < (5.0%) | < (7.5%) | < (7.5%) |
< (7.5%) |
Sustainability
MetricPricing
Adjustment Date has the meaning specified in the definition of Applicable RateSection 2.20
.
Sustainability
Rating means the environmental social and governance (ESG) rating obtained by the Borrower from Dow Jones, S&P, GRESB or any similar index reasonably approved by the Administrative
Agent.
Sustainability Rating means, with respect to any Annual Period, the GRESB Score, as calculated and assigned to the Operating Partnership from time to time by GRESB and published in the most recently released GRESB Real Estate Assessment for the Operating Partnership; provided, however that notwithstanding anything to the contrary herein:
(a) the Sustainability Rating for the Annual Period ending December 31, 2020 is based on the Companys sustainability rating from Institutional Shareholder Services (ISS ) and shall be deemed to be the Operating Partnerships Sustainability Rating as in effect as of the Amendment No. 1 Effective Date which is on file with the Administrative Agent;
(b) the calculation of the Sustainability Rating Change from the year ending December 31, 2020 to the year ending December 31, 2021 shall be based on the Companys sustainability rating for each such year from ISS;
47
(c) the calculation of the Sustainability Rating Change from the year ending December 31, 2021 to the year ending December 31, 2022 shall be based on the Companys sustainability rating from GRESB for the year ending December 31, 2021 and the Companys sustainability rating from GRESB for the year ending December 31, 2022; and
(d) the calculation of the Sustainability Rating Change for all years from and after the year ending December 31, 2022 shall be based on the Companys sustainability rating from GRESB for such year.
Sustainability Rating Change means, for any Annual Period, the percentage change of the Sustainability Rating over the Sustainability Rating for the immediately preceding Annual Period (provided, however, that in the case of ISS ratings scores, the Sustainability Rating Change shall mean an incremental letter grade improvement over the prior Annual Period).
Co-Sustainability Structuring Agents means, individually and collectively, as the context may require, BofA Securities, Inc., in its capacity as a co-sustainability structuring agent, Citibank, N.A., in its capacity as a co-sustainability structuring agent and Sumitomo Mitsui Banking Corporation, in its capacity as a co-sustainability structuring agent.
Swap Bank means a Lender or an Affiliate of a Lender in its capacity as a party to a Swap Contract with a Loan Party.
Swap Contract means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a Master Agreement), including any such obligations or liabilities under any Master Agreement.
Swap Obligation means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a swap within the meaning of Section 1a(47) of the Commodity Exchange Act.
Swap Termination Value means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts 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 Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).
Swing Line Borrowing means a borrowing of a Swing Line Loan pursuant to Section 2.05.
48
Swing Line Commitment means, with respect to any Swing Line Lender at any time, the amount set forth opposite the applicable Swing Line Lenders name on Schedule 1.01(A) hereto under the caption Swing Line Commitment, or, if such Swing Line Lender has entered into one or more Assignment and Assumptions, set forth for such Swing Line Lender in the Register maintained by the Administrative Agent pursuant to Section 11.06(c) as such Swing Line Lenders Swing Line Commitment, as such amount may be reduced at or prior to such time pursuant to Section 2.07.
Swing Line Exposure means, at any time, the aggregate Outstanding Amount of all Swing Line Loans.
Swing Line Lender means each of Citibank, Citizens Bank, N.A., Bank of America, N.A., Bank of Montreal, Royal Bank of Canada and JPMorgan Chase Bank, N.A. in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.
Swing Line Loan has the meaning specified in Section 2.05(a).
Swing Line Loan Notice means a notice of a Swing Line Borrowing pursuant to Section 2.05(b), which, if in writing, shall be substantially in the form of Exhibit B.
Swing Line Sublimit means US$200,000,000
of the aggregate Commitments of the Lenders in respect of the
USD-AMulticurrency
Committed RC Loans. The Swing Line Sublimit is part of, and not in addition to, the aggregate USD-AMulticurrency RC Commitments.
Synthetic Debt means, with respect to any Person as of any date of determination thereof, all obligations of such Person in respect of transactions entered into by such Person that are intended to function primarily as a borrowing of funds (including any minority interest transactions that function primarily as a borrowing) but are not otherwise included in the definition of Indebtedness or as a liability on the consolidated balance sheet of such Person and its Subsidiaries in accordance with GAAP.
Synthetic Lease Obligation means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).
TARGET2 means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilizes a single shared platform and which was launched on November 19, 2007.
TARGET Day means any day on which TARGET2 is open for the settlement of payments in Euros.
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 Loan has the meaning set forth in Section 2.01(b).
Term Loan Borrowing means a borrowing consisting of simultaneous Term Loans having the same Interest Period made by each of the Lenders pursuant to Section 2.01(b).
49
Term Loan Commitment means, with respect to any Term Loan Lender at any time, the amount set forth opposite the applicable Term Loan Lenders name on Schedule 1.01(A) hereto under the caption Term Loan Commitment, or, if such Term Loan Lender has entered into one or more Assignment and Assumptions, set forth for such Term Loan Lender in the Register maintained by the Administrative Agent pursuant to Section 11.06(c) as such Term Loan Lenders Term Loan Commitment, as such amount may be reduced at or prior to such time pursuant to Section 2.07.
Term Loan Lender means any Person that is a Lender hereunder in respect of the Term Loan Tranche in its capacity as a Lender in respect of such Tranche.
Term Loan Maturity Date has the meaning specified in the definition of Maturity Date.
Term Loan Notice means a notice of a Term Loan Borrowing pursuant to Section 2.02(a), which shall be substantially in the form of Exhibit A-2.
Term Loan Tranche means, at any time, the aggregate amount of the Lenders Term Loan Commitments at such time and, without duplication, the Term Loans outstanding at such time.
Term SOFR means:
(a) for any calculation with respect to a Term SOFR Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the Periodic Term SOFR Determination Day) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that with respect to any L/C Advance, L/C Borrowing or deemed Committed RC Borrowing under Section 2.04(c), the Term SOFR Reference Rate for a one-month Interest Period on the day that is two (2) U.S. Government Securities Business Days prior to the date of the Borrowing or deemed Borrowing of such L/C Advance or L/C Borrowing shall apply; provided further that if as of 5:00 P.M. (New York time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day, and
(b) for any calculation with respect to a Base Rate Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the Base Rate Term SOFR Determination Date) that is two (2) U.S. Government Securities Business Days prior to such day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 P.M. (New York time) on any Base Rate Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Base Rate SOFR Determination Day.
50
Term SOFR Administrator means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable discretion).
Term SOFR Loan means a Loan that bears interest at a rate based on clause (a) of the definition of Term SOFR.
Term SOFR Reference Rate means the forward-looking term rate based on SOFR.
Total Asset
Value means at any time for the Consolidated Group, without duplication, the sum of the following: (a) for all Marina Property and Real Property assets (which, for the sake of clarity, includes the Marina Real Estate Assets without
duplication) and rental units owned by the Consolidated Group for the entire most recently ended period of four fiscal quarters (other than Construction in Progress), an amount equal to (x) Net Operating Income for the most recently ended
period of four fiscal quarters for such Marina Property and Real Property assets (which, for the sake of clarity, includes the Marina Real Estate Assets without duplication) and rental units, divided by (y) the applicable Capitalization
Rate, plus (b) for all Marina Assets and Real Property assets and rental units owned by the Consolidated Group for less than the entire most recently ended period of four fiscal quarters (other than Construction in Progress), an amount
equal to the aggregate acquisition cost of such assets and rental units, plus (c) the aggregate book value of all Improved Land Holdings and unimproved land holdings, other than Construction in Progress, plus (d) for all
rental units owned by the Consolidated Group that are being held for sale or lease and which would have no value attributed to them on account of clauses (a) through (c) above, an amount equal to the aggregate book value of such
rental units, plus (e) the aggregate book value of mortgage or mezzanine loans, notes receivable and/or Construction in Progress owned by the Consolidated Group, plus (f) the Consolidated Groups pro rata share of the
foregoing items and components attributable to interests in Unconsolidated Affiliates, plus (g) unrestricted cash and Cash Equivalents owned by the
BorrowerOperating
Partnership and its Subsidiaries, plus (h) the Fair Market Value of all Marketable Securities owned by the
BorrowerOperating
Partnership and its Subsidiaries; provided, however, that the portion of Total Asset Value attributable to (i)(v) unimproved land holdings, (w) Construction in Progress
holdings, (x) Unconsolidated Affiliates and non-wholly owned Subsidiaries, (y) Real Property assets that are not manufactured home communities, recreational vehicle communities, caravan communities, park holiday communities, or marina
properties or any other similar type of property, and
(z) mortgages, mezzanine loans and notes receivable (provided that all collateralized receivables (within the meaning of GAAP) shall be subject to the limitation set forth in clause (ii) below) shall not exceed in the
aggregate twenty percent (20%) of Total Asset Value, (ii) unrestricted cash and Cash Equivalents shall not exceed in the aggregate US$25,000,000 in the aggregate, and (iii) all collateralized receivables (within the meaning of GAAP) shall
not exceed twenty percent (20%) of Total Asset Value, with any excess in each case excluded from such calculation; provided
further that through December 31, 2021, the portion of Total Asset Value attributable to the Marina Assets acquired in the SHM Acquisition shall be valued at the Purchase Price (as defined in the
Acquisition Agreement). For the avoidance of doubt, Net Operating Income attributable to all such Marina Property and Real Property (which, for the sake of clarity, includes the Marina
Real Estate Assets without duplication) assets and rental units that were sold or otherwise disposed of during any period of calculation shall be excluded from the calculation of Total Asset Value. Notwithstanding the foregoing, the BorrowerOperating
Partnership may elect to exclude from Total Asset Value that portion of Total Asset Value attributable to certain Unconsolidated Affiliates so long as such exclusion does not exceed ten percent
(10%) of Total Asset Value at any time. In such event, the Indebtedness attributable to such Unconsolidated Affiliates may also be excluded from Indebtedness.
Total Indebtedness means all Indebtedness of the Consolidated Group determined on a consolidated basis.
51
Total Outstandings means the aggregate Outstanding Amount of all Loans and all L/C Obligations (which, for the avoidance of doubt, shall be expressed in US Dollars or the US Dollar Equivalent for any Loans and L/C Obligations denominated in currencies other than US Dollars).
Total Revolving Loan Outstanding means the aggregate Outstanding Amount of all Committed RC Loans and all L/C Obligations in respect of the Revolving Credit Facility.
Total Secured Indebtedness means all Secured Indebtedness of the Consolidated Group determined on a consolidated basis.
Total Unencumbered Cash Flow means at any time, the Unencumbered Pool NOI for all Unencumbered Assets, minus an amount equal to the paid management fees in respect of all Unencumbered Assets annualized.
Total Unsecured Indebtedness means all Indebtedness of the Consolidated Group (other than Total Secured Indebtedness) determined on a consolidated basis.
Trade Date has the meaning set forth in Section 11.06(h).
Trading with the Enemy Act means the Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended), and any other enabling legislation or executive order relating thereto.
Tranche means each of the
USD-AAUD RC Tranche, the
USD-BGBP RC Tranche,
the Multicurrency RC Tranche, the USD RC Tranche and
the Multicurrency RC
CreditTerm Loan Tranche.
Treasury Regulations means the regulations promulgated by the U.S. Treasury Department under the Code.
True-Up Amount has the meaning specified in Section 2.20.
Type means (i) for Loans denominated
inany US DollarsDollar Loan, its character as a Base Rate Loan or a Eurocurrency Rate Committed RC, a Term SOFR Loan or a Daily RFR Loan, (ii) for Loans denominated in Australian
Dollars,any Australian Dollar RC Loans and (iii) for Loans denominated in
Euro,Loan, its character as a BBSY Loan, (iii) for any Canadian Dollar Loan, its character as a CDOR Loan, (iv) for any Euro Loan, its character as a Eurocurrency Rate Committed RC LoansLoan and
(v) for any Sterling Loan, its character as a Daily RFR Loan.
UCP has the meaning specified in Section 2.04(g).
UK Borrowers means the Operating Partnership and each Additional Borrower (if any) that is designated as a Borrower with respect to the GBP RC Tranche.
UK Financial Institution means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any Person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
UK Resolution Authority means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
52
Unconsolidated Affiliate means an affiliate of the BorrowerOperating
Partnership whose financial statements are not required to be consolidated with the financial statements of the
BorrowerOperating
Partnership in accordance with GAAP.
Unencumbered
Asset means a Property that is designated as an Unencumbered Asset by the BorrowerOperating Partnership and is an Eligible Property.
Unencumbered Asset Certificate means a certificate in substantially the form of Exhibit G (or such other form
approved by the Administrative Agent) certified by a Responsible Officer of the BorrowerOperating Partnership.
Unencumbered Debt Yield means, at any time, the aggregate Total Unencumbered Cash Flow divided by the Total Unsecured Indebtedness.
Unencumbered Pool NOI means, at any time with respect to any Real Property asset (including
any Marina Real Estate Asset) and Marina Property owned by any Person or rental unit owned by any Person and located on a Real Property asset (including any Marina Real Estate Asset) that is an Unencumbered Asset, (i) if owned for at least
twelve (12) months, the Net Operating Income derived from such Real Property asset (including any Marina Real Estate Asset), Marina Property or rental unit for the trailing twelve months; (ii) if owned for at least one fiscal quarter but
less than twelve months (and the
BorrowerOperating
Partnership has not made the election set forth in clause (iv) of this paragraph), the Net Operating Income derived from such Real Property asset or rental unit for the most recent
fiscal quarter times four; (iii) if owned for less than one fiscal quarter (and Borrowerthe Operating Partnership has not made the election set forth in
clause (iv) of this paragraph), the Net Operating Income derived from such Real Property asset (including any Marina Real Estate Asset), Marina Property or rental unit for most recent quarter of historical financials times four; and
(iv) if owned for less than twelve (12) months, at the BorrowersOperating
Partnerships
election (absent which election clause (ii) or (iii) shall apply, as applicable), the Net Operating Income derived from such real property asset (including any Marina Real
Estate Asset), Marina Property, or rental unit for the trailing twelve (12) months. For the avoidance of doubt, the Net Operating Income of a real property asset (including any Marina Real Estate Asset), Marina Property, or rental unit
that is sold by a Person within the trailing twelve months will be excluded in calculating Unencumbered Pool NOI. In no event shall the Unencumbered Pool NOI for any Unencumbered Asset or rental unit be less than zero. For the purposes of
calculating Unencumbered Pool NOI:
(a) no single Unencumbered Asset may account for greater than twenty percent (20%) of the aggregate Unencumbered Pool NOI, with any excess over such limit being deducted from
the aggregate Unencumbered Pool NOI;
(b) no more than fifty percent (50%) of the aggregate Unencumbered Pool NOI may
be from Net Operating Income derived from recreational vehicle communities with any excess
over such limit being deducted from the aggregate Unencumbered Pool NOI;
(a)
(c) no more than twenty percent (20%) of the aggregate Unencumbered Pool NOI may be from Net Operating Income derived from rental units with any excess Net Operating Income derived from rental units over such limit
being deducted from the aggregate Unencumbered Pool NOI;
(b)
(d) no more than sixty percent (60%) of the aggregate Unencumbered Pool NOI may be from Net Operating Income derived from Marina Assets with any excess Net Operating Income derived from Marina Assets over such limit
being deducted from the aggregate Unencumbered Pool NOI (the Marina Cap); provided, however, that the Marina Cap will be reduced on each anniversary of the Closing
53
Date by two percent (2%) until the Marina Cap is equal to fifty percent (50%). In the event of a Material Acquisition, upon the
BorrowersOperating
Partnerships
written request to the Administrative Agent, the Marina Cap shall be increased to sixty percent (60%) as of the date of such Material Acquisition; provided further that on the date
occurring one year following such Material Acquisition, the Marina Cap shall be reduced to the then-applicable percentage;
(e) the aggregate Unencumbered Pool NOI from Net Operating Income derived from
Unencumbered Assets that are recreational vehicle sites shall not exceed fifty percent (50%) of the Unencumbered Pool NOI from assets other than Marina Assets, with any Net Operating Income over such limit being deducted from the aggregate
Unencumbered Pool NOI; and
(c)
(f) no more than
ten15 percent
(1015%) of the aggregate Unencumbered Pool NOI may be from Net Operating Income derived from properties located in Canada, Australia, The Bahamas,
the United Kingdom (including its territories), Austria, Belgium, Denmark, Finland, France, Germany, Ireland,
Italy, Luxembourg, The Netherlands, Poland, Portugal, Spain, Sweden or any other jurisdiction as is agreed to by the Required Lenders, with any excess Net Operating Income derived from such properties over such limit being deducted from the
aggregate Unencumbered Pool
NOI.; and
(d) no more than 10 percent (10%) of the aggregate Unencumbered Pool NOI may be from Net Operating Income derived from properties located in any jurisdiction not described in clause (c) (other than, for the avoidance of doubt, the United States or the United Kingdom) unless agreed to by the Required Lenders, with any excess Net Operating Income derived from such properties over such limit being deducted from the aggregate Unencumbered Pool NOI.
United States and U.S. mean the United States of America.
Unreimbursed Amount has the meaning specified in Section 2.04(c)(i).
Unsecured Indebtedness means for any Person, Indebtedness of such Person other than Secured Indebtedness of such Person.
Unused Multicurrency RC Credit Commitment means, with respect to any Lender with a Multicurrency RC
Credit Commitment at any time, (a) such Lenders Multicurrency RC Credit Commitment at such
time, minus (b) the
sum of (i) the aggregate Outstanding Amount of all Multicurrency Committed RC Loans made by such Lender (in its capacity as a Lender), plus (ii) such Lenders Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus
(iii) such Lenders Applicable Percentage of the Outstanding Amount of all Swing Line Loans.
Unused AUD RC Commitment means, with respect to any Lender with an AUD Commitment at any time, (a) such Lenders AUD Commitment at such time minus (b) the aggregate Outstanding Amount of all AUD Committed RC Loans made by such Lender (in its capacity as a Lender).
Unused USD-AGBP RC Commitment means, with respect to any Lender at any time, (a) such Lenders USD-AGBP RC Commitment at such time, minus (b) the sum of (i) the aggregate Outstanding Amount of all USD-AGBP Committed RC Loans made by such Lender (in its capacity as a
Lender), plus
(ii) such Lenders Applicable Percentage of the Outstanding Amount of all L/C Obligations,
plus (iii) such Lenders Applicable
Percentage of the Outstanding Amount of all Swing Line Loans.
Unused USD-BUSD RC Commitment means, with respect to any Lender at any
time, (a) such Lenders
USD-BUSD RC Commitment at such time, minus (b) the sum of the aggregate Outstanding Amount of all USD-BUSD Committed RC Loans made by such Lender (in its capacity as a
Lender).
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Unused Rate means the following percentages per annum based upon the Daily Usage as set forth below:
Daily Usage |
Unused Rate | |||
<50% |
0.20 | % | ||
>50% |
0.15 | % |
USD-AUSD Committed RC Loan has the meaning specified in
Section
2.01(a)(iiv
).
USD RC Borrower means the Operating Partnership and each Additional Borrower (if any) that is designated as a Borrower with respect to the USD RC Tranche.
USD-AUSD RC Commitment means, (a) with respect to any
Lender at any time, the amount set forth opposite such Lenders name on Schedule 1.01(A) hereto under the caption USD-AUSD RC Commitment or (b) if such Lender has entered into one
or more Assignment and Acceptances, set forth for such Lender in the Register maintained by the Administrative Agent pursuant to Section 11.06(c) as such Lenders USD-AUSD RC Commitment, as such amount may be reduced at or prior to such time pursuant to Section 2.07 or increased pursuant to Section 2.16.
USD-A RC
Tranche means, at any time, the aggregate amount of the Lenders Commitments in respect of USD-A Committed RC Loans at such time.
USD RC Lender means any Person that is a Lender hereunder
in respect of the
USD-A RevolvingUSD-AUSD RC Tranche in its capacity as a Lender in respect of such Tranche.
USD Committed RC
Loan means a USD-A Committed RC Loan, a USD-B Committed RC Loan or a Multicurrency
Committed RC Loan denominated in US Dollars.
USD-B Committed RC Loan has the meaning specified in Section 2.01(a)(ii).
USD-B RC
Commitment means, (a) with respect to any Lender at any time, the amount set forth opposite such Lenders name on Schedule 1.01(A) hereto under the caption USD-B RC
Commitment or (b) if such Lender has entered into one or more Assignment and Acceptances, set forth for such Lender in the Register
maintained by the Administrative Agent pursuant to Section 11.06(c) as such Lenders USD-B RC Commitment, as such amount may be reduced at or prior to such time pursuant to Section 2.07
or increased pursuant to Section 2.16.
USD-BUSD RC Tranche means, at any time, the aggregate amount of
the Lenders USD RC Commitments in respect of USD-B Committed RC Loans at such time.
USD LIBOR Rate has the meaning specified in the definition
of Eurocurrency Rate.
USD RC
Loans means (a) USD-A Committed RC Loans, (b) USD-B Committed RC Loans and/or
(c) Multicurrency Committed RC Loans denominated in US Dollars, as the context requires.
US Dollar Equivalent means, in relation to an amount denominated or expressed in Australian Dollars, Euro, Canadian Dollars, Sterling or any other non-U.S. currency, (a) the equivalent thereof in US Dollars converted at the Agents Spot Rate of Exchange as of the date of determination or (b) if such amount has been hedged in accordance with the terms of a Swap Contract, the equivalent thereof in US Dollars converted in accordance with such Swap Contract.
55
US Dollar Loan means a Loan denominated in US Dollars.
US Dollars or US$ means the lawful currency on the date hereof of the United States of America.
U.S. Government Securities Business Day means any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
U.S. Special Resolution Regimes has the meaning specified in Section 11.22.
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.
1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
(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..
Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) 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 or in any other Loan Document), (ii) any
reference herein to any Person shall be construed to include such Persons successors and assigns, (iii) the words hereto,,
herein,,
hereof and
hereunder,,
and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references
in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall
include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or
supplemented from time to time, and (vi) 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.
(b) In the computation of periods of
time from a specified date to a later specified date, the word from means from and including;; the words
to and until each mean to but excluding; and the word through means to and
including..
56
(c) Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.
1.03 Accounting Terms.
All accounting terms not specifically or completely defined herein and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with GAAP as
applied in a manner consistent with that used in preparing the Audited Financial Statements notwithstanding any subsequent changes in GAAP. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the
computation of any financial covenant) contained herein, Indebtedness of the BorrowerOperating Partnership and its Subsidiaries shall be deemed to be carried
at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 on financial liabilities shall be disregarded.
1.04 Rounding. Any financial ratios required to be maintained by the BorrowerOperating
Partnership 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).
1.05 Times of Day. Unless otherwise specified, all references herein to times of day shall be references to (i) London time in connection with matters relating to the GBP RC Tranche, (ii) Sydney time in connection with matters relating to the AUD RC Tranche, and (iii) in all other cases, Eastern time (daylight or standard, as applicable).
1.06 Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
1.07 Divisions. For all purposes under the Loan Documents, in connection with any Division or plan of division under Delaware law (or any comparable event under a different jurisdictions laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time.
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Committed RC
Loans; Term Loans. (a) (i)
USD-AAUD
Committed RC Loans. Each Lender with a USD-Aan AUD RC Commitment severally agrees, on the terms and conditions set
forth herein, to make revolving loans (each such loan,
aan
AUD
Committed RC Loan) in USD-AUSAustralian Dollars to the BorrowerAustralia
Borrowers from time to time on any Business Day during the Availability Period, in an amount for each such
AUD
Committed RC Loan not to exceed such Lenders Unused USD-AUSD-AAUD RC Commitment at such time, provided that the aggregate amount of the USD-A RC Commitments of the USD-A Revolving
Lenders shall be deemed used from time to time to the extent of the Swing Line Loans and the Outstanding Amount of L/C Obligations. The Facility Exposure with respect to the USD-AAUD RC Tranche shall not at any time exceed the aggregate USD-AAUD RC Commitments. Within the limits of each Lenders Unused USD-AAUD RC Commitment in effect from time to time and during the
Availability Period, the
BorrowerAustralia
Borrowers may borrow under this Section 2.01(a)(i), prepay under Section 2.06 and reborrow under this
Section 2.01(a)(i). All AUD Committed RC Loans shall be BBSY Loans.
57
(ii)
GBP
Committed RC Loans. Each Lender with a USD-BUSD-BGBP RC Commitment severally agrees, on the terms and conditions set
forth herein, to make revolving loans (each such loan, a GBP Committed RC Loan) in USD-BUS DollarsSterling to the
BorrowerUK
Borrowers from time to time on any Business Day during the Availability Period, in an amount for each such
USD-BGBP Committed RC Loan not to exceed such Lenders Unused USD-BGBP RC Commitment at such time. The Facility Exposure with respect to
the USD-BGBP RC Tranche shall not at any time exceed the aggregate USD-BGBP RC Commitments. Within the limits of each Lenders Unused
USD-BGBP RC Commitment in effect from time to time and during the Availability Period, the BorrowerUK Borrowers may borrow under this
Section 2.01(a)(ii), prepay under Section 2.06 and reborrow under this Section 2.01(a)(ii).
All GBP Committed RC Loans shall be Daily RFR Loans.
(iii) Multicurrency RC Loans. Each Lender with a Multicurrency RC Credit Credit Commitment severally agrees, on the terms and conditions set forth herein, to make revolving loans (each such loan
ana Multicurrency Committed RC Loan) in US Dollars, Euro or, Sterling, Australian Dollars or Canadian Dollars to the BorrowerMulticurrency
Borrowers from time to time on any Business Day during the Availability Period in an amount for each such Multicurrency Committed RC Loan not to exceed such Lenders Unused Multicurrency RC
Credit Commitment at such
time,
Loan; provided that the aggregate amount of the Multicurrency Committed RC Loans denominated in Australian
Dollars shall be available only as
Australian Dollar RC Loans and Multicurrency Committed RC Loans denominated in Euro shall be available only as Eurocurrency Rate Committed RC LoansCommitments of the Multicurrency RC
Lenders shall be deemed used from time to time to the extent of the Swing Line Loans and the Outstanding
Amount of L/C Obligations. The US Dollar Equivalent of (x) the portion of the Facility Exposure with respect to the
Multicurrency RC Credit Tranche denominated in
Australiancurrencies
other than US Dollars plus (y) the portion of the Facility Exposure with respect to the Multicurrency RC Credit Tranche denominated in Euro
plus (z) the portion of the Facility
Exposure with respect to the Multicurrency RC Credit Tranche denominated in US Dollars shall not at any time exceed the aggregate Multicurrency RC Credit Commitments and the US Dollar Equivalent of the aggregate amount of the Facility Exposure with respect to the Multicurrency RC Tranche
denominated in currencies other than US Dollars shall not exceed US$1,500,000,000. Within the limits of each Lenders Unused Multicurrency RC Credit Commitment in effect from time to time and during the Availability Period, the BorrowerMulticurrency
Borrowers may borrow under this Section 2.01(a)(iii), prepay under Section 2.06 and reborrow under this
Section 2.01(a)(iii). All Multicurrency Committed RC Loans (v) denominated in US Dollars shall (subject to Sections 2.04(c) and 2.05(a)) be Term SOFR Loans, Daily RFR Loans or Base Rate Loans, (w) denominated in Australian Dollars shall be BBSY Loans, (x) denominated in Sterling shall be Daily RFR Loans, (y) denominated in Euro shall be Eurocurrency Rate Loans and (z) denominated in Canadian Dollars shall be CDOR Loans; provided,
however, that L/C Advances, L/C Borrowings and deemed Committed RC Borrowings under Section 2.04(c) denominated in
(I) US Dollars shall be Base Rate Loans, (II) Sterling shall be
Daily RFR
Rate Loans,
(III) Canadian Dollars shall be CDOR Loans having an Interest Period of one month commencing on the
date of the advance or deemed advance of such L/C Advances, L/C Borrowings or deemed Committed RC Borrowings and
(IV) Euro shall be Eurocurrency Loans having an Interest Period of one month commencing on the date of the advance or deemed advance of such L/C Advances, L/C Borrowings or deemed Committed RC
Borrowings.
58
(iv) USD Committed RC Loans. Each Lender with a USD RC Commitment severally agrees, on the terms and conditions set forth herein, to make revolving loans (each such loan, a USD Committed RC Loan) in US Dollars to the USD RC Borrowers from time to time on any Business Day during the Availability Period, in an amount for each such USD Committed RC Loan not to exceed such Lenders Unused USD RC Commitment at such time. The Facility Exposure with respect to the USD RC Tranche shall not at any time exceed the aggregate USD RC Commitments. Within the limits of each Lenders Unused USD RC Commitment in effect from time to time and during the Availability Period, the USD RC Borrowers may borrow under this Section 2.01(a)(iv), prepay under Section 2.06 and reborrow under this Section 2.01(a)(iv). All USD Committed RC Loans shall be Term SOFR Loans, Daily RFR Loans or Base Rate Loans.
(b) Term Loans. Each Lender with a Term Loan Commitment severally agrees, on the terms and conditions set forth herein, to make a term loan (each such loan, a Term Loan) in Sterling to the Operating Partnership on the Amendment No. 1 Effective Date in an amount equal to such Lenders Term Loan Commitment. The US Dollar Equivalent of the Facility Exposure with respect to the Term Loan Tranche shall not at any time exceed the aggregate Term Loan Commitments. Subject to the other terms and conditions hereof, the Operating Partnership may prepay Term Loans under Section 2.06. No Term Loan may be readvanced or reborrowed hereunder following its repayment or prepayment. All Term Loans shall be Daily RFR Loans.
(c)
(b) Each Lender may, at its option, make any Committed RC Loan or Term Loan
available to the applicable Borrower by causing any foreign or domestic branch or such Lenders Affiliate to make such Committed RC Loan; provided, however, that (i) any exercise of such option shall not affect the
obligation of the applicable Borrower to repay such Committed RC Loan in accordance with the terms of this Agreement, (ii) nothing in this
Section 2.01(b) shall be deemed to obligate any Lender to obtain the funds for any Committed RC Loan in any particular place or manner or to constitute a representation or warranty by any Lender that it has obtained or will obtain the funds for any Committed RC Loan in any particular place or manner, and (iii) any foreign or domestic branch or Lenders
Affiliate making any such Committed RC Loan pursuant to this sentence shall be treated, for all purposes of
this Agreement, in the same manner as the applicable Lender (in the case of a new lending office or branch), or in the same manner as an assignee pursuant to Section 11.06(b) (in the case of a Lenders Affiliate), in
respect of its acting as such hereunder, and, in each case, shall be entitled to exercise each of the rights and shall be entitled to each of the benefits of a Lender, and shall be subject to each of the obligations of a Lender, under this Agreement
with respect to any such Committed RC Loan.
(c)
Notwithstanding anything to the contrary
contained in Sections 2.02(a) or
2.09, as of the Closing Date, each Loan referred to on
Schedule
1.01(E) shall be a Eurocurrency Rate Committed RC Loan bearing interest at the Adjusted
Eurocurrency Rate in effect immediately prior to the Closing Date
plus the Applicable Rate (as defined herein) and shall have an Interest Period ending on the applicable date set forth in
Schedule
1.01(E). From and after the applicable date set forth on Schedule 1.01(E), each such Loan may be a Base Rate Loan, a Eurocurrency Rate Committed RC Loan or an Australian Dollar RC Loan, as applicable, as further provided herein.
2.02 Borrowings, Conversions and Continuations of Committed RC Loans.
(a) Each Committed RC Borrowing, each conversion of Committed
RCUS Dollar Loans from one Type to another,
and each continuation of Floating Rate Loans shall be made upon the applicable Borrowers irrevocable notice to the AdministrativeApplicable Agent, which may be given by telephone, provided that each notice of Borrowing under the Sterling RC Tranche shall be given in writing (which may be by email) and
under the AUD RC Tranche shall be given by email. Each such notice must be received by the
AdministrativeApplicable
Agent not later than (i) with respect to a Committed RC
59
Borrowing denominated in US
Dollars, 10:00 a.m. two Business Days prior to the requested date of any such Committed RC Borrowing of, conversion to or continuation of such Eurocurrency Rate Committed RC Loans or of any conversion of Eurocurrency Rate Committed RC Loans to Base Rate Committed RC
Loans, (ii) with respect to a Committed RC Borrowing denominated in Euro, 10:00 a.m. four
Business Days prior to the requested date of any such Committed RC Borrowing of, conversion to or continuation of such Eurocurrency Rate Committed RC Loans, (iii) with respect to a Committed RC
Borrowing denominated in Australian Dollars, 10:00 a.m. four Business Days prior to the requested date of any
such Committed RC Borrowing or any continuation of Australian Dollar RC Loans, or (iv) 12:00 p.m. on the requested date of any Borrowing of Base Rate
Loansthe applicable Notice Deadline. Each
telephonic notice by
thea Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the
AdministrativeApplicable
Agent of a written Committed RC Loan Notice or Term Loan
Notice, as applicable, appropriately completed and signed by a Responsible Officer of thesuch Borrower. Each Borrowing of, conversion to or continuation of
Eurocurrency Rate Committed RC Loans shall be in
aan
aggregate principal amount of (i) US$500,000 or a whole multiple of
US$100,000not less than the Borrowing Minimum or a Borrowing Multiple in excess thereof, in respect of Eurocurrency Rate Committed RC Loans denominated in US Dollars and (ii) 500,000
or a whole multiple of 100,000 in excess thereof, in respect of Eurocurrency Rate Committed RC Loans denominated in Euro, and shall consist of
Eurocurrency Rate Committed RC Loans of the same Type (with respect to
US Dollar Loans) and be made simultaneously by the
applicable Lenders ratably according to their respective
applicable Commitments. Except as provided in
Section 2.05(c), each such Borrowing of or conversion to Base Rate Loans shall be in a principal amount of US$100,000 or a whole multiple of US$100,000 in
excess thereof. Each Borrowing or continuation of Multicurrency Committed RC Loans denominated in Australian Dollars shall be in a principal amount of A$500,000 or a whole multiple of A$100,000 in excess thereof, and shall be made simultaneously by
the Lenders with Multicurrency RC Credit Commitments ratably according to their Multicurrency RC Credit Commitments. Except as provided in Sections 2.04(c) and
2.05(c), each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of US$100,000 or a whole multiple of US$100,000 in excess thereof.
(b) Each Committed RC Loan Notice (whether telephonic or written) may be provided by an authorized representative of the applicable Borrower or, in the case of a Committed RC Loan Notice for a Multicurrency Committed RC Loan or a USD Committed RC Loan, an authorized representative of Safe Harbor or, in the case of a GBP
Committed RC Loan or a Multicurrency Committed RC Loan, an authorized representative of Park Holidays, in each case on behalf
of the
BorrowerOperating
Partnership (and for the avoidance of doubt, (x) the BorrowerOperating Partnership shall be deemed to be the borrower in respect of
all Loans advanced pursuant to a Committed RC Loan Notice delivered by Safe Harbor andor Park Holidays, (y) any Committed RC Loan Notice delivered by
Safe Harbor or Park Holidays in accordance herewith shall
be deemed to have the same effect hereunder as a Committed RC Loan Notice delivered by the BorrowerOperating Partnership and
(z) Borrowings under the AUD RC Tranche shall be credited as specified on Schedule 2.02(b)) and shall specify (i) whether
thesuch Borrower is requesting a Committed RC Borrowing, a conversion of USD Committed RC Loans from one Type to the other, or a continuation of Floating Rate Committed RC Loans, (ii) the Tranche under which such Borrowing is requested, (iii) in the case of a Borrowing
consisting of a Multicurrency Committed RC Loan, the currency of such Loan, (iv) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (v) the principal amount of Committed RC Loans
to be borrowed, converted or continued, (vi) the Type of Committed RC Loans to be borrowed or to which existing USD Committed RC Loans are to be converted, (vii) if
applicablewith respect to any Floating Rate Loan, the duration of the Interest Period with respect thereto,
(viii) with respect to any USD Committed RC Loans having an
Interest Period of one month, whether such Loan will be repaid in 7 days, and (ix)Daily RFR Loan, the tenor with respect thereto (which shall be one, three or six months), (ix) in the case of a Borrowing by
the Operating Partnership under the Multicurrency RC Tranche and/or the USD RC Tranche, as applicable, whether the funds from such Borrowing will be credited by the AdministrativeApplicable Agent to the account of the Borrower or the
60
account of Safe
HarborOperating Partnership, the Parent Guarantor, Safe Harbor or Park Holidays and
(x) with respect to a Tranche having more than one Borrower, the Borrower for such Loan. Each Term Loan
Notice (whether telephonic or written) shall specify the requested date of the Borrowing (which shall be a Business Day). If, with respect to Loans denominated in US Dollars, the applicable Borrower fails to specify a Type of Loan in a Committed RC
Loan Notice or if the applicable Borrower fails to give a
timely notice requesting a conversion or continuation, then the applicable Loans shall be made as, continued as
and/or converted to, Base Rate Loans. If, with respect to
any Floating Rate Loans denominated in any currency other than US Dollars, the applicable Borrower fails to give a timely notice requesting a continuation, then the applicable Loans shall be continued as Floating Rate Loans with an Interest Period
of one month. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurocurrency Rate Committed RCTerm
SOFR Loans. If
thea Borrower
(1) requests a Borrowing of, conversion to, or continuation of EurocurrencyFloating Rate Committed RC Loans in any such Committed RC Loan Notice, but fails to specify an Interest Period or (2) requests a Borrowing or continuation of Australian Dollar RC Loans in any Committed RC Loan Notice, but fails to specify an Interest
Period, then in each case such Loan will be deemed to have specified an Interest Period of one month. If the Interest Periods of two or more Floating Rate Loans within a single Tranche
and in the same currency end on the same date, those Floating Rate Loans will be consolidated into, and treated as, a single Floating Rate Loan on the last day of the Interest Period. If a Borrower requests a Borrowing of Daily RFR Loans, but fails to specify a tenor, then in each case such Loan will be
deemed to have specified a tenor of one month. With respect to each Loan under the AUD RC Tranche, the Operating Partnership shall deliver a Committed RC Loan Notice for a Borrowing on the applicable Notice Deadline under the AUD RC Tranche prior to
the termination of the then-applicable Interest Period or shall pay the amount of such Borrowing on the last day of such Interest Period.
(c) Following receipt of a Committed RC Loan Notice or a Term Loan Notice, the AdministrativeApplicable Agent shall promptly notify each applicable Lender of the amount of its Applicable Percentage of the Committed RC Loans
or Term Loans, as applicable, and if no timely notice of a conversion or continuation is provided by the
applicable Borrower, the Administrative Agent shall notify
each such Lender of the details of any automatic conversion
to Base Rate Loans described in the preceding subsection
clause (a) for Loans
denominated in US Dollars. In the case of a Committed RC Borrowing,
eachFollowing such notice, each applicable
Lender shall make the amount of its Committed RC Loan or Term Loan, as applicable, available to the
AdministrativeApplicable
Agent in immediately available funds at the Administrative Agents Office
or the Australian Administrative Agents
Office, as applicable, not later than 1:00 p.m. on the Business Day specified in the applicable Committed RC Loan
NoticeFunding Deadline. Upon satisfaction
of the applicable conditions set forth in Section 5.02 (and, if such Borrowing is the initial Credit Extension, Section 5.01), the
AdministrativeApplicable
Agent shall make all funds so received available to the
applicable Borrower in like funds as received by the
AdministrativeApplicable
Agent on the requested date of Borrowing as set forth in the Committed RC Loan
Notice or Term Loan Notice, as applicable, either by
(i) crediting the account of the applicable Borrower
or (if applicable) Safe Harbor or Park Holidays, as specified in the applicable Committed RC Loan
Notice, on the books of the
AdministrativeApplicable
Agent with the amount of such funds (and for the avoidance of doubt, crediting of the account of Safe Harbor
or Park Holidays shall be deemed to have the same effect
hereunder as crediting the account of the
BorrowerOperating
Partnership (which shall be deemed to be the borrower for all purposes in respect of each
such Loan)) or (ii) wire transfer of such funds, in
each case in accordance with instructions provided to (and reasonably acceptable to) the AdministrativeApplicable Agent by the applicable Borrower or, Safe Harbor or Park Holidays, as applicable; provided, however, that if, on the date the Committed RC Loan Notice
or Term Loan Notice with respect to such Borrowing is given
by thea Borrower, there are L/C Borrowings outstanding under the applicable
Tranche, then the proceeds of such Borrowing, first, shall be applied to the payment in full of any such L/C Borrowings, and second, shall be made available to thesuch Borrower as provided above.
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(d) Except as otherwise provided herein, a EurocurrencyFloating Rate Committed RC Loan may be continued or converted only on the last day
of an Interest Period for such Eurocurrency Rate Committed RC Loan and an Australian Dollar RC Loan may only be continued on the last day of an Interest Period for such
Australian Dollar RCFloating Rate Loan.
During the existence of a Default, no Loans may be requested as Floating Rate Loans, converted to Eurocurrency Rate Committed RCTerm SOFR Loans or continued as Floating Rate Loans or Term SOFR Loans without the consent of the Required Lenders.
(e) The
AdministrativeApplicable
Agent shall promptly notify the BorrowerBorrowers and the Lenders of the interest rate applicable to any
Interest Period for Floating Rate Loans upon determination of such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the
BorrowerBorrowers
and the Lenders of any change in the rate publicly announced by Citibank as its base rate used in determining the Base Rate promptly following the public announcement of such change.
(f) After giving effect to all Borrowings, all conversions of Loans denominated in US Dollars from one Type to the
other, and all continuations of Loans as the same Type, there shall not be more than sixteentwenty-five (1625) Interest Periods in effect with respect to Loansand Borrowings of Daily RFR Loans outstanding at any time in the
aggregate.
(g) The BorrowerBorrowers irrevocably and for value authorizes each Multicurrency RC Lender (at the option of such Lender) from time to time (i) to prepare reliquification bills of exchange in relation to any Australian Dollar
RC Loan and (ii) to sign them as drawer or endorser in the name of and on behalf of the applicable Borrower (provided that thesuch Borrowers obligations as drawer or endorser under any such reliquification bill is non-recourse). The total face amount of reliquification bills prepared by any such
Lender and outstanding in relation to any such Australian Dollar RC Loan must not at any time exceed
(A) such Lenders share of the principal amount of such Loan plus (B) the total interest on that share over the relevant Interest Period. Reliquification bills must mature on or before the last day of the relevant Interest
Period. Each such Lender may realize or deal with any reliquification bill prepared by it as it thinks fit. Each such Lender shall indemnify the
applicable Borrower on demand against all liabilities,
costs and expenses incurred by
thesuch Borrower by reason of it being a party to a reliquification bill prepared by such Lender. The immediately preceding sentence shall not affect any obligation of the applicable Borrower under any Loan Document. In particular, the
obligations of the
BorrowerBorrowers
to make payments under the Loan Documents are not in any way affected by any liability of any Lender, contingent or otherwise, under the indemnity in this Section 2.02(g). If a
reliquification bill prepared by any such Lender is presented to
thea Borrower and
thesuch Borrower discharges it by payment, the amount of that payment will be deemed to have been applied against the moneys payable to such Lender hereunder. Only a Multicurrency RC Lender will have recourse to theany Borrower under any reliquification bill.
2.03 [Intentionally Omitted.]
2.04 Letters of Credit.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) each of the L/C Issuers agrees, in reliance upon the
agreements of the Multicurrency RC Lenders set forth in this
Section 2.04, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the
Borrowerdenominated in US Dollars and Letters of Credit or Bank Guarantees issued in Sterling,
Australian Dollars, Canadian Dollars or Euro (the Letters of
Credit)
for the respective accounts of Multicurrency Borrowers in amounts not to exceed such L/C Issuers Letter of Credit Commitment, and to amend or extend Letters of Credit previously issued by
it, in accordance with
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subsection
clause (b) below, and
(2) to honor drawings under Letters of Credit issued by it; (B) the applicable Existing L/C Issuer shall act as the L/C Issuer in respect of each Existing Letter of Credit; and (C) the Lenderseach Multicurrency
RC Lender severally
agreeagrees to participate in Letters of Credit issued for the account of thea Multicurrency Borrower under the Multicurrency RC Tranche and any drawings thereunder (and with
respect to the Existing Letters of Credit, each Applicable
Lender shall be deemed to have, as of the date hereofAmendment
No. 1 Effective Date, participated therein);
provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings shall not exceed the Maximum Available Amount, (y) the aggregate Outstanding Amount of the USD-AMulticurrency Committed RC Loans of any Lender, plus such Lenders Applicable Percentage of the Outstanding Amount of all L/C
Obligations,
with respect to Letters of Credit shall not exceed such Lenders
Multicurrency RC Commitment plus such Lenders Applicable Percentage of the Outstanding Amount of all Swing Line
Loans shall not exceed such
Lenders USD-A RC Commitment, and (z) the Outstanding Amount of the L/C Obligations under the Multicurrency RC Tranche shall not exceed the Letter of Credit
Sublimit.
(ii) Each request by thea Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by thesuch Borrower that the L/C Credit Extension so requested complies with
the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the
BorrowersBorrowers
ability to obtain Letters of Credit shall be
fully revolving, and accordingly the
BorrowerBorrowers
may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have
been issued pursuant hereto, and from and after the
ClosingAmendment
No. 1 Effective Date shall be subject to and
governed by the terms and conditions hereof.
(iii)
(ii) No L/C Issuer shall issue any Letter of Credit, if:
(A) except as otherwise provided in Section 2.04(b)(iii) the expiry date of the requested Letter of Credit would occur more than twelve months after the date of issuance, unless the Required Lenders have approved such expiry date; or
(B) the expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date.
(iv)
(iii) No L/C Issuer shall 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 L/C Issuer from issuing the Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon such L/C Issuer with respect to the Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such L/C Issuer in good faith deems material to it;
(B) the issuance of the Letter of Credit would violate one or more policies of such L/C Issuer applicable to letters of credit generally;
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(C) the Letter of Credit is requested to be denominated in a currency other than US Dollars, Canadian Dollars, Euro or Sterling;
(D) any Lender is at that time a Defaulting Lender, unless such L/C Issuer has entered into arrangements, including the
delivery of Cash Collateral, satisfactory to such L/C Issuer (in its sole discretion) with the BorrowerBorrowers or such Lender to eliminate such L/C Issuers actual or
potential Fronting Exposure (after giving effect to Section 2.18(a)(iv)) 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 L/C
Obligations as to which such L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion, or
(E) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(v)
(iv) No L/C Issuer shall amend any Letter of Credit if such L/C Issuer would not be permitted at such time to issue the
Letter of Credit in its amended form under the terms hereof.
(vi)
(v) No L/C Issuer shall be under any obligation to amend any Letter of Credit if (A) such L/C Issuer 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.
(vii)
(vi) Each L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents
associated therewith, and each L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article X with respect to any acts taken or omissions suffered by such L/C Issuer 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 X included such L/C Issuer with respect to
such acts or omissions, and (B) as additionally provided herein with respect to such L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit.
(i) Each Letter of Credit shall be issued or amended,
as the case may be, upon the request of the applicable Borrower
delivered to an L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of
thesuch Borrower. Such Letter of Credit Application must be received by such L/C Issuer and the Administrative Agent not later than 11:00
a.m.11:00 A.M. (New York time) at least two
Business Days (or such later date and time as the Administrative Agent and such L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. The applicable Borrower shall have the right to select the L/C Issuer for
each Letter of Credit, subject to each L/C Issuers Letter of Credit Commitment. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to such L/C
Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents
to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested Letter of
Credit; and
(H) the currency of the requested Letter of Credit (which currency shall be one of US Dollars, Canadian Dollars, Euro and
Sterling), (I) at
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any time that there is more than one Multicurrency Borrower, the
name of the Borrower requesting such Letter of Credit and (J) such other matters as such L/C Issuer may require. In the case of a request for an amendment of any outstanding Letter of Credit,
such Letter of Credit Application shall specify in form and detail satisfactory to such L/C Issuer (AI) the Letter of Credit to be amended; (BII) the proposed date of amendment thereof (which shall be a Business Day); (CIII) the nature of the proposed amendment; and (DIV) such other matters as such L/C Issuer may require. Additionally, thesuch Borrower shall furnish to such L/C Issuer and the Administrative
Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as such L/C Issuer or the Administrative Agent may require.
(ii) Promptly after receipt of any Letter of Credit Application, the applicable
L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the applicable Borrower and, if not, such L/C Issuer will provide the
Administrative Agent with a copy thereof. Unless such L/C Issuer has received written notice from any Lender, the Administrative Agent or any Loan Party, at least one Business Day prior to the requested date of issuance or amendment of the
applicable Letter of Credit, that one or more applicable conditions contained in Article V shall not then be satisfied, then, subject to the terms and conditions hereof, such L/C Issuer shall, on the requested date, issue a Letter of Credit
for the account of the applicable Borrower or enter into
the applicable amendment, as the case may be, in each case in accordance with such L/C Issuers usual and customary business practices, and such L/C Issuer shall give the Administrative Agent and each Lender prompt notice thereof by telex, telecopier or e-mail. Immediately upon the issuance of each Letter of Credit,
each
LenderMulticurrency RC
Lender (in each case and in such capacity, an Applicable
Lender)
shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from such L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such
Lenders Applicable Percentage times the amount of such Letter of Credit.
(iii) If the applicable Borrower so requests in any applicable Letter of Credit Application, the applicable L/C Issuer shall issue a Letter of Credit that has automatic extension provisions (each, an Auto-Extension Letter of Credit); provided that any such Auto-Extension Letter of Credit must permit such L/C Issuer to prevent any such extension at least once in each twelve-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 in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) such L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided, however, that such L/C Issuer shall not permit any such extension if an Event of Default is continuing hereunder.
(iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the applicable L/C Issuer will also deliver to the applicable Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.
(v) Safe Harbor may submit Letter of Credit Applications (and requests to amend existing Letters of Credit) on behalf of the
BorrowerOperating
Partnership, and any such Letter of Credit Application (or amendment request) shall be deemed to have the same effect hereunder as if the same were submitted by the BorrowerOperating
Partnership (which shall be deemed to be the applicant for all purposes in respect of each
such Letter of Credit).
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(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the
applicable L/C Issuer shall notify the applicable Borrower and the
Administrative Agent thereof. Not later than 11:00
a.m11:00 A.M. on the date of any payment by
such L/C Issuer under a Letter of Credit (each such date, an Honor Date), thesuch Borrower shall reimburse such L/C Issuer through the Administrative
Agent in an amount equal to the amount of such drawing. If
thesuch Borrower fails to so reimburse such L/C Issuer by such time, the Administrative Agent shall promptly notify each
Applicable Lender of the Honor Date, the amount of the
unreimbursed drawing (the Unreimbursed Amount), and the amount of such Lenders Applicable Percentage thereof. In such event, thesuch Borrower shall be deemed to have requested in the case of a Letter of Credit denominated in (A) US Dollars, a Committed RC Borrowing of Base Rate Loans under the
USD-A RC
TrancheMulticurrency RC Tranche, (B) Sterling, a Committed RC Borrowing of Daily RFR Loans under the Multicurrency RC Tranche, (C) Euro, a Committed RC Borrowing of Eurocurrency Rate Loans under the Multicurrency RC Tranche having an Interest Period of one month commencing on the date of the advance or deemed advance of such Loans and
(D) Canadian Dollars, a Committed RC Borrowing of CDOR Loans under the Multicurrency RC Tranche
having an Interest Period of one month commencing on the date of the advance or deemed advance of such
Loans; in each case to be disbursed on the Honor Date
in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal amount of Base
Ratethe applicable Loans, but subject to
availability under the Unused
USD-AMulticurrency
RC Commitments and the conditions set forth in Section 5.02 (other than the delivery of a Committed RC Loan Notice). Any notice given by an L/C Issuer or the Administrative Agent
pursuant to this Section 2.04(c)(i) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of
such notice.
(ii) Each Lender shall upon any notice pursuant to
Section 2.04(c)(i) make funds available (and the Administrative Agent may apply Cash Collateral provided for this purpose) for the account of an L/C Issuer at the Administrative Agents Office in an amount equal to its
Applicable Percentage of the Unreimbursed Amount
onno later
than
(ix) three Business Days after the Business Day on which demand therefor
is made by the applicable L/C Issuer, provided that
notice of such demand is given not later than 11:00 a.m. (New York City time) on such Business
Day, or (ii) the first Business Day next succeeding such demand
ifthe applicable L/C Purchasing Notice Deadline, or (y) four Business Days after the Business Day on which demand therefor is made by the applicable L/C Issuer if
such notice of such demand is given after such timeany applicable L/C Purchasing Notice Deadline, whereupon, subject to the
provisions of Section 2.04(c)(iii), each Lender that so makes funds available shall be deemed to have made a Base Rate Committed RC Loan to
theLoan, Term SOFR Loan, Daily RFR Loan, CDOR Loan or Eurocurrency Rate Loan, as applicable, to
the applicable Borrower in such amount. The Administrative Agent shall remit the funds so received to such L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Committed RC Borrowing of Base Rate Loans, Daily RFR Loans, CDOR Loans or Eurocurrency Rate Loans, as applicable, because the conditions set forth in Section 5.02 cannot be satisfied or for any other reason, the applicable Borrower shall be deemed to have incurred from the applicable L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Lenders payment to the Administrative Agent for the account of such L/C Issuer pursuant to Section 2.04(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender
66
in satisfaction of its participation obligation under this Section 2.04. Each L/C Advance shall bear interest at (A) in the case of Letters of Credit denominated in US Dollars, the Base Rate, (B) in the case of Letters of Credit denominated in Sterling, the Daily RFR Rate, (C) in the case of Letters of Credit denominated in Euro, the Eurocurrency Rate for a one-month Interest Period and (D) in the case of Letters of Credit denominated in Canadian Dollars, CDOR for a one-month Interest Period.
(iv) Until each Lender funds its Committed RC Loan or L/C Advance pursuant to this Section 2.04(c) to reimburse any L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lenders Applicable Percentage of such amount shall be solely for the account of such L/C Issuer.
(v) Each Lenders obligation to make Committed RC Loans or L/C Advances to reimburse any L/C Issuer for amounts drawn
under Letters of Credit, as contemplated by this Section 2.04(c), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other
right which such Lender may have against any L/C Issuer,
theany Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Lenders obligation to make Committed RC Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 5.02 (other than
delivery by
thea Borrower of a Committed RC Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the obligation of
theany Borrower to reimburse any L/C Issuer for the amount of any payment made by such L/C Issuer under any Letter of Credit, together with interest as provided herein.
(vi) If any Lender fails to make available to the Administrative Agent for the account of any L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(ii), then, without limiting the other provisions of this Agreement, such L/C Issuer 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 L/C Issuer at a rate per annum equal to the Federal Funds Rate. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lenders Committed RC Loan included in the relevant Committed RC Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of any L/C Issuer submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after any L/C Issuer has made a payment under any Letter of Credit and has received from any Lender such
Lenders L/C Advance in respect of such payment in accordance with Section 2.04(c), if the Administrative Agent receives for the account of such L/C Issuer any payment in respect of the related Unreimbursed Amount or
interest thereon (whether directly from
thea Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Applicable Percentage thereof in the same
funds as those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the account of any L/C Issuer pursuant to Section 2.04(c)(i) is required to be returned and is returned under any of the circumstances described in Section 11.05 (including pursuant to any settlement entered into by such L/C Issuer in its reasonable discretion), each Lender shall pay to the Administrative Agent for the
67
account of such L/C Issuer its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders under this clause (ii) shall survive the payment in full of the Obligations and the termination of this Agreement.
(e) Obligations Absolute. The obligation of the
BorrowerBorrowers
to reimburse the L/C Issuers for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the
terms of this Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of Credit, this Agreement, any other Loan Document, or any other agreement or instrument relating thereto (all of the foregoing being, collectively, the L/C Related Documents);
(ii) any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations of theany Borrower in respect of any L/C Related Document or any other amendment or waiver of or any consent to departure from all or any of the L/C Related Documents;
(iii) the existence of any claim, counterclaim, setoff, defense or other right that theany 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 L/C
Issuer 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;
(iv) any draft, demand, certificate or other document presented under such 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;
(v) any payment by any L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by any L/C Issuer under such 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 Debtor Relief Law;
(vi) any exchange,
release or non-perfection of any Cash Collateral or other collateral, or any release or amendment or waiver of or consent to departure from the Guaranties or any other guarantee, for all or any of the
Obligations of
theany Borrower in respect of the L/C Related Documents; or
(vii) any other
circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, theany Borrower or any Subsidiary.
The applicable 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 thesuch Borrowers instructions or other irregularity, thesuch Borrower will immediately notify the applicable L/C Issuer. The BorrowerBorrowers shall be conclusively deemed to have waived any such claim
against such
68
L/C Issuer and its correspondents unless such notice is given as aforesaid. Notwithstanding the foregoing, the
BorrowerBorrowers
shall not be precluded from asserting any claim for direct damages suffered by the BorrowerBorrowers in determining whether a request presented under any Letter of
Credit issued by it complied with the terms of such Letter of Credit, provided any liability of such L/C Issuer shall be subject to the determination by a court of competent jurisdiction by final and nonappealable judgment that such direct damages
resulted from the gross negligence or willful misconduct of such L/C Issuer.
(f) Role of the L/C Issuers. Each
Lender and
theeach Borrower
agreeagrees that, in paying any drawing under a Letter of Credit, the L/C Issuers shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the
Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the Administrative Agent, any L/C Issuer, any of their respective
Related Parties nor any correspondent, participant or assignee of any L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Required
Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of
Credit or Issuer Document. The
BorrowerBorrowers
hereby
assumesassume
all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not,
preclude the
BorrowersBorrowers
pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other agreement. None of the Administrative Agent, any L/C Issuer, any of their respective Related Parties nor any correspondent, participant or assignee of any L/C Issuer shall be liable or
responsible for any of the matters described in clauses (i) through (v) of Section 2.04(e); provided, however, that anything in such clauses to the contrary notwithstanding, the BorrowerBorrowers may have a claim against an L/C Issuer, and such L/C Issuer may be liable to the BorrowerBorrowers, to the extent, but only to the extent, of any direct, as
opposed to consequential or exemplary, damages suffered by the
BorrowerBorrowers
which the Borrower
provesBorrowers prove were caused by such
L/C Issuers willful misconduct or gross negligence or such L/C Issuers willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, any L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of
any notice or information to the contrary, and such L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.
(g) Applicability of ISP and UCP. Unless otherwise expressly agreed by the applicable L/C Issuer and the applicable Borrower when a Letter of Credit is issued (including any
such agreement applicable to an Existing Letter of Credit), the Borrower
agreesBorrowers agree that each Letter of
Credit shall be governed by the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce (ICC) Publication No. 600 (2007 Revision) or, at such L/C Issuers option, such later revision
thereof in effect at the time of issuance of the Letter of Credit (as so chosen for the Letter of Credit, the UCP) or the International Standby Practices 1998, ICC Publication No. 590 or, at such L/C Issuers option,
such later revision thereof in effect at the time of issuance of the Letter of Credit (as so chosen for the Letter of Credit, the ISP, and each of the UCP and the ISP, an ICC Rule). The L/C Issuers
privileges, rights and remedies under such ICC Rules shall be in addition to, and not in limitation of, its privileges, rights and remedies expressly provided for herein. The UCP and the ISP (or such later revision of either) shall serve, in the
absence of proof to the contrary, as evidence of general banking usage with respect to the subject matter thereof. The Borrower agreesBorrowers agree that for matters not addressed by the chosen ICC Rule,
the Letter of Credit shall be subject to and governed by the laws of the State of New York and applicable United States Federal laws. If, at the
applicable Borrowers request, the Letter
69
of Credit expressly chooses a state or country law other than New York State law and United States Federal law or is silent with respect to the choice of an ICC Rule or a governing law, no L/C Issuer shall be liable for any payment, cost, expense or loss resulting from any action or inaction taken by such L/C Issuer if such action or inaction is or would be justified under an ICC Rule, New York law, applicable United States Federal law or the law governing the Letter of Credit.
(h) Letter of Credit Fees. The BorrowerBorrowers shall pay to the Administrative Agent for the account of each Lender in accordance with its Applicable Percentage a Letter of Credit fee (the Letter of Credit Fee) for each Letter of
Credit equal to the Applicable Rate for
EurocurrencyFloating
Rate Committed
RCLoans and Daily RFR Loans times
the daily amount available to be drawn under such Letter of Credit; provided, however, any Letter of Credit Fees otherwise payable for the account of a Defaulting Lender with respect to any Letter of Credit as to which such Defaulting
Lender has not provided Cash Collateral satisfactory to the applicable L/C Issuer pursuant to this Section 2.04 shall be payable, to the maximum extent permitted by applicable Law, to the other Lenders in accordance with
the upward adjustments in their respective Applicable Percentages allocable to such Letter of Credit pursuant to Section 2.18(a)(iv), with the balance of such fee, if any, payable to such L/C Issuer for its own account. For
purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. Letter of Credit Fees shall be (i) due
and payable on the first Business Day after the end of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on
demand and (ii) computed on a quarterly basis in arrears. If there is any change in the Applicable Rate during any quarter, the daily amount available to be drawn under each Letter of Credit shall be computed and multiplied by the Applicable
Rate separately for each period during such quarter that such Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein, upon the request of the Required Lenders, while any Event of Default exists, all Letter of Credit
Fees shall accrue at the Default Rate.
(i) Documentary and Processing Charges Payable to L/C Issuer. The
BorrowerBorrowers
shall pay directly to the applicable L/C Issuer for its own account the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of such L/C Issuer
relating to letters of credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.
(j) Conflict with Issuer Documents. In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.
(k) Independence. The
Borrower
acknowledgesBorrowers acknowledge that the
rights and obligations of any L/C Issuer under each Letter of Credit issued by it are independent of the existence, performance or nonperformance of any contract or arrangement underlying the Letter of Credit, including contracts or arrangements
between such L/C Issuer and
theany Borrower and between
theany Borrower and the beneficiary of the Letter of Credit. No L/C Issuer shall have any duty to notify theany Borrower of its receipt of a demand or a draft, certificate or other
document presented under a Letter of Credit or of its decision to honor such demand. Such L/C Issuer may, without incurring any liability to theany Borrower or impairing its entitlement to reimbursement under this
Agreement, honor a demand under a Letter of Credit despite notice from
theany Borrower of, and without any duty to inquire into, any defense to payment or any adverse claims or other rights against the beneficiary of the Letter of Credit or any other Person. No L/C Issuer shall have any
duty to request or require the presentation of any document, including any default certificate, not required to be presented under the terms and conditions of a Letter of Credit. No L/C Issuer shall have any duty to seek any waiver of discrepancies
from theany Borrower, or any duty to grant any waiver of discrepancies that theany Borrower approves or requests. Except to the extent provided in the
applicable Letter of Credit, no L/C Issuer shall have any duty to extend the expiration date or term of a Letter of Credit or to issue a replacement Letter of Credit on or before the expiration date of a Letter of Credit or the end of such term.
70
2.05 Swing Line Loans.
(a) The Swing Line. Subject to the terms and conditions set forth herein, each of the Swing Line Lenders may, in reliance upon the
agreements of the other Lenders set forth in this Section 2.05 and in its sole discretion, make its Pro Rata Swing Line Share of loans
in US Dollars (each such loan, a Swing Line
Loan) to the
BorrowerOperating
Partnership, from time to time on any Business Day during the Availability Period, notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable Percentage of the
Outstanding Amount of
USD-AMulticurrency
Committed RC Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such Lenders Commitment in respect of USD-AMulticurrency Committed RC Loans; provided, however, that after giving effect to any Swing Line Loan, (i) the Total Outstandings shall not exceed the Aggregate Commitments, (ii) the aggregate
Outstanding Amount of Swing Line Loans made by such Swing Line Lender shall not exceed such Swing Line Lenders Swing Line Commitment, (iii) the Swing Line Exposure shall not exceed the Swing Line Sublimit and (iv) the aggregate
Outstanding Amount of the
USD-AMulticurrency
Committed RC Loans of any Lender, plus such Lenders Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lenders Applicable Percentage of the
Outstanding Amount of all Swing Line Loans shall not exceed such Lenders USD-AMulticurrency RC Commitment, and provided, further, that the
BorrowerOperating
Partnership shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other terms and conditions hereof, the
BorrowerOperating
Partnership may borrow under this Section 2.05, prepay under Section 2.06, and reborrow under this Section 2.05. Each
Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of a Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from each Swing Line Lender a risk participation in such
Swing Line Loan in an amount equal to the product of such Lenders Applicable Percentage times the amount of such Swing Line
Loan. Swing Line Loans shall be available only in US
Dollars.
(b)
Borrowing Procedures. Each Swing Line Borrowing shall be made upon the BorrowersOperating
Partnerships
irrevocable notice (or Safe Harbors irrevocable notice on behalf of the BorrowerOperating Partnership) to each of the Swing Line Lenders and the
Administrative Agent, which may be given by telephone. Each such notice must be received by each of the Swing Line Lenders and the Administrative Agent not later than 1:00
p.m1:00 P.M. on the requested borrowing
date, and shall specify (i) the amount to be borrowed, which shall be a minimum of US$100,000, (ii) the requested borrowing date, which shall be a Business Day, and (iii) whether the proceeds of such borrowing shall be credited to the
account of the
BorrowerOperating
Partnership or the account of Safe Harbor. Each such telephonic notice must be confirmed promptly by delivery to the Swing Line Lenders and the Administrative Agent of a written Swing Line Loan
Notice, appropriately completed and signed by a Responsible Officer of the BorrowerOperating Partnership. Promptly after receipt by a Swing Line Lender of
any telephonic Swing Line Loan Notice, such Swing Line Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender will
notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless each of the Swing Line Lenders have received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Lender)
prior to 2:00 p.m.2:00
P.M. (New York time) on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lenders not to make such Swing Line Loan as a result of the limitations set forth in the
first proviso to the first sentence of Section 2.05(a), or (B) that one or more of the applicable conditions specified in Article V is not then satisfied, then, subject to the terms and conditions hereof, each
of the Swing Line Lenders will, not later than 3:00
p.m3:00 P.M. on the borrowing date
specified in such Swing Line Loan Notice, make its Pro Rata Swing Line Share
71
of the requested Swing Line Loan available to the BorrowerOperating Partnership at its office by crediting the account of the
BorrowerOperating
Partnership or the account of Safe Harbor, as applicable, on the books of the Swing Line Lender in immediately available funds. If such notice is received after 1:00 p.m1:00 P.M. on the requested borrowing date, then each Swing Line Lender shall use best efforts to make its Pro Rata Swing Line Share of the requested Swing Line Loan available to the Borrower by 10:00 a.m.Operating
Partnership by 10:00 A.M. (New York time) on the following Business Day, to be disbursed in the manner set forth above. For the avoidance of doubt, any notice of a Swing Line Borrowing delivered
by Safe Harbor in accordance herewith shall be deemed to have the same effect hereunder as a notice of a Swing Line Borrowing delivered by the BorrowerOperating Partnership and crediting of the account of Safe Harbor shall
be deemed to have the same effect hereunder as crediting the account of the BorrowerOperating Partnership (which shall be deemed to be the borrower for all
purposes hereunder in respect of each Swing Line Loan).
(c) Refinancing of Swing Line Loans.
(i) Each of the Swing Line Lenders at any time in its sole discretion may request, on behalf of the BorrowerOperating
Partnership (which hereby irrevocably authorizes the Swing Line Lenders to so request on its behalf), that each Lender make a Base Rate Committed RC Loan in an amount equal to such Lenders Applicable Percentage of the amount of Swing Line Loans then
outstanding. Such request shall be made in writing (which written request shall be deemed to be a Committed RC Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02, without regard to the
minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the aggregate Commitments in respect of Committed RC Loans and the conditions set forth in
Section 5.02. The applicable Swing Line Lender shall furnish the BorrowerOperating Partnership with a copy of the applicable Committed RC Loan
Notice promptly after delivering such notice to the Administrative Agent. Each Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Committed RC Loan Notice available to the Administrative Agent in
immediately available funds (and the Administrative Agent may apply Cash Collateral available with respect to the applicable Swing Line Loan) for the accounts of the Swing Line Lenders at the Administrative Agents Office not later than 1:00 p.m1:00 P.M. on the day specified in such Committed RC Loan Notice, whereupon, subject to Section 2.05(c)(ii), each Lender that so makes funds available shall be deemed to have made a Base Rate
Committed RC Loan to the
BorrowerOperating
Partnership in such amount. The Administrative Agent shall remit the funds so received to the Swing Line Lenders according to each Swing Line Lenders Pro Rata Swing Line Share.
(ii) If for any reason any Swing Line Loan cannot be refinanced by such a
Committed RC Borrowing in accordance with Section 2.05(c)(i), the request for Base Rate Committed RC Loans submitted by a Swing Line Lender as set forth herein shall be deemed to be a request by such Swing Line Lender that each of the Lenders fund its risk participation in the relevant Swing Line Loan and each
Lenders payment to the Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.05(c)(i) shall be deemed payment in respect of such participation.
(iii) If any Lender fails to make available to the Administrative Agent for the accounts of the Swing Line Lenders any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.05(c) by the time specified in Section 2.05(c)(i), the Swing Line Lenders 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 the Swing Line Lender at a rate per annum equal to the Federal Funds Rate. If such Lender pays such amount (with interest and fees
72
as aforesaid), the amount so paid shall constitute such Lenders Committed RC Loan included in the relevant Committed RC Borrowing or funded participation in the relevant Swing Line Loan, as the case may be. A certificate of a Swing Line Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.
(iv) Each Lenders obligation to make Committed RC Loans or to purchase and fund risk participations in Swing Line Loans
pursuant to this Section 2.05(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have
against any Swing Line Lender,
theany Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Lenders obligation to make Committed RC Loans pursuant to this Section 2.05(c) is subject to the conditions set forth in Section 5.02. No such
funding of risk participations shall relieve or otherwise impair the obligation of the BorrowerOperating Partnership to repay Swing Line Loans, together with interest
as provided herein.
(d) Repayment of Participations.
(i) At any time after any Lender has purchased and funded a risk participation in a Swing Line Loan, if a Swing Line Lender receives any payment on account of such Swing Line Loan, such Swing Line Lender will distribute to such Lender its Applicable Percentage thereof in the same funds as those received by such Swing Line Lender.
(ii) If any payment received by a Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by such Swing Line Lender under any of the circumstances described in Section 11.05 (including pursuant to any settlement entered into by such Swing Line Lender in its discretion), each Lender shall pay to the such Swing Line Lender its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Rate. The Administrative Agent will make such demand upon the request of any Swing Line Lender. The obligations of the Lenders under this clause (ii) shall survive the payment in full of the Obligations and the termination of this Agreement.
(e) Interest for Account of Swing Line Lenders. Each Swing Line Lender shall be responsible for invoicing the BorrowerOperating
Partnership for interest on the Swing Line Loans. Until each Lender funds its Base Rate Committed RC
Loan or risk participation pursuant to this Section 2.05 to refinance such Lenders Applicable Percentage of any Swing Line Loan, interest in respect of
such Applicable Percentage shall be solely for the account of the applicable Swing Line Lender.
(f) Payments Directly to
Swing Line Lenders. The
BorrowerOperating
Partnership shall make all payments of principal and interest in respect of the Swing Line Loans directly to the Swing Line Lenders in accordance with each Swing Line Lenders Pro Rata Swing
Line Share of the Swing Line Loans. For the avoidance of doubt, any such payment of principal and/or interest in respect of the Swing Line Loans made by Safe Harbor (or any other Subsidiary) shall be deemed to have the same effect hereunder as a
payment made by the
BorrowerOperating
Partnership.
73
2.06
Prepayments.
(a) .
(a) The BorrowerBorrowers may, upon notice to the
AdministrativeApplicable
Agent, at any time or from time to time voluntarily prepay Committed RC Loans
or Term Loans in whole or in part (without premium or
penalty); provided that (i) such notice must be received by the AdministrativeApplicable Agent not later than 11:00 a.m. (A) three Business Days prior to
any date of prepayment of Floating Rate Loans and (B) on the date of
prepaymentin the case of Base Rate
Loans, same day notice received by 12:00 P.M. (New York time),
(B) in the case of Loans under the AUD RC Tranche, three Business Days notice
received no later than 10:00 A.M. (Sydney time), (C) in the case of Loans under the GBP RC Tranche, four Daily RFR Business Days notice
received no later than 10:00 A.M. (London time), (D) in the case of Loans under the Multicurrency RC Tranche that are (I) denominated in Canadian Dollars or Euro, three Business
Days notice
received no later than 2:00 P.M. (New York time), (II) denominated in Sterling, four Daily RFR
Business
Days notice
received no later than 10:00 A.M. (New York time), (III) denominated in US Dollars (other than Base
Rate Loans), two U.S. Government Securities Business Days notice received no later than
2:00 P.M. (New York time), (E) in the case of Loans under the USD RC Tranche (other than Base Rate
Loans), two U.S. Government Securities Business Days notice received no later than
2:00 P.M. (New York time) and (F) in the case of Loans under the Term Loan Tranche, four Daily RFR Business Days notice
received no later than 10:00 A.M. (New York
time); (ii) any prepayment of USD Committed RCUS Dollar Loans shall be in a principal amount of US$2,000,000 or a
whole multiple of US$500,000 in excess thereof; (iii) any prepayment of Euro RC Loans shall be in a
principal amount of 1,000,000 or a whole multiple of 500,000 in excess thereof; (iv) any prepayment of Australian Dollar RC Loans shall be in a principal amount of A$2,000,000 or a whole multiple of A$500,000 in excess thereof; and (v) any prepayment of Canadian Dollar Loans shall be in a principal
amount of CND$2,000,000 or a whole multiple of CND$500,000 in excess thereof; (vi) any prepayment of
Sterling Loans shall be in a principal amount of £2,000,000 or a whole multiple of
£500,000
in excess thereof and (vii) any prepayment of
Base Rate Loans shall be in a principal amount of US$100,000 or a whole multiple of US$100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of
such prepayment and the Type(s) of Loans to be prepaid and, if Floating Rate Loans are to be prepaid, the Interest Period(s) of such Loans. The
AdministrativeApplicable
Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lenders Applicable Percentage, in respect of the applicable Tranche, of such prepayment. Unless the Borrower revokes such notice at least one
(1) Business Day prior to the
specifiedAny prepayment date, the Borrower shall make such prepayment and the
paymentof a Loan shall be made in the
amount specified in
suchthe
applicable notice of prepayment, shall be due and payable on the date specified therein. Any prepayment of a Floating Rate Loan and shall be
accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05. Subject to Section 2.18, each such prepayment shall be applied to
the Loans of the applicable Lenders in accordance with
their respective Applicable Percentages in respect of USD-A Committed RC Loans, USD-B Committed RC Loans or Multicurrency Committed RC Loans, asthe applicable Tranche.
(b) The BorrowerOperating Partnership may, upon notice to the Swing Line Lenders (with a
copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lenders and the
Administrative Agent not later than 1:00
p.m.1:00 P.M. (New York time) on the date
of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of US$100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Borrower, the BorrowerOperating
Partnership, the Operating Partnership shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
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(c) If for any reason the Total Outstandings at any time exceed the Maximum Available Amount
then in effect, the
BorrowerBorrowers
shall within three (3) Business Days after notice from the Administrative Agent (i) prepay Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess;
provided, however, that the
BorrowerBorrowers
shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.06(c) unless after the prepayment in full of the Loans the Total Outstandings exceed the
Maximum Available Amount then in effect and/or (ii) add one or more additional Unencumbered Assets such that Total Outstandings no longer exceed the Maximum Available Amount then in effect.
(d) If the Facility Exposure under the Multicurrency RC Credit
Trancheattributable to any Tranche or Subfacility (which, in the case of each Tranche and
Subfacility, shall be expressed in US Dollars or the US Dollar Equivalent in the case of any Loans
denominated in any currency other than US Dollars) shall at any time exceed 105% of the Multicurrency RC
Creditaggregate Commitments, the
then allocable to such Tranche or Subfacility, as applicable, then the applicable Borrower shall, within five Business Days after written notice thereof shall have been given to the
applicable Borrower by the Administrative Agent, prepay
an aggregate principal amount of the Australian Dollar RC Loans and/or Eurocurrency Rate Committed RC Loans in an amount equal to the amount by which the Facility Exposure attributable to the Multicurrency RC Credit Tranche following such prepayment shall not
exceed the aggregate Multicurrency RC Credit Commitments.Cash Collateralize the L/C Obligations
in an aggregate amount equal to such excess.
(e)
For the avoidance of doubt, any payment or prepayment of principal and/or interest in respect of the Loans made by Safe Harbor
or Park Holidays (or any other Subsidiary) in accordance herewith
shall be deemed to have the same effect hereunder as a payment or prepayment made by the BorrowerOperating Partnership.
2.07 Termination or Reduction of Commitments.
(a) Optional. The BorrowerBorrowers may, upon notice to the Administrative Agent, terminate the
Aggregate Commitments, or from time to time permanently reduce the Aggregate Commitments; provided that (i) any such notice shall be received by the Administrative Agent not later than 11:00 a.m11:00 A.M. five Business Days prior to the date of termination or reduction, provided, however, the Borrowerapplicable Borrowers may revoke such notice prior to the scheduled date
of termination or reduction, (ii)
[reserved]provided that, in the case of the AUD RC Tranche, the applicable Borrower provides
notice of such revocation not later than 11:00 A.M. three (3) Business Days prior to the proposed day
of termination or reduction, (ii) such notice shall state whether the termination or reduction relates
to Committed RC Loans or Term Loans, (iii) any such partial reduction shall be in an aggregate amount of US$10,000,000 (or the
US Dollar Equivalent thereof) or any whole
multiple of US$1,000,000 (or the US Dollar Equivalent thereof) in excess thereof, (iv) theno Borrower shall not terminate or reduce the Aggregate Commitments if, after
giving effect thereto and to any concurrent prepayments hereunder, the Total Outstandings would exceed the Aggregate Commitments, and (v) if, after giving effect to any reduction of the aggregate Commitments in respect of any Committed RC Loans, the Letter of Credit Sublimit for the applicable Tranche or the Swing Line Sublimit for the applicable Tranche exceeds the amount of the aggregate
Commitments in respect of Committed RC Loans allocated to such Tranche, such Sublimit shall be automatically reduced by the amount of such excess. The Administrative Agent will promptly notify the Lenders of any such notice of termination or reduction of the Aggregate Commitments.
Any reduction of the Aggregate Commitments shall be applied to the Commitment of each Lender according to its Applicable Percentage in respect of Committed RC
Loansthe applicable Tranche. All fees
accrued until the effective date of any termination of the Aggregate Commitments shall be paid on the effective date of such termination.
75
2.08 Repayment of Loans; Mandatory Conversions.
(a) The BorrowerBorrowers shall repay to the Lenders on (i) the RCF-ARCF Maturity Date, the aggregate principal amount of the Multicurrency Committed RC Loans, the USD-AAUD Committed RC Loans, the GBP Committed RC Loans, the USD Committed RC
Loans and the Swing Line Loans outstanding on such date,
and (ii) the
RCF-BTerm
Loan Maturity Date, the aggregate principal amount of the USD-B Committed RCTerm Loans outstanding on such date.
(b) The
BorrowerBorrowers
shall repay each Swing Line Loan on the earlier to occur of (i) the date seven (7) Business Days after such Swing Line Loan is made and (ii) the RCF-ARCF Maturity Date.
(c) Notwithstanding anything herein to the contrary, (x) under the circumstances described in Section 3.03(c) and
(y) upon the occurrence and during the
continuance of any Event of Default,
(i)if the applicable Tranche Required Lenders so request in writing to the Administrative Agent and the Borrowers, (A) to the extent operationally feasible, each Floating Rate Loan
in respect of such Tranche will automatically, on the
last day of the then existing Interest Period therefor,
convertbe
converted into a Base Rate Loan or, to the extent
such conversion is not operationally feasible, shall, following such day and solely for the purpose of
calculating the interest rate applicable to such Floating Rate Loan, be deemed to be a Floating Rate Loan denominated in US Dollars and shall accrue interest at the same interest rate applicable to Floating Rate Loans denominated in US Dollars at
such time, (B) with respect to any Tranche other than the GBP RC Tranche, to the extent operationally
feasible, each Daily RFR Loan in respect of such Tranche will automatically immediately be converted into a Base Rate Loan or, to the extent such conversion is not operationally feasible, solely for the purpose of calculating the interest rate
applicable to such Daily RFR Advance, be deemed to be a Floating Rate Loan denominated in US Dollars and shall accrue interest at the same interest rate applicable to Floating Rate Loan denominated in US Dollars at such time and
(iiC) the obligation of the applicable Lenders to make, or to convert Loans into, Floating Rate Loans, and Daily RFR Loans shall be suspended.
2.09 Interest.
(a) Subject to the provisions of clause (b) below and the
immediately succeeding sentence, (i) each Floating Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the applicable Floating Rate for such Interest Period plus
the Applicable Rate; (ii) 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; subsection
and
(iii) each Daily RFR Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date
at a rate per annum equal to the Daily RFR Rate in effect from time to time plus the Applicable Rate and (iv) each Swing Line 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. Notwithstanding the foregoing, during each Rollover
Interest Period for the applicable Rollover Borrowing, the Floating Rate and the Applicable Rate with respect to such Rollover Borrowing shall be as specified on Schedule 1.01(E)
hereto.
(b) (i) If any amount of principal of any Loan is not paid when due (subject to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(ii) If any amount (other than principal of any Loan) payable by
theany Borrower under any Loan Document is not paid when due (subject to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the Required Lenders, such
amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
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(iii) While any Event of Default exists pursuant to
Section 9.01(a)(i) or 9.01(f), the
BorrowerBorrowers
shall pay interest on the principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by
applicable Laws.
(iv) Upon the request of the Required Lenders, while any other Event of Default exists, the
BorrowerBorrowers
shall pay interest on the principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by
applicable Laws.
(v) Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. 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 proceeding under any Debtor Relief Law.
2.10 Fees. In addition to certain fees described in subsections
clauses (h) and (i) of
Section 2.04:
(a) Unused Fee; Facility Fee. At any time that the Leverage Grid is in effect, the
BorrowerBorrowers
shall pay (immediately following the end of the quarter during which the Administrative Agent receives notice from the
BorrowerOperating
Partnership electing to apply the Leverage Grid) to the Administrative Agent for the account of each Lender in accordance with its Applicable Percentage in respect of the Revolving Credit Facility, an unused fee equal to the applicable Unused
Rate times the actual daily amount by which the aggregate Commitments in respect of the Revolving Credit
Facility exceed the sum of (i) the Outstanding Amount of Committed RC Loans, (ii) the Swing Line Exposure and (iii) the Outstanding Amount of L/C Obligations, subject to adjustment
as provided in Section 2.18. The unused fees shall accrue at all times during the Availability Period that the Leverage Grid is in effect (commencing immediately following the end of the quarter during which the
Administrative Agent receives notice from the
BorrowerOperating
Partnership electing to apply the Leverage Grid), including at any time during which one or more of the conditions in Article V is not met, and shall be due and payable quarterly in arrears
on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the Closing Date, and on the last day of the Availability Period. The unused fees shall be calculated quarterly in arrears, and
if there is any change in the Daily Usage during any quarter, the actual daily amount shall be computed and multiplied by the Unused Rate separately for each period during such quarter that such Unused Rate was in effect.
Notwithstanding the foregoing, at all times that the Ratings Grid is in effect, (i) the BorrowerBorrowers shall not pay the unused fee (commencing with the Closing Date and at any other time that the BorrowerOperating Partnership elects to apply the Ratings Grid in accordance
with the definition of Applicable Rate, immediately following the end of the quarter during which the Administrative Agent receives notice from the
BorrowerOperating
Partnership electing to apply the Ratings Grid) and (ii) for each succeeding quarter, the
BorrowerBorrowers
shall pay a facility fee (the Facility Fee) (commencing immediately following the end of the quarter during which the Administrative Agent receives notice from the BorrowerOperating
Partnership electing to apply the Ratings Grid in accordance with the definition of Applicable Rate) at the applicable rate set forth in the ratings-based pricing grid in the definition of
Applicable Rate (subject to the Sustainability Facility Fee Adjustment), times the actual daily amount of each Lenders Revolving Credit Commitment, regardless of usage. Each Facility Fee will be payable quarterly in arrears on the last day of each March, June, September and
December, and on each RCF Maturity Date.
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(b) Other Fees.
(i) The BorrowerBorrowers shall pay to the Arrangers, the Lenders and the Administrative
Agent for their own respective accounts fees in the amounts and at the times specified in the Arranger Commitment Letter and the Fee Letters. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
(ii) The BorrowerBorrowers shall pay to the Lenders such fees as shall have been
separately agreed upon in writing in the amounts and at the times so specified. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
2.11 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.
(a) All computations of interest for Base Rate Loans (including Base Rate Loans determined by reference to the Adjusted Eurocurrency RateTerm
SOFR) and on Canadian Dollar Loans (subject to clause (c) below) shall be made on the basis of a year of 365 or 366 days, as the case may be,
and actual days elapsed. All computations of interest for SONIA Loans and Australian Dollar Loans shall be made
on the basis of a year of 365 days and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and
actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is
made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to
Section 2.13(a), bear interest for one day. Each determination by the AdministrativeApplicable Agent of an interest rate or fee hereunder shall be
conclusive and binding for all purposes, absent manifest error.
(b) If, at any time that the Leverage Grid is in effect, as
a result of any restatement of or other adjustment to the financial statements of the BorrowerOperating Partnership or for any other reason, the BorrowerOperating
Partnership or the Lenders determine that (i) the Leverage Ratio as calculated by the BorrowerOperating Partnership as of any applicable date was inaccurate and
(ii) a proper calculation of the Leverage Ratio would have resulted in higher pricing for such period, the BorrowerBorrowers shall immediately and retroactively be obligated to pay to the
Administrative Agent for the account of the applicable Lenders or the L/C Issuers, as the case may be, 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
theany Borrower under the Debtor Relief Laws, automatically and without further action by the Administrative Agent, any Lender or any L/C Issuer), an amount equal to the excess of the amount of interest and fees that
should have been paid for such period over the amount of interest and fees actually paid for such period. If any Lender becomes entitled to claim any additional amounts pursuant to this Section 2.11(b), such Lender shall
provide the
BorrowerOperating
Partnership with written notice specifying in reasonable detail the additional amount required to fully compensate such Lender for such additional amounts. A certificate as to any additional
amounts payable pursuant to the foregoing sentence submitted by such Lender to the BorrowerOperating Partnership shall be conclusive absent manifest error. This
paragraph shall not limit the rights of the
Administrativeany Agent, any Lender or any
L/C Issuer, as the case may be, under Section 2.04(c)(iii), 2.04(h) or 2.09(b) or under Article IX. The Borrowers obligations under this paragraph shall survive the termination of the Aggregate
Commitments and the repayment of all other Obligations hereunder.
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(c) For the purpose of complying with the Interest Act (Canada), it is expressly agreed that with respect to Canadian Dollar Loans only (i) where interest is calculated pursuant hereto at a rate based on a 360 or 365 day period, the yearly rate or percentage of interest to which such rate is equivalent is such rate multiplied by the actual number of days in the year (365 or 366, as the case may be) divided by 360 or 365 as relevant and (ii) the annual rates of interest to which the rates determined in accordance with the provisions hereof on the basis of a period of calculation less than a year are equivalent, are the rates so determined (x) multiplied by the actual number of days in the one (1) year period beginning on the first day of the period of calculation, and (y) divided by the number of days in the period of calculation. Each determination by the Applicable Agent of an interest rate, fee or commission hereunder shall be conclusive and binding for all purposes, absent manifest error.
2.12 Evidence of Debt.
(a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the
AdministrativeApplicable
Agent in the ordinary course of business. The accounts or records maintained by the AdministrativeApplicable Agent and each Lender shall be conclusive absent manifest
error of the amount of the Credit Extensions made by the Lenders to the
BorrowerBorrowers
and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the BorrowerBorrowers hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the AdministrativeApplicable Agent in respect of such matters, the accounts and records of the AdministrativeApplicable Agent shall control in the absence of manifest error. Upon
the request of any Lender made through the
AdministrativeApplicable
Agent, the applicable Borrower shall execute and deliver to such Lender (through the AdministrativeApplicable Agent) a Note, which shall evidence such Lenders Loans
in addition to such accounts or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection clause (a), each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Letters of
Credit and Swing Line Loans. In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative
Agent shall control in the absence of manifest error.
2.13 Payments Generally; Administrative AgentsAgents
Clawback.
(a) General. All payments to be made by the BorrowerBorrowers shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the BorrowerBorrowers hereunder shall be made to the
AdministrativeApplicable
Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agents Office
in US Dollars,or
the Australian Dollars or EuroAdministrative
Agents
Office, as applicable, in the applicable currency
and in immediately available funds not later than 2:00 p.m2:00 P.M. on the date specified herein. The Administrative; provided, however, that such payments shall be made by
8:00 A.M. with respect to the AUD RC Tranche and 12:00 P.M. with respect to the GBP RC Tranche. The
Applicable Agent will promptly distribute to each Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such
Lenders Lending Office. All payments received by the
AdministrativeApplicable
Agent after 2:00
p.m.2:00 P.M. (or 8:00 A.M. with respect to the AUD RC Tranche or 12:00 P.M. with respect to the GBP RC Tranche) shall be deemed received
on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by theany Borrower shall come due on a day other
79
than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be. Upon its acceptance of an Assignment and Assumption and recording of the information contained therein in the Register pursuant to Section 11.06(c), from and after the effective date of such Assignment and Assumption, the Applicable Agent shall make all payments hereunder and under the Notes in respect of the interest assigned thereby to the Lender Party assignee thereunder, and the parties to such Assignment and Assumption shall make all appropriate adjustments in such payments for periods prior to such effective date directly between themselves.
(b) (i) Funding by Lenders; Presumption by
Applicable
Agent. Unless the AdministrativeAdministrativeApplicable Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing of Floating Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lenders
share of such Borrowing, the
AdministrativeApplicable
Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that
such Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, but shall not be required to, make available to the applicable Borrower a corresponding amount. In such event, if a Lender
has not in fact made its share of the applicable Borrowing available to the AdministrativeApplicable Agent, then the applicable Lender and the applicable Borrower severally agree to pay to the AdministrativeApplicable 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 thesuch Borrower to but excluding the date of payment to the AdministrativeApplicable Agent, at (A) in the case of a payment to be made by
such Lender, the Federal Funds Rate; provided,
however, that in the case of amounts due with respect to the GBP RC Tranche, the applicable rate
shall be a rate reasonably determined by the Applicable Agent in accordance with banking industry rules on
interbank compensation from time to time in effect, and (B) in the case of a payment to be made by
thea Borrower, the interest rate applicable to Base Rate Loans. If thesuch Borrower and such Lender shall pay such interest to the AdministrativeApplicable Agent for the same or an overlapping period, the AdministrativeApplicable Agent shall promptly remit to thesuch Borrower the amount of such interest paid by thesuch Borrower for such period. If such Lender pays its share of the
applicable Borrowing to the
AdministrativeApplicable
Agent, then the amount so paid shall constitute such Lenders Loan included in such Borrowing. Any payment by
thea Borrower shall be without prejudice to any claim thesuch Borrower may have against a Lender that shall have failed to make
such payment to the
AdministrativeApplicable
Agent.
(ii) Payments by
Borrowers
; Presumptions by BorrowerApplicable Agent. Unless the AdministrativeAdministrativeApplicable Agent shall have received notice from
theany Borrower prior to the date on which any payment is due to the AdministrativeApplicable Agent for the account of the Lenders or any L/C Issuer
hereunder that
thesuch Borrower will not make such payment, the AdministrativeApplicable Agent may assume that thesuch Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, but shall not be required to, distribute to the Lenders or any L/C Issuer, as the case may be, the
amount due. In such event, if
thesuch Borrower has not in fact made such payment, then each of the Lenders or the applicable L/C Issuer, as the case may be, severally agrees to repay to the AdministrativeApplicable Agent forthwith on demand the amount so distributed to such Lender or such L/C Issuer, 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
AdministrativeApplicable Agent, at the
Federal Funds Rate.;
provided, however, that in the case of amounts due with respect to the GBP RC Tranche, the rate shall be a rate reasonably determined by the
Applicable Agent
in accordance with banking industry rules on interbank compensation from time to time in effect.
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A notice of the
AdministrativeApplicable
Agent to any Lender or
theany Borrower with respect to any amount owing under this subsection clause (b) shall be conclusive, absent manifest error.
(c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the AdministrativeApplicable 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 applicable Borrower by the AdministrativeApplicable Agent because the conditions to the applicable Credit Extension set forth in Article V are not satisfied or waived in accordance with the terms hereof, the AdministrativeApplicable Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and Swing Line Loans and to make payments pursuant to Section 11.04(c) are several and not joint. The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section 11.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 11.04(c).
(e) Funding Source. 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.
2.14 Sharing of Payments by Lenders. (a) If, prior to the occurrence and continuation of an Event of Default, any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Loans made by it, or the participations in L/C Obligations or in Swing Line Loans held by it resulting in such Lenders receiving payment of a proportion of the aggregate amount of such Loans or participations and accrued interest thereon greater than its pro rata share thereof as provided herein in respect of the applicable Tranche, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and subparticipations in L/C Obligations and Swing Line Loans, if any, of the other Lenders in the same Tranche, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders in the same Tranche ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them in respect of such Tranche, provided that:
(i) if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section shall not be construed to apply to (x) any payment made by or on behalf of theany Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender or a Competitor), (y) the application of Cash
Collateral provided for in Section 2.17, 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 subparticipations in L/C Obligations or Swing
Line Loans to any assignee or participant, other than an assignment to any member of the Consolidated Group (as to which the provisions of this Section shall apply).
81
(b) If, following the occurrence and during the continuation of an Event of Default, any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Loans made by it, or the participations in L/C Obligations or in Swing Line Loans held by it resulting in such Lenders receiving payment of a proportion of the aggregate amount of such Loans or participations and accrued interest thereon greater than its Applicable Percentage as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and subparticipations in L/C Obligations and Swing Line Loans, if any, of the other Lenders, or make such other adjustments as shall be equitable, 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 all of their respective Loans and other amounts owing them, provided that:
(i) if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section shall not be construed to apply to (x) any payment made by or on behalf of theany Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (y) the application of Cash Collateral
provided for in Section 2.17, 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 subparticipations in L/C Obligations or Swing Line Loans to
any assignee or participant, other than an assignment to any member of the Consolidated Group (as to which the provisions of this Section shall apply).
(c) Each Loan Party consents to Sections 2.14(a) and (b) 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 such Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.
2.15 Extension of RCF-ARCF
Maturity Date. Subject to the provisions of this Section 2.15, the BorrowerBorrowers shall have the option to extend the RCF-ARCF Maturity Date then in effect hereunder (the Existing RCF Maturity Date), for up to two 6-month periods from the Existing
RCF-ARCF-ARCF Maturity Date (each, an Extension Option), subject to the satisfaction of each of the following conditions:
(a) At least thirty (30) days and not more than ninety (90) days prior to the Existing RCF-ARCF Maturity Date the
BorrowerBorrowers
shall notify the Administrative Agent of its exercise of the applicable Extension Option;
(b) As of the date of the Borrowers
Borrowers
request to exercise the applicable Extension Option and as of the Existing RCF-ARCF Maturity Date no Default shall have occurred and be continuing;
(c) The
BorrowerBorrowers
shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the Existing RCF-ARCF Maturity Date signed by a Responsible Officer of such Loan Party
(i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such extension and (ii) in the case of the
BorrowerBorrowers
, certifying that, before and after giving effect to such extension, (A) the representations and warranties contained in Article VI and the other Loan Documents are true and correct in all
material respects (unless qualified as to materiality or Material Adverse Effect, in which case such representations and warranties shall be true and correct in all respects) on and as of the Existing RCF-ARCF Maturity Date, except to the extent that such representations and
82
warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (unless qualified as to materiality or Material Adverse Effect, in which case
such representations and warranties shall be true and correct in all respects) as of such earlier date, and except that for purposes of this Section 2.15, the representations and warranties contained in clauses (a) and (b) of
Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections
clause (a) of Section 7.01, and
(B) no Default exists; subsection
(d) In respect of the second Extension Option, the BorrowerBorrowers
shall have timely exercised the first Extension Option in accordance with this Section 2.15;
(e) No later than the Existing RCF-ARCF Maturity Date the BorrowerBorrowers
shall have paid to the Administrative Agent (for the pro rata benefit of the Lenders) an extension fee in the amount of 0.0625% of the then aggregate Revolving Credit Commitments; and
(f) The BorrowerBorrowers shall have paid all reasonable
out-of-pocket costs and expenses incurred by the Administrative Agent and all reasonable fees and expenses paid to third party consultants (including reasonable
attorneys fees and expenses) incurred by the Administrative Agent in connection with such extension.
The Administrative Agent shall promptly notify each Lender of such extension request.
2.16 Increase in Commitments.
(a) Request for Increase. Provided there exists no Default, upon notice to the Administrative Agent (which shall promptly notify the
Lenders), the Administrative Agent and the Lenders agree that the
BorrowerBorrowers
may from time to time, request an increase to the Commitments
(including an increase to the Term Loan Commitments by an amount not exceeding the US Dollar Equivalent of US$500,000,000) by an amount (for all such
requests) not exceeding the US Dollar Equivalent of
US$1,000,000,000800,000,000
in the aggregate; provided that (i) in no event shall the aggregate amount of the Commitments at any time exceed the US Dollar Equivalent of US$3,000,000,0005,000,000,000
, (ii) in no event shall the Multicurrency RC Credit Commitments
exceedwith respect to
Loans denominated in currencies other than US Dollars exceed, in the aggregate, the US Dollar Equivalent of
US$300,000,0001,500,000,000
, and
(iii) any such request for an increase shall be in a minimum amount of US$10,000,000, A$10,000,000 or
or
£10,000,000, as applicable, and (iv) the Borrower may request (but not more than once) that a portion of the available increase in Commitments be structured as a single incremental term loan in US Dollars
(the Incremental Term Loan
Facility) as provided in
Section 2.16(g)
to be effective as of a date that is at least one
(1) year prior to the RCF-A Maturity Date then
in effect (the Incremental Term Loan
Date) as specified in the related
notice to the Administrative Agent. At the time of sending such notice, the BorrowerBorrowers (in consultation with the Administrative Agent) shall specify
the time period within which each Lender is requested to respond (which shall in no event be less than ten (10) Business Days from the date of delivery of such notice to the Lenders).
(b) Lender Elections to Increase. Each Lender shall notify
the Administrative Agent within such time period whether or not such Lender agrees, in its sole discretion, to increase its Commitment and, if so, whether by an amount equal to, greater than, or less than its Applicable Percentage of such requested
increase. Any Lender not responding within such time period shall be deemed to have declined to increase its Commitment. In no event shall any Lender be required to increase its Commitment in respect of Committed RC Loans or to participate in an Incremental Term Loan
Facilityany Loans.
(c) Notification by Administrative Agent; Additional Lenders. The Administrative Agent shall notify the BorrowerBorrowers
and each Lender of the Lenders responses to each request made hereunder. To achieve the full amount of a requested increase and subject to the approval of the Administrative Agent, the L/C Issuers and
the Swing Line Lenders (which approvals shall not be
83
unreasonably withheld), the Borrower and, in the case of L/C Issuers and Swing Line Lenders, shall be required only with respect to an increase of an applicable
Revolving Credit Tranche), the Borrowers may also invite additional Eligible Assignees to become Lenders pursuant to a joinder agreement in form and substance satisfactory to the Administrative
Agent and its counsel.
(d) Effective Date and Allocations. If the Aggregate Commitments are increased in accordance with
this Section, the Administrative Agent and the
BorrowerBorrowers
shall determine the effective date (the Increase Effective Date) and the final allocation of such increase. The Administrative Agent shall promptly notify the BorrowerBorrowers and the Lenders of the final allocation of such increase and the Increase Effective Date and provide a revised Schedule 1.01(A).
(e) Conditions to Effectiveness of Increase. As a condition precedent to such increase, the BorrowerBorrowers shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party
(x) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (y) in the case of the
BorrowerBorrowers
, certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in Article VI and the other Loan Documents are true and correct in all
material respects (unless qualified as to materiality or Material Adverse Effect, in which case such representations and warranties shall be true and correct in all respects) on and as of the Increase Effective Date, except to the extent that such
representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (unless qualified as to materiality or Material Adverse Effect, in which case such representations and warranties
shall be true and correct in all respects) as of such earlier date, and except that for purposes of this Section 2.16, the representations and warranties contained in clauses (a) and (b) of
Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to clause (a) of Section 7.01, and (B) no Default exists. subsections
(f) On the Increase Effective Date, to the extent the Committed RC
Loans under the increasing Tranche then outstanding and owed to any Lender immediately prior to the effectiveness of the increase in the Aggregate Commitments to such Tranche (the Commitment Increase) shall be less than such Lenders Applicable Percentage (calculated immediately following the effectiveness of such Commitment Increase) of all Committed RC Loans
under such Tranche then outstanding and owed to all Lenders
with Commitments to such Tranche (each such Lender,
including any additional Eligible Assignee that becomes a Lender pursuant to a joinder agreement in accordance with clause (c) above, a Purchasing Lender), then such Purchasing Lender, without executing an Assignment
and Assumption, shall be deemed to have purchased an assignment of a pro rata portion of the Committed RC Loans
under such Tranche then outstanding and owed to each Lender
that is not a Purchasing Lender (a Selling Lender) in an amount sufficient such that following the effectiveness of all such assignments the Committed RC
Loans under such Tranche outstanding and owed to each Lender shall equal such Lenders Applicable Percentage (calculated immediately following the effectiveness of the Commitment Increase on the Increase Effective Date) of all
Committed RC Loans
under such Tranche then outstanding and owed to all
Lenders with Commitments to such Tranche. The
Administrative Agent shall calculate and notify each applicable Lender of the net amount to be paid by each Purchasing Lender and received by each Selling Lender in connection with the assignments effected hereunder on the Increase Effective Date.
Each Purchasing Lender shall make the amount of its required payment available to the Administrative Agent, in same day funds, at the office of the Administrative Agent not later than
12:00 p.m12:00
P.M. (New York time) on the Increase Effective Date;
provided, however, that in the case of a Commitment Increase with respect to the AUD RC Tranche, such payment will be made not later than
8:00 A.M. (Sydney time). The Administrative Agent
shall distribute on the Increase Effective Date the proceeds of such amount to each of the Selling Lenders entitled to receive such payments at its Lending Office. If in connection with the transactions described in this
Section 2.16(f) any Lender shall incur any losses, costs or expenses of the type described in Section 3.05, then the
BorrowerBorrowers
shall, upon demand by such Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for
such losses, costs or expenses reasonably incurred.
84
(g) [Reserved].
(g) Incremental Term Loan Facility. (i) An Incremental Term Loan Facility shall be on the terms and provisions set forth in
Section 2.16(a) and this Section 2.16(g).
(ii) The notice from the Borrower pursuant to Section 2.16(a) in respect of an Incremental Term Loan Facility
shall set forth the requested amount and proposed terms of the Incremental Term Loan Facility, subject to the provisions of
Section2.16(g)(iv). The Borrower (in
consultation with the Administrative Agent) may select any existing Lender (it being understood that no existing Lender shall have any obligation to commit to fund any portion of the Incremental Term Loan Facility unless it shall otherwise agree nor
shall the Borrower be obligated to offer any such Lender the opportunity to fund any portion of the Incremental Term Loan Facility) or any other Person that is an Eligible Assignee (any such other Person that is an Eligible Assignee being called an
Additional Term Loan
Lender) to make the Incremental
Term Loan Facility.
(iii) Commitments in respect of the Incremental Term Loan Facility shall become Commitments under this Agreement pursuant to an amendment (the Incremental Term Loan
Amendment) to this Agreement and,
as appropriate, the other Loan Documents, executed by the Borrower, each Additional Term Loan Lender and the Administrative Agent. The Incremental Term Loan Amendment 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 reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.16(g). Subject to the provisions of this
Section
2.16(g), no approval from the Required Lenders or all
Lenders will be required in connection with the implementation of the Incremental Term Loan Facility and the Administrative Agent and the Additional Term Loan Lenders providing the Incremental Term Loan Facility shall be permitted to enter into such
amendments to the Loan Documents as are necessary to give effect to the Incremental Term Loan Facility.
(iv) The effectiveness of the Incremental Term Loan Amendment shall be subject
to the satisfaction on the Incremental Term Loan Date of each of the following conditions, and the Incremental Term Loan Facility shall be available only so long as: (A) both at the time of any such request for the Incremental Term Loan
Facility and on the Incremental Term Loan Date (after giving effect thereto), no Event of Default shall exist; (B) after giving effect thereto on a pro forma basis and the use of proceeds therefrom, the Borrower shall be in compliance with the financial covenants set forth
in
Section 8.13; (C) the representations and warranties contained herein and in the other
Loan Documents shall be true and correct in all material respects (unless qualified as to materiality or Material Adverse Effect, in which case such representations and warranties shall be true and
correct in all respects) and on and as of the Incremental Term Loan Date to the same extent as though
made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (unless qualified as to materiality or Material Adverse Effect, in which case such representations and warranties shall be true and correct in all
respects) on and as of such earlier date; (D) the Administrative Agent shall have received each of the following,
each in form and substance reasonably satisfactory to the Administrative Agent: (1) if not previously delivered to the Administrative Agent, certified copies of
(x) all corporate or other necessary action
taken by the Borrower to authorize the Incremental Term Loan Facility and (y) all corporate, partnership, member, or other necessary action taken by each Guarantor authorizing the
85
guaranty of the Incremental Term Loan Facility; and
(2) a customary opinion of counsel to the Borrower and the Guarantors (which may be in substantially the same form as delivered on the Closing Date), and addressed to the Administrative
Agent and the Lenders; (E) for the Incremental Term Loan Facility and on the Incremental Term Loan Date, all applicable conditions set forth in
Section 5.02 other than those expressly set forth in this Section 2.16(g)(iv)
shall have been satisfied (or waived in accordance with Section11.01); and (F) the Borrower shall satisfy such other conditions as the Administrative Agent may reasonably require or the parties to such Incremental Term
Loan Amendment shall agree, including, without limitation, the provision of any other documentation reasonably necessary to provide for or evidence the Incremental Term Loan Facility.
(v) The terms and provisions of the Incremental Term Loan Facility shall be as follows: (A) the Borrower may use the proceeds of the Incremental
Term Loan Facility for any purpose not prohibited by Section 8.09 so long as the Borrower continues to comply with all financial covenants set forth in
Section
8.13; (B) in no event shall the amount of the Incremental Term Loan Facility be less than US$10,000,000 or greater
than US$1,000,000,000; (C) the Incremental Term Loan Facility maturity date shall be the same as the RCF-A Maturity Date; (D) the Incremental Term Loan Facility shall not
be subject to any extension options;
(E) the Obligations of the Loan Parties in respect of the Incremental Term Loan Facility shall not be guaranteed by any Person that does not also guarantee the Obligations of the Loan
Parties in respect of the Facility, in each case on terms and pursuant to documentation reasonably satisfactory to the Administrative Agent; (F) the Incremental Term Loan Facility shall not
have any scheduled amortization payments; and
(G) the terms and provisions of Incremental Term Loan Facility shall be otherwise satisfactory to the Borrower, the Administrative Agent and the Additional Term Loan
Lenders.
(h) Conflicting Provisions. This Section shall supersede any provisions in Sections 2.14 or 11.01 to the contrary.
2.17 Cash Collateral.
(a) Certain Credit Support Events. Upon the request of the Administrative Agent or any L/C Issuer (i) if such L/C Issuer has
honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing and a Committed RC Borrowing has not been made in accordance with Section 2.04(c)(i), or (ii) if,
as of the Letter of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, the BorrowerBorrowers shall, in each case, immediately Cash Collateralize the then
Outstanding Amount of all L/C Obligations. At any time that there shall exist a Defaulting Lender, immediately upon the request of the Administrative Agent, any L/C Issuer or any Swing Line Lender, the BorrowerBorrowers shall deliver to the Administrative Agent Cash Collateral in an amount sufficient to cover all Fronting Exposure (after giving effect to Section 2.18(a)(iv) and any Cash Collateral
provided by the Defaulting Lender).
(b) Grant of Security Interest. All Cash Collateral (other than credit support
not constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit accounts at Citibank. The
BorrowerBorrowers
, and to the extent provided by any Lender, such Lender, hereby grantsgrant to (and subjectssubject to the control of) the Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuers and the Lenders (including the Swing Line Lenders), and agreesagree to maintain, a first priority security interest in all such cash, deposit accounts and all balances therein, and all other property 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 2.17(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 as herein provided, or that the total amount of such Cash Collateral is less than the applicable Fronting Exposure and other obligations secured thereby, the BorrowerBorrowers 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.
86
(c) Application. Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this Section 2.17 or Sections 2.04, 2.05, 2.06, 2.18 or 9.02 in respect of Letters of Credit or Swing Line Loans shall be held and applied to the satisfaction of the specific L/C Obligations, Swing Line Loans, 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 be provided for herein.
(d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or other obligations shall be released or reduced promptly following (i) the elimination or reduction of the applicable Fronting 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 11.06(b)(vi))) or (ii) the Administrative Agents good faith determination that there exists excess Cash Collateral; provided, however, (x) that Cash Collateral furnished by or on behalf of a Loan Party shall not be released during the continuance of a Default or Event of Default (and following application as provided in this Section 2.17 may be otherwise applied in accordance with Section 9.03), and (y) the Person providing Cash Collateral and the L/C Issuer or Swing Line Lender, as applicable, may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.
2.18 Defaulting Lenders.
(a) Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:
(i) Waivers and Amendments. That Defaulting Lenders right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 11.01.
(ii) Reallocation of Payments. Any payment of principal, interest, fees or other amounts received by the AdministrativeApplicable Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article IX or otherwise, and including any amounts made available to the AdministrativeApplicable Agent by that Defaulting Lender pursuant to Section 11.08), will not be paid or distributed to such Defaulting Lender, but will instead be retained by the AdministrativeApplicable Agent in a segregated non-interest bearing account until (subject to Section 2.18(b)) the termination of the Commitments and payment in full of
all obligations of the
BorrowerBorrowers
hereunder and will be applied at such time or times as may be determined by the AdministrativeApplicable Agent as follows: first, to the payment of any amounts
owing by that Defaulting Lender to the
AdministrativeApplicable
Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by that Defaulting Lender to any L/C Issuer or Swing Line Lender hereunder; third, if so determined
by the
AdministrativeApplicable
Agent or requested by any L/C Issuer or Swing Line Lender, to be held as Cash Collateral for future funding obligations of that Defaulting Lender of any participation in any Swing Line Loan or
Letter of Credit; fourth, as the
BorrowerBorrowers
may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as
87
determined by the AdministrativeApplicable Agent; fifth, if so determined by the AdministrativeApplicable Agent and the
BorrowerBorrowers
, to be held in a non-interest bearing deposit account and released in order to (x) satisfy obligations of that Defaulting Lender to fund Loans under this
Agreement and (y) Cash Collateralize the applicable L/C Issuers future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any
amounts owing to the Lenders, the L/C Issuers or Swing Line Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender, any L/C Issuer or Swing Line Lender against that Defaulting Lender as a result of that
Defaulting Lenders 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
BorrowerBorrowers
as a result of any judgment of a court of competent jurisdiction obtained by the BorrowerBorrowers against that Defaulting Lender as a result of that Defaulting
Lenders breach of its obligations under this Agreement; and eighth, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal
amount of any Loans or L/C Borrowings in respect of which that Defaulting Lender has not fully funded its appropriate share and (y) such Loans or L/C Borrowings were made at a time when the conditions set forth in
Section 5.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Borrowings owed to, all non-Defaulting Lenders on a pro rata basis prior to
being applied to the payment of any Loans of, or L/C Borrowings owed to, that Defaulting Lender. 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 2.18(a)(ii) shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.
(iii) Certain Fees. That Defaulting Lender (x) shall not be entitled to receive any fee pursuant to
Section 2.10(a) for any period during which that Lender is a Defaulting Lender (and the BorrowerBorrowers shall not be required to pay any such fee that otherwise would
have been required to have been paid to that Defaulting Lender) and the
BorrowerBorrowers
shall (A) be required to pay to the L/C Issuers and the Swing Line Lenders, as applicable, the amount of such fee allocable to its Fronting Exposure arising from that Defaulting Lender and (B) not
be required to pay the remaining amount of such fee that otherwise would have been required to have been paid to that Defaulting Lender), and (y) shall be limited in its right to receive Letter of Credit
Fees as provided in Section 2.04(h).
(iv) Reallocation of Applicable
Percentages to Reduce Fronting Exposure. During any period in which there is a Defaulting Lender, for purposes of computing the amount of the obligation of each non-Defaulting Lender to acquire, refinance
or fund participations in Letters of Credit or Swing Line Loans pursuant to Sections 2.04 and 2.05, the Applicable Percentage of each non-Defaulting Lender shall be computed
without giving effect to the Commitment of that Defaulting Lender; provided, that, (ix) each such reallocation shall be given effect only if, at the
date the applicable Lender becomes a Defaulting Lender, no Default or Event of Default exists; and (iiy) the aggregate obligation of each
non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit and Swing Line Loans shall not exceed the positive difference, if any, of (1) that
non-Defaulting Lenders
USD-AMulticurrency
RC Commitment minus (2) the aggregate Outstanding Amount of the USD-AMulticurrency Committed RC Loans of that Lender.
(b) Defaulting Lender Cure. If the
BorrowerBorrowers
, the
AdministrativeApplicable
Agent, Swing Line Lenders and the L/C Issuers agree in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the AdministrativeApplicable Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash
Collateral), that Lender will,
88
to the extent applicable, purchase that portion of outstanding Loans of the other Lenders or take such other actions as the
AdministrativeApplicable
Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to be held on a pro rata basis by the Lenders in accordance
with their Applicable Percentages in respect of Committed RC Loans (without giving effect to Section 2.18(a)(iv)), whereupon that Lender will cease to be a Defaulting Lender; provided that no adjustments will be made
retroactively with respect to fees accrued or payments made by or on behalf of the BorrowerBorrowers while that Lender was a Defaulting Lender; and
provided, further,
that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of
any party hereunder arising from that Lenders having been a Defaulting Lender.
(c) Anything herein to
the contrary notwithstanding, if at any time the Required Lenders determine that the Person serving as the Administrativean Agent is (without taking into account any provision in the definition
of Defaulting Lender requiring notice from the
AdministrativeApplicable
Agent or any other party) a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders (determined after giving effect to
Section 11.01) may by notice to the
BorrowerBorrowers
and such Person remove such Person as the Administrativesuch Agent and, in consultation with the BorrowerBorrowers, appoint a replacement Administrative Agent hereunder. Such removal will,
to the fullest extent permitted by applicable Law, be effective on the earlier of (i) the date a replacement Administrative Agent is appointed and (ii) the date thirty (30) days after the giving of such notice by the Required Lenders (regardless of whether a replacement Administrative Agent has been appointed).
(d) The BorrowerBorrowers may terminate the unused amount of the Commitments of a
Defaulting Lender upon not less than thirty days prior notice to the AdministrativeApplicable Agent (which will promptly notify the Lenders thereof), and
in such event the provisions of Section 2.18(a)(ii) will apply to all amounts thereafter paid by the BorrowerBorrowers for the account of such Defaulting Lender under this Agreement
(whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim the
Borrower, the
AdministrativeBorrowers, any Agent, any L/C
Issuer, any Swing Line Lender or any Lender may have against such Defaulting Lender.
2.19 Reallocation of Lender Pro Rata Shares; No Novation.
The Loans (as defined in the Existing Credit Agreement) made under the Existing Credit Agreement shall be deemed to be made under this Agreement on the date hereof, without executing any other documentation, and all such Loans currently outstanding shall be reallocated among the Lenders as follows:
(a) On the Closing Date, each Lender that will have a greater Applicable Percentage of the Facility upon the Closing Date than its Applicable
Percentage (under and as defined in the Existing Credit Agreement) of the Aggregate Commitments (under and as defined in the Existing Credit Agreement) immediately prior to the Closing Date (each, a Purchasing Bank), without
executing an Assignment and Assumption, shall be deemed to have purchased assignments pro rata from each Lender that will have a smaller Applicable Percentage of the Facility upon the Closing Date than its Applicable Percentage (under and as
defined in the Existing Credit Agreement) of the Aggregate Commitments (under and as defined in the Existing Credit Agreement) immediately prior to the Closing Date (each, a Selling Bank) in all such Selling Banks rights and
obligations under this Agreement and the other Loan Documents as a Lender with respect to the Facility (collectively, the Assigned Rights and Obligations) so that, after giving effect to such assignments, each Lender shall have
its respective Commitment as set forth in Schedule 1.01(A) and a corresponding Applicable Percentage of all Loans then
outstanding under the Facility. Each such purchase hereunder shall be at par for a purchase price equal to the principal amount of the loans and without 1.01A
89
recourse, representation or warranty, except that each Selling Bank shall be deemed to represent and warrant to each Purchasing Bank that the Assigned Rights and Obligations of such Selling Bank
are not subject to any Liens created by that Selling Bank. For the avoidance of doubt, in no event shall the aggregate amount of each Lenders Loans outstanding at any time exceed its Commitment set forth in Schedule 1.01(A)
. 1.01A
(b) Each Selling Bank hereby waives any right to request compensation from the Borrower pursuant to Section 3.05 for any loss, cost or expense incurred by it as a result of the reallocations set forth in this Section 2.19 in respect of Floating Rate Loans to the extent such reallocations take place on a day other than the last day of the Interest Period for such Floating Rate Loans.
(c) The
Administrative Agent shall calculate and notify the applicable Lenders of the net amount to be paid or received by each Lender in connection with the assignments effected hereunder on the Closing Date. Each Lender required to make a payment pursuant
to this Section 2.19 shall make the net amount of its required payment available to the Administrative Agent, in same day funds, at the office of the Administrative Agent not later than 12:00 p.m12:00
P.M. (New York time) on the Closing Date. The Administrative Agent shall distribute on the Closing Date the proceeds of such amounts to the Lenders entitled to receive payments pursuant to this
Section 2.19, pro rata in proportion to the amount each such Lender is entitled to receive at the primary address set forth in Schedule
1.01(A)
or at such other address as such Lender may request in writing to the Administrative Agent. 1.01A
(d) Nothing in this Agreement shall be construed as a discharge, extinguishment or novation of the Obligations of the Loan Parties outstanding
under the Existing Credit Agreement or any instruments securing the same, which Obligations shall remain outstanding under this Agreement after the date hereof as
Loans,,
except as expressly modified hereby or by instruments executed concurrently with this Agreement.
2.20 Supplemental TranchesSustainability Adjustments . The Borrower may request (such request, a Supplemental Tranche Request), on a single occasion, that certain Lenders and Eligible Assignees provide up to two supplemental tranches for Committed RC Loans denominated in Sterling and/or Canadian Dollars in an
amount of at least the US Dollar Equivalent of $25,000,000 (or such lesser
amount as the Administrative Agent may agree) (each, a Supplemental
Tranche), provided that in no event shall the aggregate amount of
the Commitments at any time exceed the US Dollar Equivalent of US$3,000,000,000.
The effective date of any Supplemental Tranche shall be a date that is at least one
(1) year prior to the then-applicable RCF-A Maturity Date and the maturity date
of any Loan under any Supplemental Tranche shall not be later than the RCF-A Maturity Date. Subject to the provisions of Section 2.16 and this Section
2.20, each Supplemental Tranche shall be committed to by Lenders pursuant to an increase in Commitments pursuant to Section
2.16. No Lender shall be obligated to make a Commitment to any Supplemental Tranche and a Lender may agree to do so in its sole discretion. For
the avoidance of doubt, each Lenders sole right to approve or consent to any
Commitment to any Supplemental Tranche shall be its right to determine whether to participate, or not to participate, in any such Commitment in its sole discretion as provided in this Section
2.20. If a Supplemental Tranche Request is accepted in accordance with this
Section
2.20, the Administrative Agent, the Lenders with Commitments to the applicable
Supplemental Tranche(s) (and only such Lenders) and the Loan Parties shall execute an amendment to this Agreement and deliver such supplemental Loan Documents and other instruments as may reasonably be required to effectuate such Supplemental
Tranche(s), each in form and substance reasonably satisfactory to such parties.
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(a) .
(a) Commencing with the Annual Period ending December 31, 2021, following the date on which the Operating Partnership provides a Pricing Certificate to the Administrative Agent as provided herein in respect of its then most recently ended Annual Period, (i) the Applicable Rate for purposes of calculating interest on the Loans shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in such Pricing Certificate and (ii) the Applicable Rate for the Facility Fee shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Facility Fee Adjustment as set forth in such Pricing Certificate. For purposes of the foregoing, (A) each of the Sustainability Margin Adjustment and the Sustainability Facility Fee Adjustment shall be determined as of the fifth (5th) Business Day following receipt by the Administrative Agent of a Pricing Certificate delivered pursuant to Section 7.02(i) based upon the Sustainability Rating Change set forth in such Pricing Certificate and the calculations of the Sustainability Margin Adjustment and the Sustainability Facility Fee Adjustment calculations, as applicable, therein (such Business Day, the Sustainability Pricing Adjustment Date) and (B) each change in the Applicable Rate resulting from a Pricing Certificate shall be effective during the period commencing on and including the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next Sustainability Pricing Adjustment Date (or, in the case of non-delivery of a Pricing Certificate or the delivery of an incomplete Pricing Certificate, the last day such Pricing Certificate could have been delivered pursuant to Section 7.02(i).
(b) For the avoidance of doubt, only one Pricing Certificate may be delivered in respect of any Annual Period, and the Applicable Rate for the Loans and the Letter of Credit Fees will not be reduced or increased pursuant to this Section 2.20 by more than 4.0 basis points (such limit, the Maximum Margin Adjustment), and the Applicable Rate for the Facility Fee will never be reduced or increased by more than 1.0 basis points, in each case pursuant to the Sustainability Margin Adjustment or the Sustainability Facility Fee Adjustment, as applicable, in respect of any Annual Period (such limit, the Maximum Facility Fee Adjustment). For the avoidance of doubt, any adjustment to the Applicable Rate for the Loans and the Letter of Credit Fees, and/or the Applicable Rate for the Facility Fee by reason of a Sustainability Rating Change in any year shall not be cumulative year-over-year. Each applicable adjustment shall only apply until the date on which the next adjustment is due to take place.
(c) If no such Pricing Certificate is delivered by the Operating Partnership (or any Pricing Certificate shall be incomplete) within the period set forth in Section 7.02(i), the Sustainability Margin Adjustment will be positive 4.0 basis points and the Sustainability Facility Fee Adjustment will be positive 1.0 basis points commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of Section 7.02(i) and continuing until the Operating Partnership delivers a complete Pricing Certificate to the Administrative Agent.
(d) If (i)(A) any of the Operating Partnership or the Required Lenders become aware of any material inaccuracy in the Sustainability Margin Adjustment, the Sustainability Facility Fee Adjustment, the Sustainability Rating or the Sustainability Rating Change as reported on the applicable Pricing Certificate (a Pricing Certificate Inaccuracy) and not later than ten (10) Business Days after obtaining knowledge thereof, the Required Lenders or the Operating Partnership, as applicable, deliver a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail including, to the extent applicable, calculations supporting such material inaccuracy (who shall furnish a copy to each of the Lenders and the Operating Partnership) or (B) the Operating Partnership and the Required Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of the relevant Pricing Certificate, and (ii) a proper calculation of the Sustainability Margin Adjustment, the Sustainability Facility Fee Adjustment, the Sustainability Rating or the Sustainability Rating Change would have resulted in an increase in the Applicable Margin for the Loans and the Letter of Credit Fees, and the Applicable Rate for the Facility Fee for such period, then the Borrowers shall be obligated to pay to the Administrative Agent for the ratable account of the Lenders, 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 any Borrower under any Bankruptcy Law, automatically and without further action by the Administrative Agent or any Lender), but
91
in no event more than ten (10) Business Days after the Operating Partnership has received written notice of, or has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to: the excess of (x) the amount of interest and fees that would have been payable for such period at the rate giving effect to the proper Sustainability Facility Fee Adjustment or Sustainability Margin Adjustment, as applicable over (y) the amount of interest and fees actually paid for such period (the True-Up Amount). If the Operating Partnership becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment, the Sustainability Facility Fee Adjustment, the Sustainability Rating or the Sustainability Rating Change would have resulted in a decrease in the Applicable Rate for the Loans and the Letter of Credit Fees, and the Applicable Rate for the Facility Fee for such period, then, upon receipt by the Administrative Agent of notice from the Operating Partnership of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment, the Sustainability Facility Fee Adjustment, the Sustainability Rating or the Sustainability Rating Change, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Rate for the Loans and the Letter of Credit Fees, and the Applicable Rate for purpose of calculating interest on the Facility Fee shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment, the Sustainability Facility Fee Adjustment, the Sustainability Rating or the Sustainability Rating Change, as applicable.
(e) Notwithstanding anything herein to the contrary, no Pricing Certificate Inaccuracy, in and of itself, shall constitute a Default or Event of Default under this Agreement. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under any Bankruptcy Law, (i) any additional amounts required to be paid pursuant to clause (d) above shall not be due and payable until a written demand is made for such payment by the Administrative Agent in accordance with subsection (d) above, (ii) any nonpayment of such additional amounts prior to such demand for payment by the Administrative Agent shall not constitute a Default or Event of Default (whether retroactively or otherwise), and (iii) none of such additional amounts shall be deemed overdue prior to such a demand or shall accrue interest at the Default Rate prior to such a demand. In the event the Operating Partnership fails to comply with the terms of this Section 2.20, the Lenders sole recourse with respect to such non-compliance shall be limited to the True-Up Amount.
(f) None of the Administrative Agent, any Co-Sustainability Structuring Agent or any Lender Party shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by the Operating Partnership of any Sustainability Facility Fee Adjustment or any Sustainability Margin Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent may rely conclusively on any such certificate, without further inquiry).
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a)
Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes. (i) Any and all payments by or on account of any obligation of the
BorrowerBorrowers
hereunder or under any other Loan Document shall to the extent permitted by applicable Laws be made free and clear of and without reduction or withholding for any Taxes. If, however, applicable Laws require
the
BorrowerBorrowers
or the
AdministrativeApplicable
Agent to withhold or deduct any Tax, such Tax shall be withheld or deducted in accordance with such Laws as determined by the
BorrowerBorrowers
or the
AdministrativeApplicable
Agent, as the case may be, upon the basis of the information and documentation to be delivered pursuant to
subsection
clause (e) below.
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(ii) If the
BorrowerBorrowers
or the
AdministrativeApplicable
Agent shall be required by the Code to withhold or deduct any Taxes, including both United States Federal backup withholding and withholding taxes, from any payment, then (A) the
AdministrativeApplicable
Agent shall withhold or make such deductions as are determined by the AdministrativeApplicable Agent to be required based upon the information and
documentation it has received pursuant to subsection
clause (e) below, (B) the AdministrativeApplicable Agent shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with the Code, and (C) to the extent that the withholding or deduction is made on account of
Indemnified Taxes or Other Taxes, the sum payable by the
BorrowerBorrowers
shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under this Section) the AdministrativeApplicable Agent, Lender or L/C Issuer, as the case may be, receives an amount equal to the sum it would have received had no such withholding or deduction been made.
(b) Payment of Other Taxes by the
BorrowerBorrowers
. Without limiting the provisions of subsection clause (a) above, the BorrowerBorrowers shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Laws.
(c) Tax Indemnifications. (i) Without limiting the provisions of subsection
clause (a) or (b) above,
the
BorrowerBorrowers
shall, and
doesdo hereby, indemnify the Administrative
Agent,Agents, each Lender and each L/C
Issuer, and shall make payment in respect thereof within 10 days after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable
under this Section) withheld or deducted by
theany Borrower or the
AdministrativeApplicable
Agent or paid by the AdministrativeApplicable Agent, such Lender or such L/C Issuer, as the case may be,
and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. The BorrowerBorrowers shall also, and
doesdo hereby, indemnify the Administrative
AgentAgents, and shall make payment in
respect thereof within 10 days after demand therefor, for any amount which a Lender or an L/C Issuer for any reason fails to pay indefeasibly to the
AdministrativeApplicable
Agent as required by clause (ii) of this subsection clause (c). A certificate as to the amount of any such payment or
liability delivered to the
BorrowerBorrowers
by a Lender or such L/C Issuer (with a copy to the AdministrativeApplicable Agent), or by the AdministrativeApplicable Agent on its own behalf or on behalf of a Lender or an L/C Issuer, shall be conclusive absent manifest error.
(ii) Without limiting the provisions of
subsection
clause (a) or (b) above,
each Lender and each L/C Issuer shall, and does hereby, indemnify the
BorrowerBorrowers
and the Administrative
AgentAgents, and shall make payment in
respect thereof within 10 days after demand therefor, against any and all Taxes and any and all related losses, claims, liabilities, penalties, interest and expenses (including the fees, charges and disbursements of any counsel for the BorrowerBorrowers or the Administrative
AgentAgents) incurred by or asserted
against the Borrower or the
AdministrativeBorrowers or any Agent by any
Governmental Authority as a result of the failure by such Lender or such L/C Issuer, as the case may be, to deliver, or as a result of the inaccuracy, inadequacy or deficiency of, any documentation required to be delivered by such Lender or such L/C
Issuer, as the case may be, to the Borrower or the
AdministrativeBorrowers or such Agent
pursuant to subsection
clause (e). Each Lender and such L/C
Issuer hereby authorizes the
Administrativeeach Agent to set off and
apply any and all amounts at any time owing to such Lender or such L/C Issuer, as the case may be, under this Agreement or any other Loan Document against any amount due to the
Administrativesuch Agent under this
clause (ii). The agreements in this Section 3.01(c) shall survive the resignation and/or replacement of the
AdministrativeApplicable
Agent, any assignment of rights by, or the replacement of, a Lender or an L/C Issuer, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all other
Obligations.
93
(d) Evidence of Payments. Upon request by the BorrowerBorrowers or the
AdministrativeApplicable
Agent, as the case may be, after any payment of Taxes by the BorrowerBorrowers or by the AdministrativeApplicable Agent to a Governmental Authority as provided in this Section 3.01, the BorrowerBorrowers shall deliver to the AdministrativeApplicable Agent or the
AdministrativeApplicable
Agent shall deliver to the BorrowerBorrowers, as the case may be, the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by Laws to report such payment or other evidence of such payment reasonably satisfactory to the Borrower or the AdministrativeApplicable Agent, as the case may be.
(e)
Status of Lenders; Tax Documentation. (i) Each Lender shall deliver to the BorrowerBorrowers and to the AdministrativeApplicable Agent, at the time or times prescribed by applicable Laws or when reasonably requested by the BorrowerBorrowers or the AdministrativeApplicable Agent, such properly completed and executed documentation prescribed by applicable Laws or by the taxing authorities of any jurisdiction and such other reasonably requested information as will permit the BorrowerBorrowers or the
AdministrativeApplicable
Agent, as the case may be, to determine (A) whether or not payments made hereunder or under any other Loan Document are subject to Taxes, (B) if applicable, the required rate of
withholding or deduction, and (C) such Lenders entitlement to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Lender by the Borrower pursuant to this Agreement or otherwise to
establish such Lenders status for withholding tax purposes in the applicable jurisdiction.
(ii) Without limiting the generality of the foregoing, if the applicable Borrower is resident for tax purposes in the United States,
(A) any Lender that is a United States person within the meaning of Section 7701(a)(30) of the
Code shall deliver to
thesuch Borrower and the
AdministrativeApplicable
Agent executed
originalscopies
of IRS Form W-9 or such other documentation or information prescribed by applicable Laws or reasonably requested by thesuch Borrower or the
AdministrativeApplicable
Agent as will enable
thesuch Borrower or the
AdministrativeApplicable
Agent, as the case may be, to determine whether or not such Lender is subject to backup withholding or information reporting requirements; and
(B) each Foreign Lender that is entitled under the Code or any applicable
treaty to an exemption from or reduction of withholding tax with respect to payments hereunder or under any other Loan Document shall deliver to thesuch Borrower and the AdministrativeApplicable 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
request of
thesuch Borrower or the
AdministrativeApplicable
Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is applicable:
(I) executed originalscopies of IRS Form W-8BEN or W-8BEN-E claiming eligibility for benefits of an income tax treaty to which the United States is a party,
(II) executed originalscopies of IRS Form W-8ECI,
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(III) executed originalscopies of IRS Form W-8IMY and all required supporting documentation,
(IV) 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 to the effect that such Foreign Lender is not (A) a bank within the meaning of section 881(c)(3)(A) of the Code, (B) a 10 percent shareholder of thesuch Borrower within the meaning of section 881(c)(3)(B) of the Code, or (C) a controlled foreign corporation described in section 881(c)(3)(C) of the Code and (y) executed originalscopies of IRS Form W-8BEN or W-8BEN-E, or
(V) executed originalscopies of any other form prescribed by applicable Laws as a basis for
claiming exemption from or a reduction in United States Federal withholding tax together with such supplementary documentation as may be prescribed by applicable Laws to permit
thesuch Borrower or the
AdministrativeApplicable
Agent to determine the withholding or deduction required to be made.
(iii) Each Lender shall promptly (A) notify the
BorrowerBorrowers
and the
AdministrativeApplicable
Agent of any change in circumstances which would modify or render invalid any claimed exemption or reduction, and (B) take such steps as shall not be materially disadvantageous to it, in the
reasonable judgment of such Lender, and as may be reasonably necessary (including the re-designation of its Lending Office) to avoid any requirement of applicable Laws of any jurisdiction that the BorrowerBorrowers or the
AdministrativeApplicable
Agent make any withholding or deduction for taxes from amounts payable to such Lender.
(iv) 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 BorrowerBorrowers and the
AdministrativeApplicable
Agent at the time or times prescribed by law and at such time or times reasonably requested by the
BorrowerBorrowers
or the
AdministrativeApplicable
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 BorrowerBorrowers or the
AdministrativeApplicable
Agent as may be necessary for the BorrowerBorrowers and the AdministrativeApplicable Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lenders obligations under FATCA or to determine the amount to deduct and withhold from such
payment. For purposes of determining withholding Taxes imposed under FATCA, from and after the Closing Date, the BorrowerBorrowers and the AdministrativeApplicable Agent shall treat (and the Lenders hereby authorize the AdministrativeApplicable Agent to treat) this Agreement as not qualifying as a
grandfathered obligation within the meaning of Section 1471(b) or 1472(b). Solely for the purposes of this subsection clause
(iv), FATCA shall include any amendments made to FATCA after the date of this Agreement. Each Lender shall promptly notify the BorrowerBorrowers and the
AdministrativeApplicable
Agent of any change in circumstances that would modify or render invalid any claimed exemption from or reduction of Taxes.
(f) Treatment of Certain
Refunds. Unless required by applicable Laws, at no time shall the AdministrativeApplicable Agent have any obligation to file for or otherwise pursue on
behalf of a Lender or an L/C Issuer, or have any obligation to pay to any Lender or any L/C Issuer, any refund of Taxes withheld or deducted from funds paid for the account of such Lender or such L/C Issuer, as the case may
95
be. If the
AdministrativeApplicable
Agent, any Lender or any L/C Issuer determines, in its sole discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by the BorrowerBorrowers or with respect to which the Borrower
hasBorrowers have paid additional amounts
pursuant to this Section, it shall pay to the
BorrowerBorrowers
an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the
BorrowerBorrowers
under this Section with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses
incurred by the
AdministrativeApplicable
Agent, such Lender or such L/C Issuer, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided
that the
BorrowerBorrowers
, upon the request of the
AdministrativeApplicable
Agent, such Lender or such L/C Issuer, agrees to repay the amount paid over to the BorrowerBorrowers (plus any penalties, interest or other charges imposed
by the relevant Governmental Authority) to the
AdministrativeApplicable
Agent, such Lender or such L/C Issuer in the event the AdministrativeApplicable Agent, such Lender or such L/C Issuer is required to repay
such refund to such Governmental Authority. This subsection
clause (f) shall not be construed
to require the
AdministrativeApplicable
Agent, any Lender or any L/C Issuer to make available its tax returns (or any other information relating to its taxes that it deems confidential) to the BorrowerBorrowers or any other Person.
(g) To the extent permitted under the Code and the applicable Treasury Regulations, the Administrative Agent shall (i) act as the withholding agent solely with respect to the USD RC Tranche and the Multicurrency RC Tranche contemplated by the Loan Documents, taking into account that the only Borrower as of the Amendment No. 1 Effective Date is the Operating Partnership, and furnish to the applicable Lender Parties, any required Internal Revenue Service Form 1042 -S with respect to the USD RC Tranche and the Multicurrency RC Tranche. Except as provided in the immediately preceding sentence, the Administrative Agent shall not act as withholding agent (within the meaning of the Code and the applicable Treasury Regulations) with respect to any Tranche. For the avoidance of doubt, other than to the extent of its obligations set forth in the first sentence of this Section 3.01(g), the Administrative Agent shall not be responsible for determining what tax forms are required, determining whether withholding tax is due under the laws of any jurisdiction other than the United States or calculating or deducting such withholding tax.
3.02 Illegality.
(a)
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
(I) make, maintain or fund Loans whose interest is determined by reference to the Eurocurrency Rate, or to determine or charge interest rates based upon the Eurocurrency Rate or the Adjusted
Eurocurrency Rate, or any Governmental Authority has imposed material restrictions on the authority of such Floating Rate Advances or to fund or continue to fund or maintain Floating Rate Loans in any currency hereunder or if the
introduction of or any change in or in the interpretation of any law or regulation shall make it unlawful, or any central bank or other governmental authority shall assert that it is unlawful for
any Lender to purchase or sell, or to take deposits of,
US Dollars or Euro in the London interbank market or interbank market for Euro, as applicableany applicable currency in the Relevant Interbank Market, then, on
notice thereof and demand therefor by such Lender to the
BorrowerBorrowers
through the Administrative Agent, (i) any obligation of such Lender to make or
continue Eurocurrency Rate Committed RC Loans in the affected currency or currencies or, in the case of Eurocurrency Rate Committed RC Loans denominated in US Dollars, to convert Base Rate Loans to Eurocurrency Rate Committed RC Loans, as
applicable, shall be suspended, and
(ii) 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 Eurocurrency 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 Eurocurrency Rate component of the Base Rate, in each case
until such Lender notifies the Administrative Agent and the
96
BorrowerApplicable
Agent, (A) each Floating Rate Loan denominated in a currency other than US Dollars shall accrue
interest at the applicable Central Bank Rate for such currency plus the Applicable Rate, (B) each
Floating Rate Loan denominated in US Dollars shall automatically, upon such demand, convert into a Base Rate Loan and
(C) the obligation of such Lender to make, continue or convert Loans into, Floating Rate Loans shall be
suspended until the Applicable Agent shall notify the Borrowers that such Lender has determined that the circumstances
giving rise
tocausing such determinationsuspension no longer exist. Upon receipt of such notice, (x) the Borrower shall, upon demand from such
Lender (with a copy to the Administrative Agent), prepay or, if applicable, (A) convert all Eurocurrency Rate Committed RC Loans of such Lender denominated in US Dollars to Base Rate Loans or
(B) convert all Eurocurrency Rate Committed RC Loans of such Lender denominated in Euro to Base Rate Loans denominated in US Dollars (in an amount equal to the US Dollar
Equivalent of Euro) (in each case, 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 Eurocurrency 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 Eurocurrency Rate Committed RC Loans to such day, or upon five
(5) Business Days notice, if such Lender may not lawfully continue to maintain such Eurocurrency Rate Committed RC Loans and (y) if
such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurocurrency Rate or the Adjusted Eurocurrency Rate, the Administrative Agent shall during the period of such suspension compute the Base Rate
applicable to such Lender without reference to the Eurocurrency 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 Eurocurrency Rate or the Adjusted Eurocurrency Rate. Upon any such or (II) make Daily RFR Advances or to fund or continue to fund or maintain Daily RFR Advances in any currency hereunder, then,
on notice thereof and demand therefor by such Lender to the Borrowers through the Applicable Agent,
(A) the obligation of such Lender to make, continue or convert Loans into, Daily RFR Loans shall be
suspended until the Applicable Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist,
(B) all Daily RFR Loans denominated in a currency other than US Dollars shall, solely for the purpose
of calculating the interest rate applicable to such Daily RFR Loans, be deemed to be Floating Rate Loans denominated in US Dollars and shall accrue interest at the same interest rate applicable to Floating Rate Loans with an Interest Period of one
month, determined as of the date of such demand and (C) each Daily RFR Loan denominated in US Dollars
shall automatically, upon such demand, convert into a Base Rate Loan; provided, however, that
in each case, before making any such demand, such Lender agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to designate a different Lending Office if the making of such a designation would allow such Lender or its Lending Office to continue to perform its obligations to make Floating Rate Loans
or to continue to fund or maintain Floating Rate Loans and would not, in the judgment of such Lender, be otherwise disadvantageous to such Lender. The conversion of any Floating Rate Loan of any Lender to a Base Rate Loan or the suspension of any
obligation of any Lender to make any Floating Rate Loan pursuant to the provisions of this
Section 3.02(a) shall not affect the obligation of any other Lender to continue to make Floating Rate
Loans in accordance with the terms of this Agreement. Upon any prepayment or
conversion under this
Section 3.02, the BorrowerBorrowers shall also pay accrued interest on the amount so prepaid or converted and any amounts payable under Section 3.05.
(b) 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 BBSY Rate, or to determine or charge interest rates based upon the BBSY Rate, or any Governmental Authority has imposed material restrictions on the authority of
such Lender to purchase or sell, or to take deposits of, Australian Dollars in the Australian bank bill market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, any obligation of such Lender to make or
continue its Australian Dollar RC Loans shall be suspended until such Lender notifies the Administrative Agent and the Borrower that the
97
circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (x) the
Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay such
Lenders Australian Dollar RC Loans, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Australian Dollar RC Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain its Australian Dollar RC Loans. Upon any such prepayment, the Borrower shall also pay accrued interest on the amount so prepaid and any amounts payable under Section 3.05.
3.03 Inability to Determine Rates.
(a) Subject to Section 3.03(f), if a Market Disruption Event occurs in relation to any Eurocurrency Rate Loans for any Interest Period, (i) the Administrative Agent shall forthwith notify the Borrowers and the Lenders that the interest rate cannot be determined for such Eurocurrency Rate Loan, (ii) after the last day of the then existing Interest Period, the interest rate on each Lenders share of such Eurocurrency Rate Loan shall be the applicable Central Bank Rate for such currency plus the Applicable Rate; provided, however, that if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that such Central Bank Rate cannot be determined, any outstanding affected Loans shall, at the Borrowers election either (A) solely for the purpose of calculating the interest rate applicable to such Loans, be deemed to be Floating Rate Loans denominated in US Dollars and shall accrue interest at the same interest rate applicable to Floating Rate Loans denominated in US Dollars at such time or (B) be prepaid in full immediately; provided, however, that if no election is made by the Borrowers by the date that is three Business Days after receipt by the Borrowers of such notice, the Borrowers shall be deemed to have elected clause (A) above, and (iii) the obligation of the Lenders to make Eurocurrency Rate Loans shall be suspended until the Administrative Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist with respect to such Eurocurrency Rate Loans.
(b)
(a) If the Required Lenders determine
that for any reason in connection with any request for a US Dollar
Eurocurrency Rate Loan or a conversion to or continuation thereof that (i)
US Dollar deposits are not being offered to banks in the London interbank Eurodollar market for the applicable amount and Interest Period of such US Dollar
Eurocurrency Rate Loan, (ii) adequate and reasonable means do not exist for determining the US Dollar Eurocurrency Rate for any requested
Interest Period with respect to a proposed
US Dollar Eurocurrency Rate Loan or in connection with an existing or proposed Base Rate Loan, or (iii) the Eurocurrency Rate for any requested
Interest Period with respect to a proposed
US Dollar Eurocurrency Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such
Loana Market Disruption Event occurs in relation to any Daily RFR Loans that are Sterling Loans,
subject to Section 3.03(f), the Administrative
Agent will promptly so notify the
BorrowerBorrowers
and each Lender. Thereafter, (x) theUpon notice thereof by the Administrative Agent to the Borrowers, any
obligation of the Lenders to make or maintain
US Dollar Eurocurrency
Ratecontinue Daily RFR Loans that are
Sterling Loans shall be suspended, and (y) in the event of a determination described in
the preceding sentence with respect to the Eurocurrency Rate component of the Base Rate, the utilization of the Eurocurrency Rate component in determining the Base Rate shall be suspended, in each case (to the extent of the affected Daily RFR Loans) until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, (i) the
BorrowerBorrowers
may revoke any pending request for a Borrowing of, conversion to or continuation of US Dollar
Eurocurrency Rate Loansborrowing of Daily RFR Loans in Sterling (to the extent of the affected
Daily RFR Loans) or, 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(ii) such request shall be ineffective and any
outstanding affected Daily RFR Loans, at the Borrowers election, shall either
(A) bear interest at the Substitute Daily RFR Rate plus the Applicable Rate or (B) be prepaid in full immediately; provided,
however, that if either no election is made by the Borrowers by the date that is three Business Days after receipt by the Borrowers
of such notice or the applicable Central Bank Rate is not available, the Borrowers shall be deemed to have
elected clause (B) above.
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(c)
(b) If the Required Tranche Lenders in respect of the Multicurrency RC Credit Tranche determine that for any reason in
connection with any request for an Australian Dollar RC Loan or a conversion to or continuation thereof that (i) Australian Dollar deposits are not being offered to banks in the Australian bank bill market for the applicable amount and Interest Period of such Australian Dollar RC
Loan, (ii) adequate and reasonable means do not
exist for determining the BBSY Rate for any requested Interest Period with respect to a proposed Australian Dollar RC Loan, or (iii) the BBSY Rate for any requested Interest Period with respect to a proposed Australian Dollar RC Loan does not adequately and fairly reflect the cost to such Lenders of
funding such Loana Market Disruption Event occurs in relation to any Daily RFR Loans that are
US Dollar Loans, subject to Section 3.03(f), the Administrative Agent will promptly so notify the
BorrowerBorrowers
and each applicable Lender. Thereafter, theUpon notice
thereof by the Administrative Agent to the Borrowers, any obligation of the Lenders to make or maintain
Australiancontinue Daily RFR Loans that are
US Dollar RC Loans shall be suspended (to the extent of the affected Daily RFR Loans) until the Administrative Agent revokes such notice. Upon receipt of such notice, (i) the
BorrowerBorrowers
may revoke any pending request for a Borrowing or continuation of Australian Dollar RC
Loans.borrowing of Daily RFR Loans in US Dollars (to the extent of the affected Daily RFR Loans) or,
failing that, (ii) such request shall be ineffective and any outstanding affected Daily RFR Loans, at
the
Borrowers election,
shall either (A) bear interest at the Base Rate plus the Applicable Rate or (B) be prepaid in full immediately; provided,
however, that if no election is made by the Borrowers by the date that is three Business Days after receipt by the Borrowers of such
notice, the Borrowers shall be deemed to have elected clause (A) above.
(c) If the Required Tranche Lenders in respect of the Multicurrency RC Credit
Tranche determine that for any reason in connection
with any request for a Euro RC Loan or a conversion to or continuation thereof that
(i) deposits in Euro are not being offered to
banks in the interbank market for Euro for the applicable amount and Interest Period of such Euro RC Loan, (ii) adequate and reasonable means do not exist for determining the Eurocurrency Rate for any requested Interest Period with respect to a proposed Euro RC Loan, or
(iii) the Eurocurrency Rate for any requested
Interest Period with respect to a proposed Euro RC Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan,
the Administrative Agent will promptly so notify the Borrower and each such Lender. Thereafter, the obligation of the Lenders to make or maintain Euro
RC Loans shall be suspended. Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing or continuation of Euro RC Loans.
(d) Notwithstanding clauses (a), (b) or (c) of this Section 3.03 or any other provision of this Agreement or any other Loan Document, if the Administrative Agent reasonably determines (which determination shall be conclusive absent
manifest error) or the Required Lenders (or with respect to the Australian Dollar RC Loans or the Euro RC Loans, the Required Tranche Lenders with respect to the Multicurrency RC Credit Tranche) notify the Administrative Agent (with, in the case of
the Required Lenders or the Required Tranche Lenders with respect to the Multicurrency RC Credit Tranche, a copy to the Borrower) that the Borrower, Required Lenders or Required Tranche Lenders with respect to the Multicurrency RC Credit Tranche (as
applicable) have determined, that (i) adequate
and reasonable means do not exist for ascertaining any Screen Rate for any requested Interest Period, including because such Screen Rate is not
available or published on a current basis and such circumstances are unlikely to be temporary or (ii) the supervisor for the administrator of any Screen Rate or a
governmental authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which a Screen Rate shall no longer be made available, or be used for determining interest rates for loans such as
the Borrowings contemplated by this Agreement, then reasonably promptly after such determination by the Administrative Agent or receipt by the Administrative Agent of such notice, as applicable, the Administrative Agent and the Borrower shall
negotiate in good faith and endeavor to establish an alternate
99
rate of interest to such Screen Rate (including any mathematical or other adjustments to the benchmark (if any)
incorporated therein) that gives due consideration to both the then prevailing market convention for determining a rate of interest for similar syndicated loans denominated in the applicable currencies in respect of such Screen Rate at such time and
the rate indicated by such Screen Rate immediately prior to such determination by the Administrative Agent, the Required Lenders or the Required Tranche Lenders with respect to the Multicurrency RC Credit Tranche, and shall, notwithstanding anything
to the contrary in Section 11.01, enter into
an amendment to this Agreement to reflect such alternate rate of interest and any proposed Successor Rate Conforming Changes. Such amendment shall become effective without any action or consent of any party to this Agreement other than the
Administrative Agent and the Borrower at 5:00 p.m. on the fifth Business Day after the date that a copy of such amendment is provided to the Lenders so long as the Administrative Agent shall not have received a written notice from the Required
Lenders or the Required Tranche Lenders with respect to the Multicurrency RC Credit Tranche, as applicable, stating that such Required Lenders or the Required Tranche Lenders with respect to the Multicurrency RC Credit Tranche, as applicable, object
to such amendment. Until an alternate rate of interest shall be determined in accordance with this clause (d) (but, in the case of the circumstances described in clause (ii) of the first sentence of this clause (d), only to the extent the
Screen Rate is not available or published at such time on a current basis), each Floating Rate Loan using such Screen Rate shall automatically, on the last day of its Interest Period, be converted into a Base Rate Loan; provided, however, that any Australian Dollar RC Loan or Euro RC Loan to be so converted will first be converted to a USD Committed RC Loan based on the Agents Spot Rate of Exchange on the last day of such Interest Period.
Notwithstanding the foregoing, if any alternate rate of interest established pursuant to this clause (d) shall be less than zero percent (0%) per annum, such rate shall be deemed to be zero percent (0%) per annum for the purposes of this Agreement.
(d) If a Market Disruption Event occurs in relation to a Loan for any Interest Period for which the Floating Rate was to have been based on a rate other than the Eurocurrency Rate, then, subject to Section 3.03(f), the interest rate on each Lenders share of such Loan for such Interest Period shall be the applicable Central Bank Rate for such currency plus the Applicable Rate; provided, however, that if the Applicable Agent determines (which determination shall be conclusive and binding absent manifest error) that such Central Bank Rate cannot be determined, any outstanding affected Loansshall, at the Borrowers election either (i) solely for the purpose of calculating the interest rate applicable to such Loans, be deemed to be Floating Rate Loans denominated in US Dollars and shall accrue interest at the same interest rate applicable to Floating Rate Loans that are US Dollar Loans at such time or (ii) be prepaid in full immediately; provided, however, that if no election is made by the Borrowers by the date that is three Business Days after receipt by the Borrowers of such notice, the Borrowers shall be deemed to have elected clause (i) above. Upon notice thereof by the Applicable Agent to the Borrowers, any obligation of the Lenders to make or continue Floating Rate Loans in the applicable currency shall be suspended (to the extent of the affected Floating Rate Loans) until the Applicable Agent revokes such notice.
(e) Subject to Section 3.03(f), if a Market Disruption Event occurs and the Applicable Agent or any Borrower so requires, the Applicable Agent and such Borrower shall enter into negotiations in good faith (for a period of not more than thirty (30) days) with a view to agreeing a substitute basis for determining the rate of interest. Any alternative basis agreed pursuant to the immediately preceding sentence shall, with the prior consent of all of the Lenders in the applicable Tranche and the Borrowers, be binding on all parties.
(f) Benchmark Replacement Setting.
Notwithstanding anything to the contrary herein or in any other Loan Document:
(i) Replacing Benchmarks. Upon the occurrence of a Benchmark Transition Event with respect to any Benchmark, the Benchmark Replacement will replace such Benchmark for all
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purposes hereunder and under any Loan Document in respect of any such Benchmark setting at or after 5:00 P.M. (New York time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders and the Borrowers without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Tranche Lenders of each affected Tranche. At any time that the administrator of any then-current Benchmark has permanently or indefinitely ceased to provide such Benchmark or such Benchmark has been announced by the regulatory supervisor for the administrator or the administrator of such Benchmark pursuant to public statement or publication of information to be no longer representative and will not be restored, (A) with respect to amounts denominated in US Dollars, the Borrowers may revoke any request for a borrowing of, conversion to or continuation of Loans to be made, converted or continued that would bear interest by reference to such Benchmark until the Borrowers receipt of notice from the Administrative Agent that a Benchmark Replacement has replaced such Benchmark, and, failing that, the Borrowers will be deemed to have converted any such request into a request for a borrowing of or conversion to Base Rate Loans and (B) with respect to amounts denominated in any currency other than US Dollars, the obligation of the Lenders to make or maintain Loans referencing such Benchmark in the affected currency shall be suspended (to the extent of the affected amounts or Interest Periods (as applicable)) and any outstanding loans in such currency shall immediately or, in the case of a term rate at the end of the applicable Interest Period, be prepaid in full. During the period referenced in the foregoing sentence, if a component of the Base Rate is based upon the Benchmark, such component will not be used in any determination of the Base Rate.
(ii) Benchmark Replacement Conforming Changes. In connection with the implementation and administration of any Benchmark Replacement, the Administrative Agent will have the right (in consultation with the Borrowers) to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.
(iii) Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrowers and the Lenders of (A) the implementation of any Benchmark Replacement and (B) the effectiveness of any Benchmark Replacement Conforming Changes. For the avoidance of doubt, any notice required to be delivered by the Administrative Agent as set forth in this Section titled Benchmark Replacement Setting may be provided, at the option of the Administrative Agent (in its sole discretion), in one or more notices and may be delivered together with, or as part of any amendment which implements any Benchmark Replacement or Benchmark Replacement Conforming Changes. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, the Borrowers or any Lender (or group of Lenders) pursuant to this Section, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section titled Benchmark Replacement Setting.
(iv) Unavailability of Tenor of Benchmark. At any time (including in connection with the implementation of any Benchmark Replacement), (A) if any then-current Benchmark is a term rate (including Term SOFR), then the Administrative Agent (in consultation with the Borrowers) may remove any tenor of such Benchmark that is unavailable or non-representative for Benchmark (including Benchmark Replacement) settings and (B) the Administrative Agent may reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settings.
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(v) Disclaimer. The Administrative Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (A) the continuation of, administration of, submission of, calculation of or any other matter related to the Base Rate, any Benchmark, any component definition thereof or rates referenced in the definition thereof or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Base Rate, such Benchmark or any other Benchmark prior to its discontinuance or unavailability, or (B) the effect, implementation or composition of any Benchmark Replacement Conforming Changes. The Administrative Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Base Rate, any Benchmark, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrowers. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain the Base Rate or any Benchmark, any component definition thereof or rates referenced in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrowers, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.
(vi) Certain Defined Terms.
As used in this Section titled Benchmark Replacement Setting:
Available Tenor means, as of any date of determination and with respect to any then-current Benchmark for any currency, as applicable, (x) if any then-current Benchmark is a term rate, any tenor for such Benchmark that is or may be used for determining the length of an Interest Period or (y) otherwise, any payment period for interest calculated with reference to such Benchmark, as applicable, pursuant to this Agreement as of such date.
Benchmark Replacement means, for any Available Tenor, the sum of (i) the alternate benchmark rate and (ii) an adjustment (which may be a positive or negative value or zero), in each case, that has been selected by the Administrative Agent and the Borrowers as the replacement for such Available Tenor of such Benchmark giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by the Relevant Governmental Body, for syndicated credit facilities at such time denominated in the applicable currency in the U.S. syndicated loan market; provided, however, that, if the Benchmark Replacement as determined above would be less than the applicable Floor, the Benchmark Replacement will be deemed to be the applicable Floor for the purposes of this Agreement and the other Loan Documents.
Benchmark Replacement Conforming Changes means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of Base Rate, the definition of Business Day, the definition of Interest Period, timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the formula for calculating any successor rates identified pursuant to the definition of Benchmark Replacement, and other technical, administrative or
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operational matters) that the Administrative Agent decides (in consultation with the Borrowers) may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
Benchmark Transition Event means, with respect to any then-current Benchmark, the occurrence of one or more of the following events: a public statement or publication of information by or on behalf of the administrator of any then-current Benchmark, the regulatory supervisor for the administrator of such Benchmark, the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of New York, the central bank for the currency applicable to such Benchmark, an insolvency official with jurisdiction over the administrator for such Benchmark, a resolution authority with jurisdiction over the administrator for such Benchmark or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark, announcing or stating that (a) such administrator has ceased or will cease on a specified date to provide all Available Tenors of such Benchmark, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark or (b) all Available Tenors of such Benchmark are or will no longer be representative and that representativeness will not be restored.
Relevant Governmental Body means (a) with respect to a Benchmark Replacement in respect of US Dollars, the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto and (b) with respect to a Benchmark Replacement in respect of any currency other than US Dollars, (1) the central bank for the currency in which such amounts are denominated hereunder or any central bank or other supervisor which is responsible for supervising either (A) such Benchmark Replacement or (B) the administrator of such Benchmark Replacement or (2) any working group or committee officially endorsed or convened by (A) the central bank for the currency in which such amounts are denominated, (B) any central bank or other supervisor that is responsible for supervising either (i) such Benchmark Replacement or (ii) the administrator of such Benchmark Replacement, (C) a group of those central banks or other supervisors or (D) the Financial Stability Board or any part thereof.
3.04 Increased Costs; Reserves on Eurocurrency Rate
Committed RC Loans.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement contemplated by Section 3.04(e)) or any L/C Issuer;
(ii) subject any Lender or any L/C Issuer to any tax of any kind whatsoever with respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or any Floating Rate Loan or Daily RFR Loan made by it, or change the basis of taxation of payments to such Lender or such L/C Issuer in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 3.01 and the imposition of, or any change in the rate of, any Excluded Tax payable by such Lender or such L/C Issuer); or
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(iii) impose on any Lender or any L/C Issuer or the London interbank market or the Australian bank bill
marketRelevant Interbank Market any other
condition, cost or expense affecting this Agreement or Floating Rate Loans or Daily RFR Loans made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing
shall be to increase the cost to such Lender of making or maintaining any Loan the interest on which is determined by reference to a Floating Rate
or the Daily RFR Rate (or of maintaining its obligation to make
any such Loan), or to increase the cost to such Lender or such L/C Issuer 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 or such L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or such L/C Issuer, the BorrowerBorrowers will pay to such Lender or such L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or such L/C Issuer, as the case may be, for such additional costs incurred or
reduction suffered.
Notwithstanding the foregoing,
in the case of Eurocurrency Rate Committed RC Loans affected by the circumstances described in this Section, as promptly as practicable (but in no event later than five (5) Business Days after the giving of the notice
by the Administrative Agent with respect to such circumstances), the Administrative Agent (in consultation with the affected Lenders) shall negotiate with the Borrower in good faith in order to ascertain whether a substitute interest rate (a
Substitute
Rate) may be agreed upon for the maintaining of existing Eurocurrency Rate Committed RC Loans. If a Substitute Rate is agreed upon by the Borrower and any affected Lenders, such Substitute Rate
shall apply with respect to such affected Lenders. To the extent that a Substitute Rate is not so agreed upon by the Borrower and any of the affected Lenders within such time, each Eurocurrency Rate Committed RC Loan of such affected Lender
denominated in US Dollars shall thereafter bear interest at the Base Rate and each Eurocurrency Rate Committed RC Loan of such affected Lender denominated in Euro shall thereafter be converted into Base Rate Loans
denominated in US Dollars (in an amount equal to the US Dollar Equivalent of Euro).
If the Required Tranche Lenders notify the Applicable Agent that the Floating Rate for any Interest Period for any Loans will not adequately reflect the cost to such Lenders of making, funding or maintaining their Floating Rate Loans for such Interest Period, the Applicable Agent shall forthwith so notify the Borrowers and the Lenders, whereupon (x) the obligation of the Lenders to make such Floating Rate Loans shall be suspended and (y) with respect to any Floating Rate Loans that are then outstanding under any Tranche, such Floating Rate Loans shall thereafter bear interest at the applicable Central Bank Rate for such currency plus the Applicable Rate, in each case until the Applicable Agent shall notify the Borrowers that such Lenders have determined that the circumstances causing such suspension no longer exist.
(b) Capital and Liquidity Requirements. If
any Lender or any L/C Issuer determines that any Change in Law affecting such Lender or such L/C Issuer or any Lending Office of such Lender or such Lenders or such L/C Issuers holding company, if any, regarding capital or liquidity
ratios or requirements has or would have the effect of reducing the rate of return on such Lenders or such L/C Issuers capital or on the capital of such Lenders or such L/C Issuers 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 L/C Issuer, to a level below that which such Lender or such L/C Issuer or such
Lenders or such L/C Issuers holding company could have achieved but for such Change in Law (taking into consideration such Lenders or such L/C Issuers policies and the policies of such Lenders or such L/C Issuers
holding company with respect to capital adequacy), then from time to time the BorrowerBorrowers will pay to such Lender or such L/C Issuer, as the case may
be, such additional amount or amounts as will compensate such Lender or such L/C Issuer or such Lenders or such L/C Issuers holding company for any such reduction suffered.
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(c) Certificates for Reimbursement. A certificate of a Lender or an L/C Issuer
setting forth the amount or amounts necessary to compensate such Lender or such L/C Issuer or its holding company, as the case may be, as specified in subsection
clause (a) or (b) of this
Section 3.04 and delivered to the
BorrowerBorrowers
shall be conclusive absent manifest error. The BorrowerBorrowers shall pay such Lender or such L/C Issuer, as the case may be,
the amount shown as due on any such certificate within 10 days after receipt thereof.
(d) Delay in Requests.
Failure or delay on the part of any Lender or any L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lenders or such L/C Issuers right to demand such compensation,
provided that the
BorrowerBorrowers
shall not be required to compensate a Lender or an L/C Issuer pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine months prior to the
date that such Lender or such L/C Issuer, as the case may be, notifies the BorrowerBorrowers of the Change in Law giving rise to such increased costs or
reductions and of such Lenders or such L/C Issuers intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above
shall be extended to include the period of retroactive effect thereof).
(e) Reserves on Eurocurrency Rate Committed RC Loans. The
BorrowerBorrowers
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 (currently referred
to as Eurocurrency Liabilities in Regulation D), additional interest on the unpaid principal amount of each Eurocurrency Rate Committed RC 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 absent manifest error ), which shall be due and payable on each date on which interest is payable on such Loan, provided the BorrowerBorrowers shall have received at least 10 days prior notice (with
a copy to the
AdministrativeApplicable
Agent) of such additional interest from such Lender. If a Lender fails to give notice 10 days prior to the relevant Interest Payment Date, such additional interest shall be due and payable 10
days from receipt of such notice.
3.05 Compensation for Losses. Upon demand of any
Lender (with a copy to the
AdministrativeApplicable
Agent) from time to time, the BorrowerBorrowers shall promptly compensate such Lender for and hold such Lender
harmless from any loss, cost or expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan or a Daily RFR Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);
(b) any failure by the BorrowerBorrowers (for a reason other than the failure of such Lender to make a
Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan or a Daily RFR Loan
on the date or in the amount notified by the BorrowerBorrowers; or
(c) any assignment of a Floating Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by the
BorrowerBorrowers
pursuant to Section 11.13;
including any loss of anticipated profits and 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. The BorrowerBorrowers shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.
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For purposes of calculating amounts payable by the BorrowerBorrowers to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each Floating Rate Loan made by it at the Floating Rate for such Loan by a matching deposit or other
borrowing in the London interbank Eurodollar market, the interbank market for Euro or the Australian bank bill market, as applicable,Relevant Interbank Market for a comparable amount and for a comparable
period, whether or not such Floating Rate Loan was in fact so funded.
Notwithstanding the foregoing, if the Committed RC Loan Notice with respect to any USD Committed RC Loan or Eurocurrency Rate Loan having an Interest Period of one month indicates that such Loan will be repaid in 7 days, and the Borrower repays such Loans on the seventh (7th) day following the Borrowing thereof, the Lenders hereby waive any payment otherwise due pursuant to this Section 3.05 with respect to such Loans.
3.06 Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests compensation under Section 3.04, or
theany Borrower is required to pay any additional amount to any Lender, any L/C Issuer, or any Governmental Authority for the account of any Lender or any L/C Issuer pursuant to Section 3.01,
or if any Lender gives a notice pursuant to Section 3.02, then such Lender or such L/C Issuer shall, as applicable, 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 or such L/C Issuer, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to
Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each case, would not subject such
Lender or such L/C Issuer, as the case may be, to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender or such L/C Issuer, as the case may be. The
BorrowerBorrowers
hereby
agreesagree to pay all reasonable costs and expenses incurred by any Lender or any L/C Issuer in connection with any such designation or assignment. Each Lender may, at its option, make any Loan available to the BorrowerBorrowers by causing any foreign or domestic branch or Affiliate of such Lender to make such Loan; provided, however, that (i) any exercise of such option shall not affect the obligation of the BorrowerBorrowers in accordance with the terms of this Agreement and (ii) nothing in this Section 3.06(a) 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 or warranty by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(b) Replacement of Lenders. If any Lender requests compensation under Section 3.04, or if theany Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender is a Defaulting
Lender or a Non-Consenting Lender, the BorrowerBorrowers may replace such Lender in accordance with
Section 11.13.
3.07 Survival. All of the BorrowersBorrowers
obligations under this Article III shall survive termination of the Aggregate Commitments, repayment of all other Obligations hereunder, and resignation of the
Administrative Agentany Agent or any assignment of rights by, or the replacement of, a
Lender.
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ARTICLE IV. RESERVED
ARTICLE V. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
5.01 Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder, and of each Existing L/C Issuer to continue the applicable Existing Letter(s) of Credit hereunder, is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agents receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (if applicable), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Parent Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Request for Credit Extension relating to the initial Credit Extension and dated and delivered to the Administrative Agent at least two Business Days prior to the Closing Date;
(iii) a Note (or Notes, as applicable) executed by the Borrower in favor of each Lender requesting a Note (or Notes, as applicable);
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party and Safe Harbor as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and Guarantors is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vi) a favorable opinion of Jaffe, Raitt, Heuer and Weiss, P.C., Michigan counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit F-1 and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(vii) a favorable opinion of Tuan Olona, LLP, New York counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit F-2 and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viii) an opinion of Shearman & Sterling LLP, counsel for the Administrative Agent, in form and substance satisfactory to the Administrative Agent;
(ix) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
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(x) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 5.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xi) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on March 31, 2021, signed by a Responsible Officer of the Borrower;
(xii) a duly completed Unencumbered Asset Certificate prepared on a pro forma basis to account for any acquisitions, dispositions or reclassifications of Properties, and the incurrence or repayment of any Indebtedness for borrowed money relating to such Properties, that have occurred since March 31, 2021;
(xiii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xiv) evidence that the Existing SHM Credit Agreement has been or concurrently with the Closing Date is being terminated and all Liens securing obligations under the Existing SHM Credit Agreement have been or concurrently with the Closing Date are being released (provided that evidence of such release shall be provided in accordance with Section 7.19);
(xv) the documentation and other information reasonably requested by any Lender at least ten Business Days prior to the Closing Date in connection with applicable know your customer and Anti-Corruption Laws, including, without limitation, the Patriot Act, the Trading with the Enemy Act and the Beneficial Ownership Regulation, in each case in form and substance reasonably satisfactory to such Lender and delivered at least five Business Days prior to the Closing Date;
(xvi) completed requests for information dated a recent date, including UCC, judgment, tax, litigation and bankruptcy searches with respect to each applicable Loan Party, in each case except to the extent previously delivered to the Administrative Agent; and
(xvii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers, the Swing Line Lenders or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 5.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
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5.02 Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed RC Loan Notice requesting only a conversion of Loans to the other Type, or a continuation of Floating Rate Loans) is subject to the following conditions precedent:
(a) The representations and warranties of the
BorrowerBorrowers
and each other Loan Party contained in Article VI or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true
and correct in all material respects (unless qualified as to materiality or Material Adverse Effect, in which case such representations and warranties shall be true and correct in all respects) on and as of the date of such Credit Extension, except
to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects or in all respects, as applicable, as of such earlier date, and except that for
purposes of this Section 5.02, the representations and warranties contained in clauses (a) and (b) of
Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to clause (a) of Section 7.01. subsections
(b) No Default shall exist or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(c) The AdministrativeApplicable Agent and, if applicable, the L/C Issuers or the Swing Line
Lenders shall have received a Request for Credit Extension in accordance with the requirements hereof.
Each Request for Credit
Extension (other than a Committed RC Loan Notice requesting only a conversion of Loans to the other Type or a continuation of EurocurrencyFloating Rate Committed RC Loans) submitted by
theany Borrower shall be deemed to be a representation and warranty that the conditions specified in Section 5.02(a) and (b) have been satisfied on and as of the date of the
applicable Credit Extension.
ARTICLE VI. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative
AgentBorrowers represent and warrant to the Agents and the Lenders that:
6.01 Existence, Qualification and Power. Each Loan Party (a) is duly organized or formed, validly existing and, as applicable, in good standing under the Laws of the jurisdiction of its incorporation, formation or organization, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party, and (c) is duly qualified and is licensed and, as applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license; except in each case referred to in clause (b)(i) or (c), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
6.02 Authorization; No Contravention. The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is party, have been duly authorized by all necessary corporate or other organizational action, and do not and will not (a) contravene the terms of any of such Persons Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien under, (i) any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (ii) any order, injunction, writ or
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decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (c) violate any Law, except, in each case referred to in clause (b) or (c), as contemplated hereunder or to the extent such conflict, breach, contravention or violation, or creation of any such Lien could not reasonably be expected to have a Material Adverse Effect.
6.03 Governmental Authorization; Other Consents. No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document other than those that have already been duly made or obtained and remain in full force and effect or those which, if not made or obtained, could not reasonably be expected to have a Material Adverse Effect.
6.04 Binding Effect. This Agreement has been, and each other Loan Document, when delivered hereunder, will have been, duly
executed and delivered by each Loan Party that is party thereto. This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and binding obligation of such Loan Party party thereto, enforceable against each Loan Party in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity of at
law).
6.05 Financial Statements; No Material Adverse Effect.
(a) The Audited Financial Statements fairly present in all material respects the financial condition of the BorrowerOperating
Partnership and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein.
(b) Since the date of the Audited Financial Statements, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.
(c)
(c) The consolidated financial covenant projections of the BorrowerOperating Partnership previously delivered to the Administrative Agent
for the 2021, 2022 and 2023 fiscal years were prepared in good faith on the basis of the assumptions stated herein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts (it being understood that
such financial projections are subject to uncertainties and contingencies, which may be beyond the control of the BorrowerOperating Partnership and its Subsidiaries and that no assurance is
given by the
BorrowerBorrowers
that such projections will be realized).
6.06
Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the BorrowerBorrowers, threatened in writing, at law, in equity, in arbitration or
before any Governmental Authority, against
theany
Borrower or any of
itstheir
respective Subsidiaries or against any of their properties or revenues that (a) challenge the validity or enforceability of this Agreement or any other Loan Documents or (b) either
individually or in the aggregate, if determined adversely, could reasonably be expected to have a Material Adverse Effect.
6.07 No Default. No Default or Event of Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document.
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6.08 Ownership of Property.
Each of the Loan Parties and their Subsidiaries has good record and marketable title in fee simple to, or valid leasehold interests in all real property necessary or used in the ordinary course of business, except where failure to have any of the foregoing could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Each of the Properties listed on the schedule of Unencumbered Assets delivered to the Administrative Agent in connection with the Closing Date (as updated from time to time in accordance with Section 7.02(b)) is an Eligible Property, except to the extent as otherwise set forth herein or waived in writing by the Required Lenders.
6.09 Environmental Compliance. The Loan Parties and their Subsidiaries are not in violation of any Environmental Laws and not subject to liabilities or claims thereunder that could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
6.10 Insurance. The properties of the Loan Parties are insured with insurance companies not Affiliates of the BorrowerBorrowers, which, to BorrowersBorrowers knowledge are financially sound and reputable, in such
amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the applicable Borrower or the applicable Loan Party operates.
6.11 Taxes. The BorrowerOperating Partnership and its Subsidiaries have filed all Federal, state
and other material tax returns and reports required to be filed, and have paid all Federal, state and other material taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise
due and payable (taking into account any applicable extensions), except (a) those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP
(to the extent required by GAAP) or (b) where failure to comply with the following could not reasonably be expected to have a Material Adverse Effect. There is no proposed tax assessment against the BorrowerOperating
Partnership or any Subsidiary that would, if made, have a Material Adverse Effect.
6.12 ERISA Compliance.
(a) Except as could not reasonably be expected to give rise to a Material Adverse Effect, each Plan is in compliance in all respects with the applicable provisions of ERISA, the Code and other Federal or state laws. Each Pension Plan that is intended to be a qualified plan under Section 401(a) of the Code has received a favorable determination letter from the IRS to the effect that the form of such Pension Plan is qualified under Section 401(a) of the Code and the trust related thereto has been determined by the IRS to be exempt from federal income tax under Section 501(a) of the Code, or an application for such a letter is currently being processed by the IRS. To the knowledge of the Loan Parties, nothing has occurred that would cause the loss of such tax qualified status.
(b) There are no pending or, to the knowledge of the Loan Parties, threatened in writing claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be expected to result in Material Adverse Effect.
(c) (i) Except as could not reasonably be expected to give rise to a Material Adverse Effect, no ERISA Event has occurred, and neither any Loan Party nor any ERISA Affiliate is aware of any fact, event or circumstance that could reasonably be expected to constitute or result in an ERISA Event with respect to any Pension Plan; (ii) each Loan Party and each ERISA Affiliate has met all applicable
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requirements under the Pension Funding Rules in respect of each Pension Plan, and no waiver of the minimum funding standards under the Pension Funding Rules has been applied for or obtained; (iii) as of the most recent valuation date for any Pension Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is 60% or higher except where the failure to attain such funding target attainment percentage could not reasonably be expected to give rise to a Material Adverse Effect, and neither any Loan Party nor any ERISA Affiliate knows of any facts or circumstances that could reasonably be expected to cause the funding target attainment percentage for any such plan to drop below 60% as of the most recent valuation date except where such drop in funding target attainment percentage could not reasonably be expected to give rise to a Material Adverse Effect; and (iv) neither any Loan Party nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or Section 4212(c) of ERISA.
(d) Neither the BorrowerOperating Partnership nor any Guarantor is or will be deemed to be
plan assets (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Plans in connection with the Loans, the Letters of Credit or the Commitments.
6.13 Subsidiaries; Equity Interests. As of the date of this Agreement, the Parent and the BorrowerOperating
Partnership have no Subsidiaries other than those specifically disclosed in Schedule 6.13, and all of the outstanding Equity Interests in such Subsidiaries have been validly issued, are
fully paid and nonassessable. Neither the Parent nor the
BorrowerOperating
Partnership has any direct or indirect Equity Interests in any other Person other than those specifically disclosed in Schedule 6.13.
6.14 Margin Regulations; Investment Company Act.
(a) None of the Loan Parties is engaged nor will engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock.
(b) None of the Loan Parties, any Person Controlling
Borrowerthe Operating
Partnership, or any other Loan Party is or is required to be registered as an investment company under the Investment Company Act of 1940.
6.15 Disclosure. No report, financial statement, certificate or other written information (other than projected financial
information and information of a general economic or general industry nature) furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this
Agreement or delivered hereunder or under any other Loan Document (in each case, taken as a whole and as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances under which they were made, not materially misleading; provided that, with respect to projected financial information, the Loan Parties represent only that such
information was prepared in good faith based upon assumptions believed by the Loan Parties to be reasonable at the time made (it being understood that such financial projections are subject to uncertainties and contingencies, which may be beyond the
control of the
BorrowerOperating
Partnership and its Subsidiaries and that no assurance is given by any Loan Party that such projections will be realized).
6.16 Compliance with Laws; Sanctions. Each Loan Party, and each of its Subsidiaries, are in compliance in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either individually or in the aggregate, could not
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reasonably be expected to have a Material Adverse Effect. None of the Parent, the BorrowerOperating Partnership, any Guarantor, or any of their respective
Subsidiaries or, to their knowledge, any director, officer, employee or Affiliate thereof, is a Person that is, or is owned or controlled by Persons that are: (A) the subject of any sanctions administered or enforced by the U.S. Department of
the Treasurys Office of Foreign Assets Control (OFAC), the U.S. Department of State, the United Nations Security Council, the European Union, Her Majestys Treasury, the Australian Department of Foreign Affairs and
Trade or other relevant sanctions authority (collectively, Sanctions), or (B) located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions. None of the Parent, the BorrowerOperating
Partnership, any Guarantor, or any of their respective Subsidiaries or, to the knowledge of the Parent, the
BorrowerOperating
Partnership and the Guarantors, any director, officer, employee or Affiliate thereof, is in violation of any applicable Sanctions or Anti-Corruption Laws.
6.17 Solvency. As of the Closing Date, after giving effect to the transactions contemplated by this Agreement and the other Loan Documents to occur on the Closing Date, including all Credit Extensions to occur on the Closing Date (if any), the Parent and its Subsidiaries (on a consolidated basis) are Solvent.
6.18 REIT Status; New York Stock Exchange Listing. The Parent is a REIT, as defined under the Code, and is a publicly traded company listed on the New York Stock Exchange or another national stock exchange located in the United States.
6.19 Affected
Financial Institution. Neither
theany Borrower nor any other Loan Party is an Affected Financial Institution.
6.20 Receivables Financing Transactions. The aggregate value to the Loan Parties and the Subsidiaries of the receivables financed under any warehouse receivables financing facility (including the value of the manufactured housing units securing such receivables) is equal to or exceeds the Loan Parties and Subsidiaries associated aggregate repurchase liabilities under such warehouse receivables financing facility.
6.21 Parent Indebtedness. The Parent has not incurred, assumed or otherwise become obligated under any Indebtedness other than Obligations under the Loan Documents, Customary Carve-out Agreements and other Indebtedness permitted under this Agreement (including Senior Financing Obligations).
ARTICLE VII. AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder (other than contingent indemnity obligations) shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding (unless a replacement letter of credit or cash collateral reasonably satisfactory to the applicable L/C Issuer has been provided to such L/C Issuer), the Loan Parties shall, and shall (except in the case of the covenants set forth in Sections 7.01, 7.02, and 7.03) cause each Subsidiary to:
7.01 Financial Statements. Deliver to the Administrative Agent and each Lender, in form and detail as previously delivered to the Administrative Agent in connection with the origination of the Loans or otherwise satisfactory to the Administrative Agent and the Required Lenders:
(a) within 90 days after the end of each fiscal year of the Parent, a consolidated balance sheet of the Parent and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income or operations, changes in shareholders equity, and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and
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prepared in accordance with GAAP, such consolidated statements to be audited and accompanied by a report and opinion of an independent certified public accountant of recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any going concern or like qualification or exception or any qualification or exception as to the scope of such audit; and
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Parent, a consolidated balance sheet of the Parent and its Subsidiaries as at the end of such fiscal quarter, the related consolidated statements of income or operations for such fiscal quarter and for the portion of the Parents fiscal year then ended, and the related consolidated statements of changes in shareholders equity, and cash flows for the portion of the Parents fiscal year then ended, in each case setting forth in comparative form, as applicable, the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail, such consolidated statements to be certified by the chief executive officer, chief financial officer, treasurer or senior vice president of finance of the Parent as fairly presenting the financial condition, results of operations, shareholders equity and cash flows of the Parent and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes.
As to any information contained in materials
furnished pursuant to Section 7.02(d), the Parent shall not be separately required to furnish such information under clause (a) or (b) above, but the foregoing shall not be in derogation of the obligation
of the
BorrowerBorrowers
to furnish the information and materials described in clauses (a) and (b) above at the times specified therein.
7.02 Certificates; Other Information. Deliver to the Administrative Agent (and the Administrative Agent shall deliver to each Lender), in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Sections 7.01(a) and (b), a duly completed Compliance Certificate signed by the chief executive officer, chief financial officer, treasurer or senior vice president of finance of the Parent (which delivery may, unless the Administrative Agent, or a Lender requests executed originals, be by electronic communication including fax or email and shall be deemed to be an original authentic counterpart thereof for all purposes);
(b) concurrently with the delivery of the financial statements referred to in Sections 7.01(a) and (b), an Unencumbered Asset Certificate, as at the end of such quarter, certified by the Chief Financial Officer (or other Responsible Officer performing similar functions) of the Parent, together with an updated schedule of Unencumbered Assets listing all of the Unencumbered Assets as of such date.
(c) promptly after any request by the Administrative Agent or any Lender, copies of any final management letters
or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the BorrowerOperating Partnership by independent accountants in connection with the
accounts or books of the Parent or any Subsidiary, or any audit of any of them;
(d) other than with respect to publicly available
information which is addressed in the proviso below, promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the Parent, and copies of all annual,
regular, periodic and special reports and registration statements which the Parent may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the
Administrative Agent pursuant hereto, provided that with respect to each such report, proxy, financial statement, communication and registration statement that is publicly available, the BorrowerBorrowers shall deliver such documents promptly following the Administrative Agents written request therefor;
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(e) within ninety (90) days after request by the Administrative Agent or any Lender,
the annual budget then in effect for the
BorrowerOperating
Partnership, on a consolidated basis prepared by the BorrowerOperating Partnership in the ordinary course of its business;
provided, however, that the annual budget for any given year will not be available until February 28 of such year;
(f) promptly after the furnishing thereofany request by the Administrative Agent or any Lender, copies of any
statement or report furnished to any holder of debt securities of the Parent or the BorrowerOperating Partnership pursuant to the terms of any indenture, loan or
credit or similar agreement and not otherwise required to be furnished to the Lenders pursuant to Section 7.01 or any other clause of this Section 7.02;
(g) promptly, and in any event within five (5) Business Days after receipt thereof by the Parent or the BorrowerOperating
Partnership, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning
any material investigation or other material inquiry by such agency regarding financial or other operational results of any Loan Party, other than routine comment letters from the SEC with respect to public filings unless restricted from doing so by
such agency;
(h) promptly upon the
BorrowerOperating
Partnership becoming aware of a change in the Investment Grade Rating (including the initial issuance of any Investment Grade Rating) or any other credit rating given by S&P, Moodys or
another nationally recognized rating agency to the BorrowersOperating
Partnerships
or the Parents Debt Rating;
(i) promptly after a Responsible Officer becomes aware thereof, written notice of any change in or discontinuation of a Sustainability Rating;
(i) commencing with the calendar year ending December 31, 2021, within 150 days after the end of each fiscal year, a Pricing Certificate for the most recently ended Annual Period addressing the Sustainability Rating Change for such calendar year; provided, however, that in any fiscal year the Operating Partnership may elect not to deliver a Pricing Certificate, and such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 150-day period shall result in the Sustainability Facility Fee Adjustment and the Sustainability Margin Adjustment being applied in accordance with the terms and conditions set forth in Section 2.20);
(j) promptly, such additional information regarding the business, financial or corporate affairs or sustainability matters and practices of the Parent or the BorrowerOperating
Partnership or any Unencumbered Asset, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request; and
(k) as soon as reasonably practicable and in any event within 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Parent, and 90 days after the end of each fiscal year of the Parent, a spreadsheet showing the operating results (including, for the avoidance of doubt, the Net Operating Income) for each Unencumbered Asset, in form and detail satisfactory to the Administrative Agent.
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Documents required to be delivered pursuant to Section 7.01(a) or
(b) or Section 7.02(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the
date (i) on which the
BorrowerOperating
Partnership posts such documents, or provides a link thereto on the Borrowers
Operating Partnerships
website on the Internet at the website address listed on Schedule 11.02; or (ii) on which such documents are posted on the BorrowersOperating
Partnerships
behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the
Administrative Agent). The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the BorrowerOperating
Partnership with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
The Parent and the
BorrowerBorrowers
hereby acknowledge that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Parent and
the
BorrowerBorrowers
hereunder (collectively, Borrower Materials) by posting Borrower Materials on IntraLinks or another similar electronic system (the Platform) and (b) certain of the
Lenders (each, a Public Lender) may have personnel who do not wish to receive material non-public information with respect to the Parent, the BorrowerOperating
Partnership or their Affiliates, or the respective Equity Interests of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such
Persons Equity Interests. The Parent and the
BorrowerBorrowers
hereby agree that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked PUBLIC which, at a minimum, shall mean that the word
PUBLIC shall appear prominently on the first page thereof; (x) by marking Borrower Materials PUBLIC,, the Parent and
the
BorrowerBorrowers
shall be deemed to have authorized the Administrative Agent, the Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as not containing any material
non-public information with respect to the Parent and the Borrower orOperating Partnership or their Equity Interests for purposes of United
States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 11.07); (y) all Borrower Materials marked
PUBLIC are permitted to be made available through a portion of the Platform designated Public Side Information; and (z) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that
are not marked PUBLIC as being suitable only for posting on a portion of the Platform not designated Public Side Information..
7.03 Notices. Promptly notify the Administrative Agent and each Lender:
(a) of the occurrence of any Default;
(b) of any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect, including (to the extent any of
same could reasonably be expected to result in a Material Adverse Effect) (i) breach or non-performance of, or any default under, a Contractual Obligation of theany Borrower or any Subsidiary; (ii) any dispute, litigation, investigation, proceeding or suspension between theany Borrower or any Subsidiary and any Governmental Authority; or
(iii) the commencement of, or any material development in, any litigation or proceeding affecting theany Borrower or any Subsidiary, including pursuant to any applicable
Environmental Laws;
(c) of the occurrence of any ERISA Event;
(d) of any material change in accounting policies or financial reporting practices by the Loan Parties or any Subsidiary;
(e) of any actual or threatened in writing condemnation of any portion of any Unencumbered Asset, and which could reasonably be expected to have a Material Adverse Effect; and
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(f) of any material permit, license, certificate or approval required with respect to any Unencumbered Asset lapses or ceases to be in full force and effect or claim from any person that any Unencumbered Asset, or any use, activity, operation or maintenance thereof or thereon, is not in compliance with any Law except to the extent that the same would not result in a Material Adverse Effect.
Each notice pursuant to this Section 7.03 shall be
accompanied by a statement of a Responsible Officer of the
BorrowerOperating
Partnership setting forth details of the occurrence referred to therein and stating what action the
BorrowerOperating
Partnership has taken and proposes to take with respect thereto. Each notice pursuant to Section 7.03(a) shall describe with particularity any and all provisions of this
Agreement and any other Loan Document that have been breached.
7.04 Payment of Obligations. Pay and discharge as the same shall become due and payable, all tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless (a) the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by the Parent or such Subsidiary (to the extent required by GAAP) or (b) the failure to do so could not reasonably be expected to have a Material Adverse Effect.
7.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and effect its legal existence and good standing of the Loan Parties under the Laws of the jurisdiction of their organization except in a transaction permitted by Section 8.03; and (b) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
7.06 Maintenance of Properties. (a) Maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear excepted and subject to exceptions for extraordinary or reasonably unforeseeable events, in each case except where the failure to do so could not reasonably be expected to have a Material Adverse Effect; and (b) make all necessary repairs thereto and renewals and replacements thereof in a reasonably timely manner except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.
7.07 Maintenance of Insurance. Maintain liability, casualty and other insurance (subject to customary deductibles and retentions) with responsible insurance companies in such amounts and against such risks as is customarily carried by companies engaged in similar businesses and owning similar assets in the general areas in which the Loan Parties or such Subsidiaries, as applicable, operate.
7.08 Compliance with Laws. Comply in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted; or (b) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.
7.09 Books and Records. Maintain proper books of record and account, in which entries that are true and correct in all material respects are made in conformity with GAAP consistently applied.
7.10 Inspection Rights. Permit the Lenders through the Administrative Agent, the Administrative Agent or any representative designated by the Administrative Agent, to visit and inspect any of the properties of the Loan Parties or any of their respective Subsidiaries (subject to the rights of any tenants), to examine the books of account of the Loan Parties and their respective Subsidiaries relating to
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their businesses (and to make copies thereof and extracts therefrom) and to discuss the affairs, finances and accounts of the Loan Parties and their respective Subsidiaries with their Responsible
Officers, all at such reasonable times (during normal business hours) and intervals as the Administrative Agent may reasonably request upon not less than four (4) Business Days notice; provided, however, that inspections
shall be limited to once per year unless an Event of Default shall have occurred and be continuing. The Administrative Agent and the Lenders shall use good faith efforts to coordinate such visits and inspections so as to minimize the interference
with and disruption to the Loan Parties or such Subsidiaries normal business operations. Notwithstanding anything to the contrary in this Section 7.10, no Loan Party nor any of their Subsidiaries will be
required to disclose, permit the inspection, examination or making of extracts, or discussion of, any document, information or other matter (i) in respect of which disclosure to the Administrative Agent (or its designated representative) or any
Lender is then prohibited by law or any agreement binding on any Loan Party or any of its Subsidiaries or (ii) that is subject to attorney -client or similar privilege or constitutes attorney work product. Each such visit and inspection
shall be at the visitors cost unless made during the continuance of an Event of Default, in which case all such costs shall be at the expense of the
BorrowerBorrowers
.
7.11 Use of Proceeds. Use the proceeds of the Credit Extensions for general corporate purposes, including for working capital, capital expenditures and acquisitions, and not in contravention of any Law or of any Loan Document.
7.12 Safe Harbor. Cause Safe Harbor to own, directly or indirectly, all Marina Real Estate Assets at all times.
7.13 ReservedAdditional Borrowers.
. If after the Amendment No. 1 Effective Date, a Subsidiary of the Operating Partnership desires to become a Borrower hereunder (including pursuant to Section 7.14), (a) the Operating Partnership shall (i) enter into the Operating Partnership Guaranty (to the extent not previously delivered) and (ii) deliver corporate formalities and enforceability legal opinions relating to the Operating Partnership Guaranty from counsel reasonably acceptable to the Administrative Agent, all in form and substance reasonably satisfactory to the Administrative Agent and (b) such Subsidiary shall: (i) provide at least five Business Days prior notice to the Administrative Agent, and such notice shall designate under what Revolving Credit Tranche such Subsidiary proposes to borrow; (ii) duly execute and deliver to the Administrative Agent a Borrower Accession Agreement; (iii) satisfy all of the conditions with respect thereto set forth in this Section 7.13 in form and substance reasonably satisfactory to the Administrative Agent; (iv) satisfy the know your customer requirements of the Administrative Agent and each relevant Lender, (v) deliver a Beneficial Ownership Certification, if applicable, with respect to such Additional Borrower, and (vi) obtain the consent of each Lender, which may be given or withheld in such Lenders sole discretion, in the applicable Tranche under which such Additional Borrower proposes to become a Borrower that such Additional Borrower is acceptable as a Borrower under the Loan Documents. Each such Subsidiarys addition as a Borrower shall also be conditioned upon the Administrative Agent having received (x) a certificate signed by a duly authorized officer or director of such Subsidiary, dated the date of such Borrower Accession Agreement certifying that: (1) the representations and warranties contained in each Loan Document are true and correct in all material respects (unless qualified as to materiality or Material Adverse Effect, in which case such representations and warranties shall be true and correct in all respects) on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects or in all respects, as applicable, as of such earlier date in all material respects (unless qualified as to materiality or Material Adverse Effect, in which case such representations and warranties shall be true and correct in all respects) on and as of such date, before and after giving effect to such Subsidiary becoming an Additional Borrower and as though made on and as of such date and (2) no Default or Event of Default has occurred and is
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continuing as of such date or would occur as a result of such Subsidiary becoming an Additional Borrower, (y) all of the documents set forth in Sections 5.01(a)(iv), (v) and (ix) with respect to such Subsidiary and (z) a corporate formalities legal opinion relating to such Subsidiary from counsel reasonably acceptable to the Administrative Agent, all in form and substance reasonably satisfactory to the Administrative Agent. Upon such Subsidiarys addition as an Additional Borrower, such Subsidiary shall be deemed to be a Borrower hereunder. The Administrative Agent shall promptly notify each applicable Lender upon each Additional Borrowers addition as a Borrower hereunder and shall, upon request by any Lender, provide such Lender with a copy of the executed Borrower Accession Agreement. With respect to the accession of any Additional Borrower to a Tranche, such Additional Borrower shall be responsible for making a determination as to whether it is capable of making payments to each Lender under the applicable Tranche without the incurrence of withholding taxes, provided that each such Lender shall provide such properly completed and executed documentation described in Section 3.01(e) or otherwise reasonably requested by such Additional Borrower as may be necessary for such Additional Borrower to determine the amount of any applicable withholding taxes and the Administrative Agent and such Lender shall cooperate in all reasonable respects with the Borrowers and their tax advisors in connection with any analysis necessary for such Additional Borrower to make such determination.
7.14 Additional Guarantors. In the event of any incurrence (including the assumption of existing Indebtedness via an acquisition
of Equity Interests) of Senior Financing Obligations occurring after the Closing Date by any Subsidiary of the Parent (other than thean existing Borrower or an existing Guarantor) such Subsidiary shall, at
the cost of the Loan Parties, become (a) an Additional Borrower hereunder in accordance with
Section 7.13 and/or (b) a Subsidiary Guarantor hereunder
(each Subsidiary Guarantor that delivers or accedes to the Subsidiary Guaranty after the Amendment No. 1
Effective Date being an Additional Guarantor), in each case within 30 days after such incurrence of Senior Financing Obligations by either (i) in the case of clause (a), complying with the provisions of Section 7.13 and executing and delivering to the Administrative Agent (x) prior to the date that the Subsidiary Guaranty has been executed and delivered, the Subsidiary Guaranty, and (y) thereafter, a counterpart of the
Subsidiary Guaranty or such other
documentan accession thereto as the Administrative Agent shall deem appropriate for such purpose
or (ii) in the case of clause (b), executing and delivering to the Administrative Agent (x) prior to the date that the Subsidiary Guaranty has been executed and delivered, the Subsidiary Guaranty, and (y) thereafter, a counterpart of
the Subsidiary Guaranty or an accession thereto as the Administrative Agent shall deem appropriate for such purpose. Each such
SubsidiaryAdditional
Guarantor that is not also an Additional
Borrower shall, within such 30 day period, deliver to the Administrative Agent (A) all of the documents set forth in Sections 5.01(a)(iv), (v) and
(ix) with respect to such
SubsidiaryAdditional
Guarantor, (B) all of the know your client information relating to such SubsidiaryAdditional Guarantor that is reasonably requested by the Administrative Agent or any Lender
Party and (C) a corporate formalities legal opinion relating to such SubsidiaryAdditional Guarantor from counsel reasonably acceptable to the
Administrative Agent, all in form and substance reasonably satisfactory to the Administrative Agent. If any SubsidiaryAdditional Guarantor (other than an existing Borrower that is not then being released as a Borrower in accordance with
Section 11.24) is no longer a guarantor or credit support providerobligor with respect to any Senior Financing Obligations, then the
Administrative Agent shall, upon the request of the
BorrowerOperating
Partnership, promptly release such SubsidiaryAdditional Guarantor from the Subsidiary Guaranty by executing and
delivering a guarantor release substantially in the form attached to Exhibit H hereto, provided that no Event of Default shall have occurred and be continuing.
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7.15 Reserved.
7.16 REIT Status; New York Stock Exchange Listing. The Parent shall at all times (i) maintain its status as a REIT, so long as REITs are recognized under the Code, and (ii) remain a publicly traded company listed on the New York Stock Exchange or another national stock exchange located in the United States.
7.17 Reserved.
7.18 OFAC. Provide to the Administrative Agent and the Lenders any information that the Administrative Agent or any Lender deems reasonably necessary from time to time in order to ensure compliance with all applicable Sanctions and Anti-Corruption Laws.
7.19
Post-Closing Agreements. Use commercially reasonable efforts to, not later than thirty (30) days following the Closing Date, provide evidence reasonably satisfactory to the Administrative Agent that all financing statements relating to
the Existing SHM Credit Agreement have been terminated and all other actions reasonably required by the Administrative Agent to evidence the release of all collateral thereunder have been taken; provided, however, that the BorrowerOperating
Partnership shall be required to have provided such evidence not later than sixty (60) days following the Closing Date.
ARTICLE VIII. NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder (other than contingent indemnity obligations) shall remain unpaid or unsatisfied, or any Letter of Credit (unless a replacement letter of credit or cash collateral reasonably satisfactory to the applicable L/C Issuer has been provided to such L/C Issuer) shall remain outstanding, each Loan Party shall not, nor shall it permit any Subsidiary to, directly or indirectly:
8.01 Reserved.
8.02 Parent as Holding Company. The Parent will not enter into or conduct any business, or engage in any activity other than
(i) the ownership, acquisition and disposition of any direct or indirect Equity Interests in the BorrowerOperating Partnership, Subsidiaries of the BorrowerOperating Partnership
in which the Parent holds an indirect Equity Interest through the BorrowerOperating Partnership, and the Non-BorrowerNon-Operating Partnership Subsidiaries, (ii) the management of the business of the
BorrowerOperating
Partnership, and such activities as are incidental thereto, all of which shall be solely in furtherance of the business of the Borrower, the
BorrowersOperating Partnership, the Operating Partnerships Subsidiaries and the
Non-BorrowerNon-Operating Partnership Subsidiaries, (iii) the ownership of (A) assets that have been distributed to the Parent that are held by the Parent for no
more than 10 Business Days pending (x) further distribution to equity holders of the Parent in amounts set forth in clause (vii) below or (y) contribution of the same to the BorrowerOperating
Partnership, (B) assets received by the Parent from third parties (including the net cash proceeds from any issuance and sale by the Parent of any of its Equity Interests), that are held for
no more than 10 Business Days pending contribution of the same to the
BorrowerOperating
Partnership and (C) such bank accounts or similar instruments as the Parent reasonably deems necessary to carry out its responsibilities under the organizational documents of the BorrowerOperating
Partnership, (iv) the maintenance of its legal existence (including the ability to incur fees, costs, and expenses relating to such maintenance), (v) (A) entering into the Loan Documents
and performing its Obligations under the Loan Documents, (B) entering into Customary Carve-out Agreements and performing its obligations under Customary Carve-out
Agreements and (C) incurring Senior Financing Obligations that would not result in a breach of the financial covenants in Section 8.13 and performing its obligations in respect of such Senior Financing Obligations,
(vi) any public offering of any shares of its capital stock or any other issuance or sale of Equity Interests in the Parent (provided that 100% of the net cash proceeds or other consideration of such issuance or sale shall be contributed
to the
BorrowerOperating
Partnership within 10 Business Days of the Parents receipt thereof), (vii) the payment of dividends to equity holders of the Parent in an amount not to exceed, for any fiscal year, the greater of (A) 95% of Funds
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From Operations, calculated on a trailing twelve month basis, and (B) the
amount of dividends and distributions required to be paid by the Parent in order for it to
(x) maintain its REIT status for federal or state income tax purposes and (y) avoid the payment of federal or state income
or excise taxto the extent not prohibited by Section 8.05, (viii) making contributions to the capital of the BorrowerOperating
Partnership, (ix) participating in tax, accounting and other administrative matters pertaining to the Parent and the Consolidated Group, (x) providing indemnification to its officers,
managers and directors, and (xi) any activities incidental to compliance with the provisions of the Securities Act, the Securities Exchange Act of 1934, as amended, any rules and regulations promulgated thereunder, and the rules of national
securities exchanges, in each case, as applicable to the Parent, as well as activities incidental to investor relations, shareholder meetings and reports to shareholders or debt holders; provided, however, that in no event shall the
Parent (1) incur, assume or otherwise become obligated in respect of any Indebtedness other than (A) Obligations under the Loan Documents, (B) Customary Carve-out Agreements and (C) Senior
Financing Obligations that would not result in a breach of the financial covenants or (2) acquire any Equity Interests other than Equity Interests in the Borrower and
Non-BorrowerOperating Partnership and Non-Operating
Partnership Subsidiaries.
8.03 Fundamental Changes. Merge, dissolve, liquidate or consolidate (including pursuant to a Division) with or into another
Person, except that, so long as no Event of Default exists or would result therefrom and subject to the proviso below, (a) a Loan Party may merge or consolidate (including pursuant to a Division) with or into one or more other Loan Parties,
(b) any Subsidiary (other than the
BorrowerOperating
Partnership) may merge or consolidate (including pursuant to a Division) with or into a Loan Party or another Subsidiary or may dissolve or liquidate, or (c) any other merger, dissolution,
liquidation or consolidation (including pursuant to a Division) that does not result in a Change of Control shall be permitted; provided that (i) if the
BorrowerOperating
Partnership or Parent is a party to any merger or consolidation permitted under this Section 8.03 it shall be the surviving entity and (ii) in no event shall the
BorrowerOperating
Partnership and the Parent be permitted to merge or consolidate with each other. Nothing in this Section shall be deemed to prohibit the sale or leasing of Property or portions of Property in the
ordinary course of business so long as no Event of Default under any other provision of the Loan Documents would result therefrom.
8.04 Reserved.
8.05 Restricted Payments. In the case of the Parent,
after the occurrence and during the continuance of an Event of Default, make any Restricted Payment if an Event of Default exists, except so long as no Event of Default shall have occurred and be
continuing under Section 9.01(a) or would result therefrom, such Restricted Payment shall be permitted in an amount not to exceed the greater of (A) the amount which, when added to the amount of all other Restricted Payments paid by the Parent in
the same fiscal quarter and the preceding three fiscal quarters, would not exceed 95% of Funds From Operations of the Parent and its Subsidiaries for the four consecutive fiscal quarters ending prior to the fiscal quarter in which such Restricted
Payment is paid and (B) the minimum amount of Restricted Payments required (I) under the Code to maintain and preserve the Parents REIT status and (II) to avoid the payment of federal or state income or excise tax. So long as no
Default shall have occurred and be continuing at the time of any action described below or would result therefrom, any Loan Party may declare and make dividend payments or other distributions payable with respect to the(including, in each case, by way of a Division), except for (i) any purchase, redemption or other acquisition
of Equity Interests of such Loan Party solely in thewith the proceeds of issuances of new common Equity Interests of such Loan Party including (i) cashless exercises of options granted under any share option plan adopted by the Parent, (ii) distributions of rights or equity
securities under any rights plan adopted by the Borrower or the Parent, and (iii) distributions (or effect stock splits or reverse stock splits) with respect to its Equity Interests payable solely in additional shares of its Equity
Interests..occurring not more than one year prior to such purchase, redemption or other
acquisition, (ii) cash or stock dividends and distributions in the minimum amount
necessary to maintain REIT status and avoid imposition of income and excise taxes under the Code and
(iii)
non -cash payments in connection with employee, trustee and director stock option plans or similar
incentive arrangements.
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8.06 Change in Nature of Business. Engage in any material line of business
substantially different from those lines of business conducted by the
BorrowerOperating
Partnership and its Subsidiaries on the date hereof; provided, however, that such lines of business shall include the service and repair of marine vessels, cabin and boat rentals,
retail sales, fuel sales, restaurant sales and other marine related businesses; provided further
that, for the avoidance of doubt, de minimis changes in the Operating Partnerships business will be permitted.
8.07 Transactions with Affiliates. Enter into any transaction of any kind with any Affiliate of the Loan Parties or their
respective Subsidiaries other than (a) salary, bonus, employee stock option, relocation assistance and other compensation arrangements with directors or officers in the ordinary course of business, (b) transactions that are disclosed to
the board of directors of the Parent and expressly authorized by a resolution of the board of directors of the Parent which is approved by a majority of the directors not having an interest in the transaction, (c) transactions permitted by this
Agreement, (d) transactions between or among Loan Parties and Subsidiaries and (e) transactions on overall terms substantially as favorable to Loan Parties or their Subsidiaries as would be the case in an arms length transaction
between unrelated parties..
8.08 Burdensome Agreements. Enter into any Negative Pledge if immediately prior to the effectiveness of such Negative Pledge, or immediately after giving effect thereto, (i) a Default or Event of Default exists or (ii) the Loan Parties are not in compliance with any of the covenants set forth in Section 8.13 determined on a pro forma basis.
8.09 Use of Proceeds. Use the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately,
incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such
purpose. The
BorrowerBorrowers
will not directly or knowingly indirectly use the Letters of Credit or the proceeds of the Loans, or lend, contribute or otherwise make available to any Subsidiary, joint venture partner or other Person
such extensions of credit or proceeds, (A) to fund any activities or businesses of or with any Person, or in any country or territory, that, at the time of such funding, is, or whose government is, the subject of Sanctions, or (B) in any
other manner that would result in a violation of Sanctions by any Person (including any Person participating in the Facility, whether as underwriter, advisor, investor, or otherwise) or any Anti-Corruption Laws.
8.10 Minimum Unencumbered AssetsReserved. Without the prior written consent of the Required
Lenders, allow there to be fewer than ten (10) Unencumbered Assets.
.
8.11 Reserved.
8.12 Accounting Changes. Make or permit, or permit any of its Subsidiaries to make or permit, any change in (i) accounting policies or reporting practices, except as required or permitted by GAAP, or (ii) fiscal year.
8.13 Financial Covenants. Permit:
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(a) Maximum Leverage Ratio. Total Indebtedness, less unrestricted cash and Cash Equivalents in excess of US$25,000,000, to exceed sixty-five percent (65%) of Total Asset Value less unrestricted cash and Cash Equivalents in excess of US$25,000,000 as of the last day of each fiscal quarter.
(b) Minimum Fixed Charge Coverage Ratio. The ratio of Adjusted EBITDA to Fixed Charges to be less than 1.40 to 1.0 as of the last day of each fiscal quarter.
(c) Unencumbered Debt Yield. The Unencumbered Debt Yield to be less than nineeight and one-half percent (9.08.5%).
(d) Maximum Secured Leverage. The ratio of Total Secured Indebtedness to Total Asset Value to exceed forty percent (40%) as of the last day of each fiscal quarter.
(e) Maximum Available Amount. At any time, the Total Outstandings to exceed the Maximum Available Amount at such time.
(f) Restricted Payments. The declaration or making, directly or indirectly, of any Restricted Payment, except as permitted under Section 8.05.
8.14 OFAC. Knowingly engage in any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is, or whose government is, the subject of Sanctions.
8.15 Receivables Financing Transactions. Enter into or be liable under any warehouse receivable financing facility for which the aggregate value to the Loan Parties and the Subsidiaries of the receivables financed under such warehouse receivables financing facility (including the value of the manufactured housing units securing such receivables) is less than the Loan Parties and Subsidiaries associated aggregate repurchase liabilities under such warehouse receivables financing facility.
ARTICLE IX. EVENTS OF DEFAULT AND REMEDIES
9.01 Events of Default. Any of the following shall constitute an Event of Default (each, an Event of Default):
(a) Non-Payment. TheAny Borrower or any other Loan Party fails to pay (i) when and as required to be paid herein, any amount of principal of any Loan or any L/C Obligation, or (ii) within five Business Days after the same
becomes due, any interest on any Loan or on any L/C Obligation, or any fee due hereunder, or (iii) within five days after the same becomes due, any other amount payable hereunder or under any other Loan Document; or
(b) Specific Covenants. TheAny Borrower fails to perform or observe any term, covenant or agreement
contained in Article VIII; or
(c) Other Defaults.
TheAny Borrower fails to perform or observe any other covenant or agreement (not specified in subsection clause (a) or (b) above) contained in any Loan
Document on its part to be performed or observed and such failure continues for 30 Business Days following written notice by Administrative Agent or, if such Default is not reasonably susceptible of cure within such period, within such longer period
as is reasonably necessary to effect a cure so long as the Borrower
continuesBorrowers continue to diligently
pursue cure of such Default but not in any event in excess of 60 Business Days; or
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(d) Representations and Warranties. Any representation or warranty by a Loan Party made in any Loan Document, or in any certificate or other writing delivered by a Loan Party pursuant to any Loan Document, proves to have been incorrect when made or reaffirmed in any respect that is materially adverse to the interests of the Lenders; or
(e) Cross-Default. Any Loan Party or any of its Subsidiaries (i) fails to pay the principal, or any principal
installment, of any Indebtedness (other than (A) Non-Recourse Indebtedness and (B) the Obligations) of
US$75,000,000125,000,000
(or the equivalent thereof in any foreign currency) or more required on its part to be paid when due (or within any stated grace period), whether at the stated maturity, upon acceleration, by
reason of required prepayment or otherwise or (ii) fails to perform or observe any other term, covenant or agreement on its part to be performed or observed, or suffers any event of default to occur, in connection with any Indebtedness (other
than Non-Recourse Indebtedness) of US$75,000,000125,000,000 (or the equivalent thereof in any foreign currency) or more,
if as a result of such failure or sufferance any holder or holders thereof (or an agent or trustee on its or their behalf) has the right (after giving effect to any notice or grace periods applicable thereto) to declare such Indebtedness due before
the date on which it otherwise would become due or the right (after giving effect to any notice or grace periods applicable thereto) to require a Loan Party or any such Subsidiary to redeem or purchase, or offer to redeem or purchase, all or any
portion of such Indebtedness (provided, that for the purpose of this subsectionclause (e), the principal amount of Indebtedness consisting of a
Swap Contract shall be the amount which is then payable by the counterparty to close out the Swap Contract) ; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any of its Subsidiaries institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for 60 calendar days, or an order for relief is entered in any such proceeding; or
(g) Inability to Pay Debts; Attachment.
(i)
TheAny Borrower or any Subsidiary becomes
unable or admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of
any such Person and is not released, vacated or fully bonded within 30 days after its issue or levy; or
(h) Judgments.
There is entered against any Loan Party or any Subsidiary a final judgment or order for the payment of money in an aggregate amount exceeding
US$75,000,000125,000,000
(or the equivalent thereof in any foreign currency) (to the extent not paid or covered by (x) independent third party insurance from an insurer that has been notified of the relevant claim
and not denied coverage or (y) an indemnity from a Person that has been notified of the relevant claim and not denied its obligation to indemnify such amount), and (i) enforcement proceedings are commenced by any creditor upon such
judgment or order or (ii) such judgment or order shall continue unsatisfied and in effect for a period of 30 consecutive days without being vacated, discharged, satisfied or stayed or bonded pending appeal; or
(i) ERISA. An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or would reasonably be expected to result in liability of the Loan Parties or their Subsidiaries under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount that would reasonably be expected to result in a Material Adverse Effect, or (ii) the Loan Parties or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount that would reasonably be expected to result in a Material Adverse Effect; or
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(j) Invalidity of Loan Documents. Any material provision of any material Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Loan Party contests in any manner the validity or enforceability of any provision of any Loan Document; or any Loan Party denies that it has any or further liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any provision of any Loan Document; or
(k) Change of Control. There occurs any Change of Control; or
(l) REIT Status of Parent. The Parent ceases to be treated as a REIT so long as REITs are recognized under the Code.
9.02 Remedies Upon Event of Default. If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions:
(a) declare the Commitment of each Lender to make Loans and any obligation of the L/C Issuers to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or
payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowerBorrowers;
(c) require that the
BorrowerBorrowers
Cash Collateralize the L/C Obligations (in an amount equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself, the Lenders and the L/C Issuers all rights and remedies available to it, the Lenders and the L/C Issuers under the Loan Documents;
provided, however, that upon the occurrence of an actual or deemed entry of an order for relief with respect to
theany Borrower under the Debtor Relief Laws, the obligation of each Lender to make Loans and any obligation of each L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of
all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the BorrowerBorrowers to Cash Collateralize the L/C Obligations as aforesaid shall
automatically become effective, in each case without further act of the Administrative Agent or any Lender.
9.03 Application of Funds. After the exercise of remedies provided for in Section 9.02 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 9.02), (1) Loans denominated in Australian Dollars or Euro will, at any time that the Administrative Agent determines it necessary or desirable to calculate the pro rata share of the Lenders on a Facility wide basis, be converted on a notional basis into the US Dollar Equivalent thereof solely for the purposes of making any allocations required under this Section 9.03 and (2) any amounts received on account of the Obligations shall, subject to the provisions of Sections 2.17 and 2.18, be applied by the Administrative Agent in the following order:
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First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article III) payable to the Administrative Agent hereunder in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest, Letter of Credit Fees and any periodic swap or swap termination payments) payable to the Lenders, the L/C Issuers and any Swap Bank (including fees, charges and disbursements of counsel to the respective Lenders, the L/C Issuers and such Swap Bank and amounts payable under Article III), ratably among them in proportion to the respective amounts described in this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations, and periodic swap payments, ratably among the Lenders, the L/C Issuers and any Swap Bank in proportion to the respective amounts described in this clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans, L/C Borrowings, and swap termination payments (mark to market), in each case ratably among the Lenders, the L/C Issuers and the Swap Bank in proportion to the respective amounts described in this clause Fourth payable to them;
Fifth, to the Administrative Agent for the account of the L/C Issuer, to Cash Collateralize that portion of L/C Obligations comprised
of the aggregate undrawn amount of Letters of Credit to the extent not otherwise Cash Collateralized by the BorrowerBorrowers pursuant to Sections 2.04 and 2.17; and
Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the BorrowerBorrowers or as otherwise required by Law.
Upon the occurrence and during the continuance of any Event
of Default, Australian Dollar RC
Loansall Loans denominated in currencies other than US Dollars will, at any time during the continuance of such Event of Default that the Administrative Agent determines it necessary or desirable to calculate the pro rata share of the Lenders on a Facility-wide basis, be
converted on a notional basis into the US Dollar Equivalent thereof solely for the purposes of making any allocations required under this Section 9.03.
Subject to Sections 2.04(c) and 2.17, amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above.
ARTICLE X. ADMINISTRATIVE AGENTAGENTS
10.01 Appointment and Authority. Each of the Lender Parties hereby irrevocably appoints Citibank to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, and to take any and all other actions as permitted pursuant to the term of this Agreement, together with such actions and powers as are reasonably incidental thereto.
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Each of the AUD RC Lenders hereby irrevocably appoints Citisecurities Limited to act on its behalf as the Australian Agent hereunder and under the other Loan Documents and authorizes the Australian Agent to take such actions on its behalf and to exercise such powers as are delegated to the Australian Agent by the terms hereof or thereof, and to take any and all other actions as permitted pursuant to the term of this Agreement, together with such actions and powers as are reasonably incidental thereto.
The provisions of this Article are solely for the benefit of the Administrative Agent, the Australian Agent and the Lender Parties, and neithernone of the Borrower
norBorrowers or any other Loan Party shall
have rights as a third party beneficiary of any of such provisions.
10.02 Rights as a Lender. TheEach Person serving as the
Administrativean Agent hereunder shall have the
same rights and powers in its capacity as a Lender Party as any other Lender Party and may exercise the same as though it were not the
Administrativean Agent and the term Lender
Party or Lender Parties shall, unless otherwise expressly indicated or unless the context otherwise requires, include theeach Person serving as the
Administrativean Agent hereunder in its individual
capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with theany Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrativean Agent hereunder and without any duty to account therefor to the
Lenders.
10.03 Exculpatory Provisions. The
AdministrativeNo Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, the
Administrativeno Agent:
(a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that the Administrativesuch Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that the
Administrativeno Agent shall not be required to take any action that, in its reasonable opinion or the reasonable opinion of its counsel, may expose
the
Administrativesuch Agent to liability or
that is contrary to any Loan Document or applicable law; and
(c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and no Agent shall not be liable for the failure to disclose, any information relating to the Parent or any of its Affiliates that is
communicated to or obtained by the Person serving as the
Administrativesuch Agent or any of its
Affiliates in any capacity.
The
AdministrativeNo Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary, or as the Administrativesuch Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 11.01 and 9.02) or (ii) in the absence of its own gross negligence or willful misconduct. The
AdministrativeNo Agent shall be deemed
not to have knowledge of any Default unless and until notice describing such Default is given to the Administrativesuch Agent by
thea Borrower or a Lender Party.
The AdministrativeNo Agent shall not be responsible for or have any duty to ascertain or
inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in
connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any
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Default, (iv) the due execution, validity, enforceability, effectiveness, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or
purported to be created under or in connection with, this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article V or elsewhere herein, other than
to confirm receipt of items expressly required to be delivered to the Administrativesuch Agent.
The AdministrativeNo Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance
with the provisions hereof relating to Competitors. Without limiting the generality of the foregoing, the Administrativeno Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or
Participant is a Competitor or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Competitor.
10.04 Reliance by Administrative
AgentAgents. The AdministrativeEach Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and
to have been signed, sent or otherwise authenticated by the proper Person. The AdministrativeEach Agent also may rely upon any statement made to it orally or by
telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that
by its terms must be fulfilled to the satisfaction of a Lender or an L/C Issuer, the AdministrativeApplicable Agent may presume that such condition is satisfactory to such
Lender or such L/C Issuer unless the
AdministrativeApplicable
Agent shall have received notice to the contrary from such Lender or such L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative
AgentAgents may consult with legal counsel (who
may be counsel for the
BorrowerBorrowers
), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by itthem or any of
them in accordance with the advice of any such counsel, accountants or experts.
10.05 Delegation of
Duties; Assignment. The
AdministrativeEach Agent may perform any and all
of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the
Administrativesuch Agent. The
AdministrativeEach Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative AgentAgents and any such sub-agent,
and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as
Administrative
Agent.an Agent. For the avoidance of doubt, the Australian Agent may assign its rights and obligations
hereunder to any Affiliate thereof without the consent of any other party hereto.
10.06 Resignation of Administrative
Agent. (a) The AdministrativeEither Agent may at any time give notice of its resignation to the
Lender Parties and the
BorrowerBorrowers
and may be removed at any time by the Required Lenders for gross negligence or willful misconduct or if
the
Administrativesuch Agent becomes a Defaulting
Lender pursuant to clause (d) of the definition of Defaulting Lender. Upon receipt of any such notice of resignation or removal, the Required Lenders shall have the right to appoint a successor, which shall be a bank with an
office in the United States, or an Affiliate of any such bank with an office in the United States, and, so long as no Event of Default has occurred and is continuing, such successor to be subject to the approval of the BorrowerBorrowers
(each such consent not to be unreasonably withheld or delayed). If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agents giving of notice of its resignation or the Required
Lenders removal of the retiring Administrative Agent, then the retiring
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Administrative Agent may on behalf of the Lender Parties,
appoint a successor Administrative Agent meeting the qualifications set forth above; provided that if
the
Administrativesuch Agent shall notify the
BorrowerBorrowers
and the Lender Parties that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and
(2) all payments, communications and determinations provided to be made by, to or through the Administrativesuch Agent shall instead be made by or to each Lender Party directly,
until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this
Section. Upon the acceptance of a successors appointment as Administrative Agent hereunder, such
successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from all
of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the
BorrowerBorrowers
to a successor Administrative Agent shall be the same as those
payable to its predecessor unless otherwise agreed between the
BorrowerBorrowers
and such successor. After the retiring Administrative Agents
resignation or removal hereunder and under the other Loan Documents, the provisions of this Article X and Section 11.04 shall continue in effect for the benefit of such retiring Administrative Agent, its sub -agents and their respective Related Parties in respect of any actions taken or omitted
to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.
(b) Any resignation by, or removal of, Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as L/C Issuer and Swing Line Lender. Upon the acceptance of a successors appointment as Administrative Agent hereunder, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer and Swing Line Lender, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit issued by such retiring L/C Issuer, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with respect to such Letters of Credit.
(c) In addition to the foregoing, if a Lender becomes, and during the period it remains, a Defaulting Lender, any L/C Issuer and/or any Swing
Line Lender may, upon prior written notice to the
BorrowerBorrowers
and the Administrative Agent, resign as L/C Issuer or Swing Line Lender, respectively, effective at the close of business New York time on a date specified in such notice (which date may not be
less than thirty (30) days after the date of such notice); provided that such resignation by such L/C Issuer will have no effect on the validity or enforceability of any Letter of Credit then outstanding or on the
obligations of the
BorrowerBorrowers
or any Lender under this Agreement with respect to any such outstanding Letter of Credit or otherwise to such L/C Issuer; and provided further that such resignation by a Swing Line Lender will
have no effect on its rights in respect of any outstanding Swing Line Loans or on the obligations of the BorrowerBorrowers or any Lender under this Agreement with respect to any such
outstanding Swing Line Loan.
10.07 Non-Reliance on Administrative Agent
andAgents, Other Lenders or Co-Sustainability Structuring Agents. Each Lender Party acknowledges that it has,
independently and without reliance upon the
Administrativeany Agent, any Co-Sustainability
Structuring Agent or any other Lender Party or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to
enter into this Agreement. Each Lender Party also acknowledges that it will, independently and without reliance upon the Administrativeany Agent, any Co-Sustainability Restructuring Agent or any other Lender Party or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any other Loan Document or
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any related agreement or any document furnished hereunder or thereunder. Nothing in this Agreement or any other Loan Document shall require the Administrativeany Agent or any of its respective directors, officers, agents or employees to carry out any know your customer or other checks in relation to any Person on behalf of any Lender Party and each Lender Party confirms to the Administrativeeach Agent that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Administrativesuch Agent or any of its directors, officers, agents or employees.
10.08
No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the Agents, Joint Bookrunners, the Arrangers or, the Co-Syndication Agents or the Co-Sustainability Structuring Agents listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the
Administrativean Agent, a Lender or an L/C Issuer
hereunder.
10.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding under any
Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or
otherwise and irrespective of whether the Administrative Agent shall have made any demand on the BorrowerBorrowers) shall be entitled and empowered, by intervention in such
proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in
respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the L/C Issuers and the Administrative Agent
(including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuers and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the L/C Issuers
and the Administrative Agent under Sections 2.04(i) and (j), 2.10, and 11.04)
allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same in accordance with the terms and conditions of this Agreement;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender Party to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lender Parties, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.10 and 11.04.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or any L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or any L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or any L/C Issuer in any such proceeding.
10.10 Collateral and Guaranty Matters. The Lenders and the L/C Issuers irrevocably authorize the Administrative Agent, at its option and in its discretion,
(a) to release any Lien on any property granted to or held by the Administrative Agent under any Loan Document (i) upon termination of the Aggregate Commitments and payment in full of all Obligations (other than contingent indemnification obligations) and the expiration or termination of all
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Letters of Credit (other than Letters of Credit as to which other arrangements satisfactory to the Administrative Agent and the L/C Issuers shall have been made), (ii) that is sold or to be sold as part of or in connection with any sale permitted hereunder or under any other Loan Document, or (iii) subject to Section 11.01, if approved, authorized or ratified in writing by the Required Lenders;
(b) to subordinate any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Permitted Lien on such property; and
(c) to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Subsidiary as a result of a transaction permitted hereunder.
Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agents authority to release its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 10.10.
10.11 Relationship of Administrative
AgentAgents and Lenders. The relationship
between
Administrativeeach
Agent and the Lenders, and the relationship among the Lenders, is not intended by the parties to create, and shall not create, any trust, joint venture or partnership relation between them.
10.12 Certain ERISA Matters. (a) Each Lender (x) represents and warrants, as of the date such Person
became a Lender party hereto, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of the Administrative
AgentAgents, and not, for the avoidance of doubt,
to or for the benefit of the
BorrowerBorrowers
or any other Loan Party, that at least one of the following is and will be true:
(i) such Lender is not using plan assets (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Plans with respect to such Lenders entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments or this Agreement,
(ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lenders entrance into, participation in, administration of and performance of the Obligations of such Lender in respect of the Loans, the Letters of Credit, the Commitments and this Agreement, or
(iii) (A) such Lender is an investment fund managed by a Qualified Professional Asset Manager (within the meaning
of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Obligations of such
Lender in respect of the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Obligations of such Lender in respect of the Loans, the Letters of
Credit, the Commitments and this Agreement satisfies the requirements of sub-sectionsclauses (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsectionclause (a) of Part I of PTE
84-14 are satisfied with respect to such Lenders entrance into, participation in, administration of and performance of the Obligations of such Lender in respect of the Loans, the Letters of Credit, the
Commitments and this Agreement.
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(b) In addition, unless
sub-clauseclause
(i) in the immediately preceding clause (a) is true with respect to a Lender, such Lender further (x) represents and warrants, as of the date such Person became a Lender party
hereto, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of the
Administrative
AgentAgents, and not, for the avoidance of
doubt, to or for the benefit of the
BorrowerBorrowers
or any other Loan Party, that the Administrativeno Agent is not a fiduciary with respect to the assets of such Lender involved in such Lenders entrance into, participation in,
administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by
the
Administrativesuch Agent under this
Agreement, any Loan Document or any documents related to hereto or thereto).
10.13
Payments in Error. (a) If the
AdministrativeApplicable
Agent notifies a Lender Party or any Person who has received funds on behalf of a Lender Party (any such Lender Party or other recipient, a Payment Recipient) that the AdministrativeApplicable Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds received by such Payment Recipient from the AdministrativeApplicable Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Payment Recipient) (any such funds, whether
received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an Erroneous Payment) and demands the return of such Erroneous Payment (or a portion thereof),
such Erroneous Payment shall at all times remain the property of the AdministrativeApplicable Agent and shall be segregated by the Payment Recipient and
held in trust for the benefit of the
AdministrativeApplicable
Agent, and such Lender Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two
Business Days thereafter, return to the
AdministrativeApplicable
Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect
of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the
AdministrativeApplicable
Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the
AdministrativeApplicable
Agent in accordance with banking industry rules on interbank compensation from time to time in
effect; provided,
however, that in the case of amounts due with respect to the GBP RC Tranche, a rate to be reasonably
determined by the Administrative Agent shall apply. A
notice of the
AdministrativeApplicable
Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender Party hereby further agrees that if it or any Payment Recipient on
its behalf receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the
AdministrativeApplicable
Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment, prepayment or repayment sent by the AdministrativeApplicable Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the AdministrativeApplicable Agent (or any of its Affiliates), or (z) that such Lender Party or Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(i) (A) in the case of immediately preceding clauses (x) or (y), an error shall be
presumed to have been made (absent written confirmation from the
AdministrativeApplicable
Agent to the contrary) or (B) an error has been made (in the case of immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
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(ii) such Lender Party shall (and shall cause any other Payment Recipient
that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such error) notify the
AdministrativeApplicable
Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the AdministrativeApplicable Agent pursuant to this Section 10.13(b).
(c) Each Lender
Party hereby authorizes the
Administrativeeach Agent to set off, net
and apply any and all amounts at any time owing to such Lender Party under any Loan Document, or otherwise payable or distributable by the Administrativesuch Agent to such Lender Party from any source, against any amount due
to the
AdministrativeApplicable
Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the AdministrativeApplicable Agent for any reason, after demand therefor by the AdministrativeApplicable Agent in accordance with immediately preceding
clause (a), from any Lender Party that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered
amount, an Erroneous Payment Return Deficiency), upon the AdministrativeApplicable Agents notice to such Lender Party at any time,
(i) such Lender Party shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Tranche and Type with respect to which such Erroneous Payment was made (the Erroneous Payment Impacted Class) in an
amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the AdministrativeApplicable Agent may specify) (such assignment of the Loans (but not
Commitments) of the Erroneous Payment Impacted Class, the Erroneous Payment Deficiency Assignment) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the AdministrativeApplicable Agent in such instance), and is hereby (together with the BorrowerBorrowers) deemed to execute and deliver an Assignment and Assumption
(or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to the Platform as to which the
AdministrativeApplicable
Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender Party shall deliver any Notes evidencing such Loans to the Borrower or the
AdministrativeApplicable
Agent, (ii) the AdministrativeApplicable Agent as the assignee Lender Party shall be deemed to acquire
the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the AdministrativeApplicable Agent as the assignee Lender Party shall become a Lender
Party hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender Party shall cease to be a Lender Party hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of
doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender Party and (iv) the Administrative Agent (on behalf of the Applicable Agent) may reflect in the Register its
ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The AdministrativeApplicable Agent may, in its discretion, sell any Loans acquired
pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender Party shall be reduced by the net proceeds of the sale of such Loan (or
portion thereof), and the
AdministrativeApplicable
Agent shall retain all other rights, remedies and claims against such Lender Party (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no
Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender Party and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that
the
AdministrativeApplicable
Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the AdministrativeApplicable Agent may be equitably subrogated, the AdministrativeApplicable Agent shall be contractually subrogated to all the rights and
interests of the applicable Lender Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (the Erroneous Payment Subrogation Rights).
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(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay,
discharge or otherwise satisfy any Obligations owed by
theany Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the AdministrativeApplicable Agent from
theany Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby
waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the AdministrativeApplicable Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on discharge for value or any similar doctrine.
(g) Each partys obligations, agreements and waivers under this Section 10.13 shall survive the resignation or
replacement of the
AdministrativeApplicable
Agent, any transfer of rights or obligations by, or the replacement of, a Lender Party, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or
any portion thereof) under any Loan Document.
10.14 Sustainability. It is understood and agreed that the Administrativeneither the Co-Sustainability Structuring Agents nor any Agent makes noany assurances as to (i) whether this Agreement meets any Operating Partnership,
Parent, Borrower or Lender criteria or expectations
with regard to environmental impact and sustainability performance, or (ii) whether the characteristics of the relevant sustainability performance targets and/or key performance indicators included in this Agreement, including any environmental
and sustainability criteria or any computation methodology with respect thereto, meet any industry standards for sustainability-linked credit facilities. It is further understood and agreed that the Administrativeneither the Co-Sustainability Structuring Agents nor any Agent shall have noany responsibility for (or liability in respect of) reviewing, auditing
or otherwise evaluating any calculation by the Operating Partnership, the Parent or any other Borrower of (i) the relevant sustainability performance targets and/or key performance indicators or (ii) any adjustment to the Applicable Rate (or any of the data or computations that are part of or
related to any such calculation) set forth in any Compliance Certificate (and the Administrativenotice regarding the determination of a Sustainability Rating for any fiscal year (and each Agent and each Co-Sustainability Structuring Agent may rely conclusively on any such
certificatenotice
, without further inquiry, when implementing any such pricing adjustment).
ARTICLE XI. MISCELLANEOUS
11.01 Amendments, Etc. Except to the extent expressly provided in the Loan Documents, no amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent to any departure by
theany Borrower or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and the
BorrowerBorrowers
or the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that (1) subject to clause (2) below, terms relating to the rights or obligations of Lenders with respect to a particular Tranche, and not to Lenders of any other Tranche, may be
amended, and the performance or observance by
theany Borrower or any other Loan Party may be waived (either generally or in a particular instance and either retroactively or prospectively) with, and only with, the written consent of the Required Tranche Lenders for
such Tranche (and, in the case of an amendment to any Loan Document, the written consent of each Loan Party which is a party thereto), and (2) that no such amendment, waiver or consent shall:
(a) waive any condition set forth in Section 5.01(a) without the written consent of each Lender;
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(b) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 9.02) without the written consent of such Lender;
(c) postpone any date fixed by this Agreement or any other Loan Document for any payment or mandatory prepayment of principal, interest, fees or other amounts due to the Lenders (or any of them) or any scheduled or mandatory reduction of the Aggregate Commitments hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby;
(d) reduce the principal of, or the rate of
interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (iv) of the second proviso to this Section 11.01) any fees or other amounts payable hereunder or under any other Loan Document, or
change the manner of computation of any financial ratio (including any change in any applicable defined term) used in determining the Applicable Rate that would result in a reduction of any interest rate on any Loan or any fee payable hereunder
without the written consent of each Lender directly affected thereby; provided, however, that only the consent of the Required Lenders shall be necessary to amend the definition of Default Rate or to waive any obligation of
theany Borrower to pay interest or Letter of Credit Fees at the Default Rate;
(e) change Section 2.13(a), Section 9.03 or Section 2.14 in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender;
(f) change any provision of this Section or the definition of Required Lenders or Required Tranche Lenders or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender; or
(g) release all or substantially all of the value of any Guaranty without the written consent of each Lender, except to the extent the release of any Guarantor is permitted pursuant to Sections 7.14 or 10.10 (in which case such release may be made by the Administrative Agent acting alone);
and, provided
further, that (i) no amendment, waiver or consent shall, unless in writing and signed by the L/C
Issuers in addition to the Lenders required above, affect the rights or duties of the L/C Issuers under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent
shall, unless in writing and signed by the Swing Line Lenders in addition to the Lenders required above, affect the rights or duties of the Swing Line Lenders under this Agreement; (iii) no amendment, waiver or consent shall, unless in writing
and signed by the
AdministrativeApplicable
Agent in addition to the Lenders required above, affect the rights or duties of the Administrativesuch Agent under this Agreement or any other Loan Document; and
(iv) the Arranger Commitment Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other
than Defaulting Lenders), provided that any such amendment, waiver or consent that would (A) increase or extend the term of the Commitment of such Defaulting Lender, (B) extend the date fixed for the payment of principal or interest
owing to such Defaulting Lender hereunder, (C) reduce the principal amount of any obligation owing to such Defaulting Lender, (D) reduce the amount of or the rate or amount of interest on any amount owing to such Defaulting Lender or of
any fee payable to such Defaulting Lender hereunder, or (E) alter the terms of this proviso, will require the consent of such Defaulting Lender.
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In the event that any Lender (a
Non-Consenting Lender) shall refuse to consent to a waiver or amendment to, or a departure from, the provisions of this Agreement which requires the consent of all Lenders or all Lenders in
respect of a Tranche and that has, where applicable, been consented to by the Administrative Agent and the Required Lenders or the Required Tranche Lenders, then the
BorrowerBorrowers
shall have the right, upon written demand to such Non-Consenting Lender and the Administrative Agent given within 30 days after the first date on which such consent
was solicited in writing from the Lenders by the Administrative Agent (a Consent Request Date), to cause such Non-Consenting Lender to assign its rights and obligations under this Agreement
(including, without limitation, its Commitment or Commitments, the Loans owing to it and the Note or Notes, if any, held by it) to a Replacement Lender, provided that (i) as of such Consent Request Date, no new Default or Event of
Default shall have occurred and be continuing, other than a Default or Event of Default that resulted solely from the subject matter of the waiver or amendment for which such consent was being solicited from the Lenders by the Administrative Agent,
(ii) as of the date of the
BorrowersBorrowers
written demand to replace such Non-Consenting Lender, no Default or Event of Default shall have occurred and be continuing other than a Default or Event of Default that resulted solely from the subject matter of the waiver or amendment for which
such consent was being solicited from the Lenders by the Administrative Agent and (iii) the replacement of any Non-Consenting Lender shall be consummated in accordance with and subject to the provisions
of Section 11.13. The Replacement Lender shall purchase such interests of the Non -Consenting Lender and shall assume the rights and obligations of the Non-Consenting Lender
under this Agreement upon execution by the Replacement Lender of an Assignment and Assumption delivered pursuant to Section11.06Section
11.06.
Anything herein to the contrary notwithstanding, but subject to Section 3.03(d), (i) if the Administrative Agent and
the
BorrowerBorrowers
have jointly identified an ambiguity, omission, mistake or defect in any provision of this Agreement or the other Loan Documents or an inconsistency between a provision of this Agreement and/or a provision
of the other Loan Documents, the Administrative Agent and the
BorrowerBorrowers
shall be permitted to amend such provision to cure such ambiguity, omission, mistake, defect or inconsistency, and, in each case, such amendment shall become effective without any further action or consent
of any other party to any Loan Document, so long as to do so would not adversely affect the interests of any Lender Party in any material respect, and (ii) the Administrative Agent and the BorrowerBorrowers may amend the provisions of Section 11.02 with respect to notices that either the Administrative Agent or the
BorrowerBorrowers
may deliver to each other but not with respect to notices to be delivered to any other Lender or L/C Issuer. The Administrative Agent shall promptly provide to the Lenders a copy of any amendment entered
into pursuant to this paragraph.
If the Administrative Agent shall request the consent of the Lenders pursuant to this Section 11.01 and any Lender shall fail to respond to such consent request (which response must include any information as may have been reasonably requested by the Administrative Agent from such Lender in connection with such consent request) within the earlier of (x) the applicable time period specified for the granting or withholding of such consent pursuant to the Loan Documents, if any, and (y) ten (10) Business Days after delivery of such request, then the Lender that has failed to respond shall be deemed to have consented to such request.
11.02 Notices; Effectiveness; Electronic Communication.
(a) Notices Generally. Except in the case of notices and other communications
expressly permitted by the Applicable Agent to be given by
telephone (and except as provided in subsection
clause (b) below), all notices
and other communications provided for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopier as follows, and all notices and other communications expressly permitted hereunder
and by the Applicable Agent to be given by telephone shall
be made to the applicable telephone number, as follows:
(i) if to the Borrower, the
AdministrativeBorrowers, any Agent, any L/C
Issuer or any Swing Line Lender, to the address, telecopier number, electronic mail address or (if applicable)
telephone number specified for such Person on Schedule 11.02; and
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(ii) if to any other Lender, to the address, telecopier number, electronic
mail address or (if applicable) telephone number specified in its
Administrative Questionnaire (including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect for the delivery of notices that may contain material non-public information relating to the
BorrowerBorrowers
).
Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when
received; notices and other communications sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on
the next business day for the recipient). Notices and other communications delivered through electronic communications to the extent provided in subsection
clause (b) below, shall be
effective as provided in such clause (b). Notices and other communications received by the Applicable Agent after 5:00 P.M. shall be deemed received on the next
succeeding Business Day. subsection
(b) Electronic Communications.
Notices and other communications to the Lenders and the L/C Issuers hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the AdministrativeApplicable Agent, provided that the foregoing shall not apply to notices to any Lender or any L/C Issuer pursuant to Article II if such Lender or such L/C Issuer, as applicable, has notified the AdministrativeApplicable Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative
AgentAgents or the BorrowerBorrowers may, in
itstheir discretion, agree to accept notices and other communications to itthem hereunder by electronic communications pursuant to procedures
approved by
itthem, provided that approval of such procedures may be limited to particular notices or communications.
Unless the AdministrativeApplicable Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the senders receipt of an acknowledgement from the intended recipient (such as by the return receipt requested function,
as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient and no such
acknowledgment is received, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall
be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication
is available and identifying the website address therefor.
(c) The Platform. THE PLATFORM IS PROVIDED AS
IS AND AS AVAILABLE.. THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR
COMPLETENESS OF BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH BORROWER MATERIALS OR THE
PLATFORM.
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(d) In no event shall
the
Administrativeany Agent or any of itstheir respective Related Parties (collectively, the Agent Parties) have any liability to theany Borrower, any Lender, any L/C Issuer or any other Person for losses,
claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrowers
or the AdministrativeBorrowers or
such Agents transmission of Borrower Materials through the
Internet or by email, except to the extent that such
losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided,
however, that in no event shall any Agent Party have any liability to
theany Borrower, any Lender, any L/C Issuer or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).
(e)
(d) Change of Address, Etc. Each of the BorrowerBorrowers, the Administrative
AgentAgents, the L/C Issuers and the Swing
Line Lenders may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, telecopier or telephone number for notices and other
communications hereunder by notice to the
BorrowerBorrowers
, the Administrative Agent, the L/C Issuers and the Swing Line Lenders. In addition, each Lender agrees to notify the
AdministrativeApplicable
Agent from time to time to ensure that the Administrativesuch Agent has on record (i) an effective address, contact name,
telephone number, telecopier number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to cause at least one individual
at or on behalf of such Public Lender to at all times have selected the Private Side Information or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in
accordance with such Public Lenders compliance procedures and applicable Law, including United States Federal and state securities Laws, to make reference to Borrower Materials that are not made available through the Public Side
Information portion of the Platform and that may contain material non-public information with respect to the
BorrowerOperating
Partnership or its securities for purposes of United States Federal or state securities laws.
(f)
(e) Reliance by Administrative
AgentAgents, L/C IssuerIssuers and Lenders. The Administrative Agent Agents, the L/C Issuers and the Lenders shall be entitled to rely and
act upon any notices (including telephonic Committed RC Loan Notices and Swing Line Loan Notices) purportedly given by or on behalf of the BorrowerBorrowers even if (i) such notices were not made in a manner
specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The BorrowerBorrowers shall indemnify the Administrative
AgentAgents, the L/C Issuers, each Lender
and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of
theany Borrower. All telephonic notices to and other telephonic communications with the Administrativean Agent may be recorded by the Administrativesuch Agent, and each of the parties hereto hereby consents to such recording.
11.03 No Waiver; Cumulative Remedies; Enforcement. No failure by any Lender, any L/C Issuer or the Administrativeany Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
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Notwithstanding anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be
instituted and maintained exclusively by, the Administrative Agent in accordance with Section 9.02 for the benefit of all the Lenders and the L/C Issuers; provided, however, that the foregoing shall not
prohibit (a) the
Administrativeany Agent from exercising on
its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrativean Agent) hereunder and under the other Loan Documents, (b) any L/C
Issuer or Swing Line Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as L/C Issuer or Swing Line Lender, as the case may be) hereunder and under the other Loan Documents, (c) any Lender from
exercising setoff rights in accordance with Section 11.08 (subject to the terms of Section 2.14), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own
behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided, further, that if at any time there is no Person acting as
Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 9.02 and (ii) in addition
to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.14, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies
available to it and as authorized by the Required Lenders.
11.04 Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The
BorrowerBorrowers
shall pay (i) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent and itsAgents
and their Affiliates (including the reasonable fees, charges and disbursements of one outside counsel and one local counsel for the
Administrative
AgentAgents and, solely in the case of an
actual or perceived conflict of interest, one additional counsel in each applicable jurisdiction), in connection with (x) the syndication of the credit facilities provided for herein and the preparation, negotiation, execution, delivery and
administration of this Agreement and the other Loan Documents, (y) any amendment, modification or waiver of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated); provided,
however, that the Administrative Agent shall provide the
BorrowerBorrowers
with copies of invoices from counsel which invoices shall include details of the work performed and the amounts billed therefor, and (z) all reasonable and documented out-of-pocket expenses incurred by the L/C Issuers in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (ii) all reasonable
and documented out-of-pocket expenses incurred by the Administrative
AgentAgents, any Lender or any L/C Issuer
(including the fees, charges and disbursements of any counsel for the Administrative AgentAgents, any Lender or any L/C Issuer, in connection with the enforcement
or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including all such
out -of -pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) Indemnification by the BorrowerBorrowers. The BorrowerBorrowers shall indemnify the
Administrativeeach Agent (and any sub-agent thereof), each
Co-Sustainability Structuring Agent, each Lender and each L/C Issuer, and each Related Party of any of the foregoing Persons (each such Person being called
an Indemnitee) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the reasonable and documented fees, charges and disbursements of any counsel for any
Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any third party or by theany Borrower or any other Loan Party arising out of, in connection with,
or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or
thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agenteach Agents (and any sub-agent
thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents (including in
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respect of any matters addressed in Section 3.01), (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by
any L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by
theany Borrower or any of
itstheir
respective Subsidiaries, or any Environmental Liability related in any way to theany Borrower or any of itstheir respective Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a
third party or by
theany Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result
from a claim brought by
theany Borrower or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitees obligations hereunder or under any other Loan Document, if thesuch Borrower or such other Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction.
(c) Indemnification and Reimbursement by the Lender Parties. To the extent that the
BorrowerBorrowers
for any reason
failsfail to indefeasibly pay or reimburse any amount required under
subsection clause (a) or (b) of this
Section 11.04 to be paid or reimbursed by it to the Administrativethem to any Agent (or any
sub-agent thereof), any L/C Issuer or any Related Party of any of the foregoing, each Lender Party severally agrees to:
(i) indemnify the
Administrativesuch Agent (or any such sub-agent) and such L/C Issuer or such Related Party, as the case may be, from and against such Lender Partys Applicable Percentage (determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that is imposed on, incurred by, or asserted against
the
Administrativesuch Agent or such L/C Issuer
in any way relating to or arising out of the Loan Documents or any action taken or omitted by the Administrativesuch Agent or such L/C Issuer, as applicable, under the Loan Documents;
provided, however, that no Lender Party shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Administrativesuch Agents or such L/C Issuers gross negligence or willful misconduct as found in a final, non-appealable judgment by a court of competent jurisdiction; and
(ii) pay to the
Administrativesuch Agent (or any such sub-agent), such L/C Issuer or such Related Party, as the case may be, such Lenders Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of
such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrativesuch Agent (or any such sub-agent) or such L/C Issuer in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrativesuch Agent (or any such sub-agent) or such L/C Issuer in connection with such capacity.
The obligations of the Lenders under this
subsection clause (c) are subject to the provisions of
Section 2.13(d).
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(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No
Indemnitee referred to in subsection
clause (b) above shall be
liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems
in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a
final and nonappealable judgment of a court of competent jurisdiction.
(e) Payments. All amounts due under this Section shall be payable not later than ten Business Days after demand therefor.
(f) Survival. The agreements in this Section shall
survive the resignation of the
Administrativeany Agent, any L/C
Issuer and any Swing Line Lender, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.
11.05 Payments Set Aside. To the extent that any payment by or on behalf of theany Borrower is made to the
Administrativeany Agent, any L/C Issuer or
any Lender, or the
Administrativeany Agent, any L/C Issuer or
any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered
into by the
Administrativesuch Agent, such L/C Issuer
or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender and each L/C Issuer severally agrees to pay to the
Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate
per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders and the L/C Issuers under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination
of this Agreement.
11.06 Successors and Assigns.
(a) Successors and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby, except that neither theany Borrower nor any other Loan Party may assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of the Administrativeeach Agent, each Co-Sustainability Structuring Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of subsection clause (b) of this Section 11.06, (ii) by way of participation in accordance with the provisions of
subsection
clause (d) of this
Section 11.06, (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection clause (f) of this Section 11.06
(and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors
and assigns permitted hereby, Participants to the extent provided in subsection
clause (d) of this
Section 11.06 and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative AgentAgents, the L/C Issuers and the Lenders) any legal or equitable right,
remedy or claim under or by reason of this Agreement.
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(b) Assignments by Lenders. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans (including for purposes of this
subsection
clause (b), participations in L/C
Obligations and in Swing Line Loans) at the time owing to it); provided that any such assignment shall be subject to the following conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the entire remaining amount of the assigning Lenders Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and
(B) in any case not described in Section 11.06(b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if Trade Date is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than (I) US$25,000,000 or the Equivalent thereof in the case of Loans under the Multicurrency RC Tranche and the USD RC Tranche, (II) £25,000,000 in the case of Loans under the GBP RC Tranche and the Term Loan Tranche and (III) A$25,000,000 in the case of Loans under the AUD RC Tranche unless the Administrative Agent otherwise consents (such consent not to be unreasonably withheld or delayed); provided, however, that concurrent assignments to members of an Assignee Group and concurrent assignments from members of an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount has been met.
(ii) Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lenders rights and obligations under this Agreement with respect to the Loans or the Commitment assigned under and in respect of one or more of the Tranches, except that this clause (ii) shall not apply to rights in respect of a Swing Line Lenders rights and obligations in respect of Swing Line Loans;
(iii) Required Consents. No consent shall be required for any assignment except to the extent required by Section 11.06(b)(i)(B) and, in addition:
(A) the consent of the BorrowerOperating
Partnership (such consent not to be unreasonably withheld) shall be required unless (1) an Event of Default has occurred and is continuing at the time of such assignment or (2) such
assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided that the BorrowerOperating Partnership shall be deemed to have consented to any such
assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof;
(B) the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required if such assignment is to a Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender;
142
(C) the consent of the applicable L/C Issuer (such consent not to be unreasonably withheld or delayed) shall be required for any assignment that increases the obligation of the assignee to participate in exposure under one or more Letters of Credit (whether or not then outstanding); and
(D) the consent of the Swing Line Lenders (such consent not to be unreasonably withheld or delayed) shall be required if such assignment is to a Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender.
(iv) Assignment and Assumption. The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of US$3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
(v) No Assignment to Certain Persons. No such assignment shall be made (A) to theany Borrower, any Guarantor, or any of the BorrowersBorrowers
Affiliates or Subsidiaries, (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons
described in this clause (B) or (C) to a natural person.
(vi) Certain
Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the
parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or
subparticipations, or other compensating actions, including funding, with the consent of the BorrowerOperating Partnership and the Administrative Agent, the applicable pro
rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such
Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Line Loans in
accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance with the
provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection
clause (c) of this Section, from and after the
effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all
of the assigning Lenders rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05, and 11.04 with respect to facts and circumstances occurring prior to the effective date of such assignment. Upon
request, the applicable Borrower (at its expense) shall
execute and deliver a Note to the
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assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this
clause (b) shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection
clause (d) of this
Section 11.06. subsection
(c) Register. The Administrative Agent, acting solely for this purpose as
an agent of the
BorrowerBorrowers
(and such agency being solely for tax purposes), shall maintain at the Administrative Agents Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the
names and addresses of the Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the Register). The entries in the Register
shall be conclusive, absent manifest error, and the
BorrowerBorrowers
, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. In addition, the Administrative Agent shall maintain on the Register information regarding the designation, and revocation of designation, of any Lender as a Defaulting Lender. The Register shall be available for inspection
by theany Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(d) Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative
AgentBorrowers, the Co-Sustainability Structuring Agents
or the Agents, sell participations to any Person (other than a natural person, a Defaulting Lender,
theany Borrower, any Guarantor, or any of the BorrowersBorrowers
Affiliates or Subsidiaries) (each, a Participant) in all or a portion of such Lenders rights and/or obligations under this Agreement (including all or a portion of its
Commitment and/or the Loans (including such Lenders participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lenders obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative
Agent,Borrowers, the Agents, the Co-Sustainability
Structuring Agents, the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lenders rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement, provided that such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 11.01 that affects such Participant. Subject to clause (e) of this Section,
subsection
theeach Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to clause (b) of this
Section 11.06. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.08 as though it were a Lender, provided such Participant agrees to be
subject to Section 2.14 as though it were a Lender. subsection
(e) Limitations upon Participant
Rights. A Participant shall not be entitled to receive any greater payment under Section 3.01 or 3.04 than the applicable Lender would have been entitled to receive with respect to the participation sold
to such Participant, unless the sale of the participation to such Participant is made with the BorrowersOperating
Partnerships
prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.01 unless the BorrowerOperating
Partnership is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the
BorrowerBorrowers
, to comply with Section 3.01(e) as though it were a Lender.
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(f) Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or any other central bank in accordance with applicable local laws or regulations; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(g) Resignation as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding anything to the contrary contained herein, if
at any time an L/C Issuer assigns all of its Commitment and Loans pursuant to clause (b) above, such L/C Issuer may, upon 30 days
notice to the
subsection BorrowerBorrowers
and the Lenders, resign as (i) an L/C Issuer and/or (ii) as a Swing Line Lender. In the event of any such resignation as an L/C Issuer or a Swing Line Lender, the BorrowerOperating
Partnership shall be entitled to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender hereunder, subject to such Lenders consent, in its sole and absolute discretion;
provided, however, that no failure by the Borrower
toOperating Partnership to appoint any such
successor shall affect the resignation of an L/C Issuer or Swing Line Lender, as the case may be. If an L/C Issuer resigns, it shall retain all the rights, powers, privileges and duties of an L/C Issuer hereunder with respect to all Letters of
Credit outstanding as of the effective date of its resignation as an L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate
Committed RC Loans or fund risk participations in Unreimbursed Amounts pursuant to
Section 2.04(c)). If a Swing Line Lender resigns, it shall retain all the rights of a Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such
resignation, including the right to require the Lenders to make Base Rate Committed RC Loans or fund risk
participations in outstanding Swing Line Loans pursuant to Section 2.05(c). Upon the appointment of a successor L/C Issuer and/or Swing Line Lender, (a) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the case may be, and (b) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time
of such succession or make other arrangements satisfactory to the resigning L/C Issuer to effectively assume the obligations of the resigning L/C Issuer with respect to such Letters of Credit.
(h) Competitors. (i) Notwithstanding anything to the contrary contained in this Agreement, unless an Event of Default has occurred
and is continuing, no assignment or participation shall be made to any Person that is a Competitor as of the date (the Trade Date) on which the assigning Lender enters into a binding agreement to sell and assign all or a portion
of its rights and obligations under this Agreement to such Person (unless the BorrowerOperating Partnership has consented to such assignment in writing in its
sole and absolute discretion, in which case such Person will not be considered a Competitor for the purpose of such assignment or participation). For the avoidance of doubt, with respect to any assignee that becomes a Competitor after the applicable
Trade Date (including as a result of the delivery of a notice pursuant to, and/or the expiration of the notice period referred to in, the definition of Competitor), (x) such assignee shall not retroactively be disqualified from
becoming a Lender and (y) the execution by the
BorrowerOperating
Partnership of an Assignment and Assumption with respect to such assignee will not by itself result in such assignee no longer being considered a Competitor. Any assignment in violation of this
clause (h)(i) shall not be void, but the other provisions of this clause (h) shall apply.
(ii) If any assignment or participation is made to any Competitor without the BorrowersOperating
Partnerships
prior written consent in violation of clause (i) above, or if any Person becomes a Competitor after the applicable Trade Date, the BorrowerBorrowers may, at
itstheir sole expense and effort, upon notice to the applicable Competitor and the Administrative Agent, (A) terminate any Revolving Credit Commitment of such Competitor and repay all obligations of the BorrowerBorrowers owing to such Competitor in connection with such Revolving Credit Commitment and/or (B) require such Competitor to assign, without recourse (in
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accordance with and subject to the restrictions contained in this Section 11.06) all of its interest, rights and obligations under this Agreement to one or more Eligible Assignees at the lowest of (x) the principal amount thereof, (y) the amount that such Competitor paid to acquire such interests, rights and obligations and (z) the market price of such Loans, in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder.
(iii) Notwithstanding anything
to the contrary contained in this Agreement, Competitors (A) will not have the right to (x) receive information, reports or other materials provided to the Lenders by the Borrower, the
AdministrativeBorrowers, any Agent or any
other Lender, (y) attend or participate in meetings attended by the Lenders and the Administrativeany Agent, or (z) access any electronic site established for the
Lenders or confidential communications from counsel to or financial advisors of the Administrativeany Agent or the Lenders and (B)(x) for purposes of any consent to any
amendment, waiver or modification of, or any action under, and for the purpose of any direction to the Administrativeany Agent or any Lender to undertake any action (or refrain from taking
any action) under this Agreement or any other Loan Document, each Competitor will be deemed to have consented in the same proportion as the Lenders that are not Competitors consented to such matter, and (y) for purposes of voting on any
reorganization plan (each, a Reorganization Plan), each Competitor party hereto hereby agrees (1) not to vote on such Reorganization Plan, (2) if such Competitor does vote on such Reorganization Plan notwithstanding the
restriction in the foregoing clause (1), such vote will be deemed not to be in good faith and shall be designated pursuant to Section 1126(e) of the Bankruptcy Code (or any similar provision in any other Debtor Relief Laws),
and such vote shall not be counted in determining whether the applicable class has accepted or rejected such Reorganization Plan in accordance with Section 1126(c) of the Bankruptcy Code (or any similar provision in any other Debtor Relief
Laws) and (3) not to contest any request by any party for a determination by the Bankruptcy Court (or other applicable court of competent jurisdiction) effectuating the foregoing clause (2).
(iv) The Administrative Agent shall have the right, and the
BorrowerBorrowers
hereby expressly
authorizesauthorize
the Administrative Agent, to (A) post the list of Competitors provided by the BorrowerBorrowers and any updates thereto from time to time (collectively, the
Competitor List) on the Platform (the initial Competitor List is attached hereto as Schedule 1.01(D)), including that portion of the Platform that is designated for public side Lenders and/or (B) provide
the Competitor List to each Lender requesting the same.
11.07 Treatment of Certain Information;
Confidentiality. Each of the Administrative
AgentAgents, the Lenders and the L/C
Issuers agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates respective partners, directors, officers, employees,
agents, consultants, trustees, advisors and representatives (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential),
(b) to the extent required or requested by any regulatory authority purporting to have jurisdiction over it (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating
to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in,
or any prospective assignee of or Participant in, any of its rights and obligations under this Agreement or any Eligible Assignee invited to be a Lender pursuant to Section 2.16(c) or (ii) any actual or prospective
party (or its managers, administrators, trustees, partners, directors, officers, employees, agents, advisors and other representatives) to any swap, derivative or other transaction under which payments are to be made by reference to theany
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Borrower and its obligations, this Agreement or payments hereunder, (g) on a confidential basis to (i) any rating agency in connection with rating the BorrowerOperating
Partnership or its Subsidiaries or the Facility or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the
Facility, (h) with the consent of the
BorrowerOperating
Partnership or (i) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to the Administrativeany Agent, any Lender, any L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than the
BorrowerBorrowers
. In addition, the Administrative
AgentAgents and the Lenders may disclose
the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry and service providers to the
Administrative
AgentAgents and the Lenders in connection
with the administration of this Agreement, the other Loan Documents, and the Commitments. For purposes of this Section, Information means all information received from the BorrowerOperating
Partnership or any Subsidiary relating to the BorrowerOperating Partnership or any Subsidiary or any of their respective
businesses, other than any such information that is available to the Administrativeany Agent, any Lender or any L/C Issuer on a nonconfidential basis prior
to disclosure by the
BorrowerOperating
Partnership or any Subsidiary, provided that, in the case of information received from the
BorrowerOperating
Partnership or any Subsidiary after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own
confidential information.
Each of the Administrative
AgentAgents, the Lenders and the L/C
Issuers acknowledges that (a) the Information may include material non-public information concerning the
BorrowerOperating
Partnership or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and
(c) it will handle such material non-public information in accordance with applicable Law, including United States Federal and state securities Laws.
11.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender, each L/C Issuer and each of
their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever
currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender, such L/C Issuer or any such Affiliate to or for the credit or the account of
theany Borrower or any other Loan Party against any and all of the obligations of thesuch Borrower or such Loan Party now or hereafter existing under this
Agreement or any other Loan Document to such Lender or such L/C Issuer, irrespective of whether or not such Lender or such L/C Issuer shall have made any demand under this Agreement or any other Loan Document and although such obligations of the
Borrower or such Loan Party may be contingent or unmatured or are owed to a branch or office of such Lender or such L/C Issuer different from the branch or office holding such deposit or obligated on such indebtedness; provided, that in the
event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of
Section 2.18 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the
Administrative
AgentAgents and the Lenders, and
(y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender,
each L/C Issuer and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, such L/C Issuer or their respective Affiliates may have. Each Lender and each L/C
Issuer agrees to notify the
BorrowerBorrowers
and the Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application.
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11.09 Interest Rate Limitation. Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the Maximum
Rate). If the
Administrativeany Agent or any Lender shall
receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the applicable Borrower. In determining whether the interest contracted for,
charged, or received by the
Administrativean Agent or a Lender exceeds
the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects
thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.
11.10 Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto
in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and the other Loan Documents constitute the entire contract among the parties relating to
the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 5.01, this Agreement shall become effective
when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Copies of originals, including
copies delivered by facsimile, .pdf, or other electronic means, shall have the same import and effect as original counterparts and shall be valid, enforceable and binding for the purposes of this Agreement. The words execution,,
signed,, signature, and words of like import shall be deemed to include electronic signatures or the keeping of records in electronic
form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law,
including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act. Notwithstanding
anything contained herein to the contrary, the
Administrativeno Agent is under noany obligation to accept an electronic signature in any form or in any format unless expressly agreed to by the
Administrativesuch Agent pursuant to
procedures approved by it. Without limitation of the foregoing, (a) to the extent the Administrativeany Agent has agreed to accept such electronic signature, the Administrative
AgentAgents and each of the Lender Parties
shall be entitled to rely on any such electronic signature purportedly given by or on behalf of any Loan Party or any other party hereto without further verification and (b) upon the request of the Administrativeany Agent or any Lender, any electronic signature shall be promptly followed by such manually executed counterpart.
11.11 Survival of Representations and Warranties. All representations and warranties made hereunder and in any other Loan
Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Administrativeeach Agent and each Lender, regardless of any investigation made by the Administrativeany Agent or any Lender or on their behalf and notwithstanding that
the
Administrativeany Agent or any Lender may
have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall
remain outstanding.
11.12 Severability. If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions
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with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this Section 11.12, if and to the extent that the enforceability of any
provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrativean Agent, an L/C Issuer or a Swing Line Lender, as applicable, then such
provisions shall be deemed to be in effect only to the extent not so limited.
11.13 Replacement of Lenders. If any
Lender requests compensation under Section 3.04, or if theany Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender is a Defaulting Lender or a Non-Consenting Lender, then the BorrowerBorrowers may, at
itstheir sole expense and effort, upon notice to such Lender (a Departing Lender) and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in, and consents required by, Section 11.06), all of its interests, rights and obligations under this Agreement and the related Loan Documents to a Replacement Lender that shall assume
such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that:
(a) the BorrowerBorrowers shall have paid to the Administrative Agent the assignment fee
specified in Section 11.06(b);
(b) such Lender shall have received payment of an amount equal to 100% of
the outstanding principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05)
from the applicable Replacement Lender (to the extent of such outstanding principal and accrued interest and fees) or the BorrowerBorrowers (in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter;
(d) such assignment does not conflict with applicable Laws; and
(e) in the case of any assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable Replacement Lender shall have consented to the applicable amendment, waiver or consent.
A Lender shall not be required to make
any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the BorrowerBorrowers to require such assignment and delegation cease to apply. Each
Departing Lender required to make an assignment pursuant to this Section 11.13 shall promptly execute and deliver an Assignment and Assumption with the applicable Replacement Lender. If such Departing Lender does not
execute and deliver to the Administrative Agent a duly completed Assignment and Assumption and/or any other documentation necessary to reflect such replacement within a period of time deemed reasonable by the Administrative Agent after the later of
(i) the date on which the Replacement Lender executes and delivers such Assignment and Assumption and/or such other documentation and (ii) the date on which the Departing Lender receives all payments described in clause (b) of
this Section 11.13, then such Departing Lender shall be deemed to have executed and delivered such Assignment and Assumption and/or such other documentation as of such date and the BorrowerBorrowers shall be entitled (but not obligated) to execute and deliver such Assignment and Assumption and/or such other documentation on behalf of such Departing Lender.
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11.14 Governing Law; Jurisdiction; Etc.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) SUBMISSION TO JURISDICTION. THEEACH BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY
THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN
RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH
ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVEANY AGENT, ANY LENDER OR ANY L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THEANY BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c) WAIVER OF VENUE. THEEACH BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT
REFERRED TO IN
PARAGRAPH
CLAUSE (b) OF THIS
SECTION 11.14. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02. EACH GUARANTOR HEREBY IRREVOCABLY APPOINTS PARENT, WITH AN OFFICE ON THE DATE HEREOF AT 27777 FRANKLIN ROAD, SUITE 200, SOUTHFIELD, MICHIGAN 48034, UNITED STATES, AS ITS AGENT TO RECEIVE, ON BEHALF OF SUCH PERSON, SERVICE OF COPIES OF THE SUMMONS AND COMPLAINT AND ANY OTHER PROCESS WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING. SUCH SERVICE MAY BE MADE BY MAILING OR DELIVERING A COPY OF SUCH PROCESS TO SUCH PERSON IN CARE OF THE PARENT AT PARENTS ABOVE ADDRESS, AND EACH SUCH PERSON HEREBY IRREVOCABLY AUTHORIZES AND DIRECTS PARENT TO ACCEPT SUCH SERVICE ON ITS BEHALF. PARENT HEREBY IRREVOCABLY CONSENTS TO SUCH APPOINT AS AGENT FOR SERVICE OF PROCESS FOR EACH GUARANTOR. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
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(e) Without prejudice to any other mode of service allowed under any applicable law, each
Loan Party not formed or incorporated in the United States, if any: (i) will irrevocably appoint the Initial Process Agent (as defined below) as its agent for service of process in relation to any proceedings before the courts described in
Section 11.14(b) in connection with the Loan Documents and (ii) agrees that failure by any Process Agent (as defined below) to notify any Loan Party of the process will not invalidate the proceedings concerned. If any
Person appointed as a Process Agent is unable for any reason to act as agent for service of process, the Borrowerapplicable Loan Party shall immediately (and in any event within ten
(10) days of such event taking place) appoint another process agent on terms acceptable to the Administrative Agent (such replacement process agent and the Initial Process Agent, each a Process Agent). Failing this, the
Administrative Agent may appoint another process agent for this purpose. Initial Process Agent means a nationally recognized company that regularly provides process agent services and that is reasonably approved by the
Administrative Agent.
11.15 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
11.16 No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated
hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), theeach Borrower and each other Loan Party acknowledges and agrees, and
acknowledges its Affiliates understanding, that: (i) (A) the arranging and other services regarding this Agreement provided by the Administrative
AgentAgents, the Co-Sustainability Structuring
Agents and the Arrangers are arms-length commercial transactions between theeach Borrower, each other Loan Party and their respective Affiliates, on the one hand, and the Administrative
AgentAgents, the Co-Sustainability Structuring
Agents and the Arrangers, on the other hand, (B) each of the BorrowerBorrowers and the other Loan Parties has consulted its own legal,
accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) theeach Borrower and each other Loan Party is capable of evaluating, and
understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) the
Administrative
AgentAgents, the Co-Sustainability Structuring
Agents and the Arrangers are and have been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an
advisor, agent or fiduciary for
theany Borrower, any other Loan Party or any of their respective Affiliates, or any other Person and (B) neither the
Administrative Agent nornone of any Agent, any
Co-Sustainability Structuring Agent or any Arranger has any obligation to
theany
Borrower, any other Loan Party or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents;
and (iii) the Administrative
AgentAgents, the Co-Sustainability Structuring
Agents and the Arrangers and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the BorrowerBorrowers
, the other Loan Parties and their respective Affiliates, and neither the Administrative Agent nornone of any Agent, any Co-Sustainability Structuring Agents or any Arranger has any obligation to disclose any of such interests to theany Borrower, any other Loan Party any of their respective Affiliates. To the fullest extent permitted by law, each of the
BorrowerBorrowers
and the other Loan Parties hereby waives and releases any claims that it may have against the Administrative
Agentany Agent, any Co-Sustainability Structuring
Agent and any Arranger with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
151
11.17 Electronic Execution of Assignments and Certain Other Documents. The
words
execution,,
signed,, signature, and words of like import in any Assignment and Assumption or in any amendment or other modification hereof
(including waivers and consents) shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use
of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records
Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
11.18 USA Patriot
Act; Beneficial Ownership. Each Lender that is subject to the Patriot Act and the Administrativeeach Agent (for itself and not on behalf of any Lender) hereby notifies
the
BorrowerBorrowers
that (a) pursuant to the requirements of the Patriot Act and other anti-money laundering and anti-terrorism laws and regulations, it is required to obtain, verify and record information that
identifies each Loan Party, which information includes the name and address of such Loan Party and other information that will allow such Lender or the
Administrativesuch Agent, as applicable, to
identify such Loan Party in accordance with the Patriot Act. The Parent and the BorrowerBorrowers shall, and shall cause each of their Subsidiaries to, promptly
following a request by the
Administrativeany
Agent or any Lender, provide all documentation and other information that the
Administrativesuch Agent or such Lender requests
in order to comply with its ongoing obligations under applicable know your customer and anti-money laundering rules and regulations, including the Patriot Act, the Trading with the Enemy Act and such other anti-money laundering and
anti-terrorism laws and regulations and (b) pursuant to the Beneficial Ownership Regulation, it is required, with respect to any Borrower that qualifies as a legal entity customer under the Beneficial Ownership Regulation, to obtain
a Beneficial Ownership Certification in connection with the execution and delivery of this Agreement. The Parent and the BorrowerBorrowers shall, and shall cause each of their Subsidiaries to, provide,
to the extent commercially reasonable, such information and take such actions as are reasonably requested by the Administrativeany Agent or any Lenders in order to assist the Administrative
AgentAgents and the Lenders in maintaining
compliance with the Patriot Act, the Trading with the Enemy Act and such other anti-money laundering and anti-terrorism laws and regulations.
11.19 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
11.20 Acknowledgement and Consent to Bail-In of Affected Financial Institutions.
Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
152
(b) the effects of any Bail-In Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution Authority.
11.21 Judgment Currency.
(a) If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder in any currency (the
Original Currency) into another currency (the Other Currency), the parties hereto agree, to the fullest extent permitted by law, that the rate of exchange used shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase the Original Currency with the Other Currency at Citibanks principal office in London at
11:00
a.m11:00 A.M
. (London Time) on the Business Day immediately preceding the day on which any such judgment, or any relevant part thereof, is paid or otherwise satisfied.
(b) The obligations of any Loan Party in respect of any sum due from such Loan Party to the Administrativeany Agent or any Lender hereunder shall, notwithstanding any judgment in such Other Currency, be discharged only to the extent that on the Business Day following receipt by the Administrativesuch Agent or such Lender (including by the AdministrativeApplicable Agent on behalf of such Lender), as applicable, of any sum
adjudged to be so due in the Other Currency the
Administrativesuch Agent or such Lender may
in accordance with normal banking procedures purchase the Original Currency with the Other Currency. If the Original Currency so purchased is less than the sum originally due to
the
Administrativesuch Agent or such Lender in
the Original Currency, each Loan Party agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Administrativesuch Agent and/or such Lender against such loss, and if the amount of
the Original Currency so purchased exceeds the sum originally due to the Administrativesuch Agent or such Lender in the Original Currency, the Administrativesuch Agent or such Lender shall remit such excess to the Loan Party entitled to such amount.
11.22 Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Supported Hedge Agreements or any other agreement or instrument that is a QFC (such support, QFC Credit Support and each such QFC a Supported QFC), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the U.S. Special Resolution Regimes) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
(a) In the event a Covered Entity that is party to a Supported QFC (each, a Covered Party) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC
153
Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
(b) As used in this Section 11.22, the following terms have the following meanings:
(i) BHC Act Affiliate of a party means an affiliate (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
(ii) Covered Entity means any of the following:
(A) a covered entity as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(B) a covered bank as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(C) a covered FSI as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
(iii) Default Right has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
(iv) QFC has the meaning assigned to the term qualified financial contract in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
11.23 Parent Liability. The Administrative
AgentAgents and the Lenders acknowledge and agree
that the Parents liability for the Guaranteed Obligations (as defined in the Parent Guaranty) shall not at any time exceed an amount equal to the then aggregate fair market value at such time of all of the Parents assets other than its
Equity Interests in the
BorrowerOperating
Partnership.
11.24 Removal of Borrowers.
Notwithstanding anything to the contrary in Section 11.01(a), so long as no Default or Event of Default has occurred and is then continuing and subject to Section 7.14, the Operating Partnership shall have the right to remove any Subsidiary of the Operating Partnership as a Borrower under the Facility that has no Loans to it outstanding at the time of such removal by providing written notice of such removal to the Administrative Agent. Any such notice given in accordance with this Section 11.24 shall be effective upon receipt by the Administrative Agent, which shall promptly give the Lenders notice of such removal. After the receipt of such written notice by the Administrative Agent, such Subsidiary shall cease to be a Borrower hereunder. Once removed pursuant to this Section 11.24, such Subsidiary shall have no right to borrow under the Facility unless the Operating Partnership provides notice as required pursuant to
154
Section 7.13 of the request again to add such Subsidiary as an Additional Borrower hereunder and such Subsidiary complies with the conditions set forth in Section 7.13 to become an Additional Borrower hereunder.
[SIGNATURE PAGES TO FOLLOW]
155
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
| ||
SUN COMMUNITIES OPERATING LIMITED PARTNERSHIP, a Michigan limited partnership | ||
By: |
Sun Communities, Inc., a Maryland corporation, its general partner | |
By: | ||
| ||
Karen J. Dearing | ||
| ||
| ||
Title: Executive Vice President | ||
[ |
SIGNATURE PAGE TO CREDIT AGREEMENT
S-1
GUARANTOR: | ||
SUN COMMUNITIES, INC., a Maryland corporation, its General Partner | ||
By: | ||
Name: Karen J. Dearing | ||
Title: Executive Vice President |
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SIGNATURE PAGE TO CREDIT AGREEMENT
S-2
ADMINISTRATIVE AGENT: | ||
CITIBANK, N.A., as Administrative Agent, a Lender, L/C Issuer and Swing Line Lender | ||
By: | ||
Name: | ||
Title: |
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SIGNATURE PAGE TO CREDIT AGREEMENT
S-3
AUSTRALIAN AGENT: | ||
CITISECURITIES LIMITED, as Australian Agent | ||
By: | ||
Name: | ||
Title: |
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SIGNATURE PAGE TO CREDIT AGREEMENT
S-4
LENDERS: | ||
BANK OF AMERICA, N.A., as a Lender, L/C Issuer and Swing Line Lender | ||
By: |
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Name: | ||
Title: |
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inserted.signatures continue on next page]
SIGNATURE PAGE TO CREDIT AGREEMENT
S-5
CITIZENS BANK, N.A., as a Lender, L/C Issuer and Swing Line Lender | ||
By: |
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Name: | ||
Title: |
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SIGNATURE PAGE TO CREDIT AGREEMENT
S-6
BANK OF MONTREAL, as a Lender, L/C Issuer and Swing Line Lender | ||
By: |
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Name: | ||
Title: |
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SIGNATURE PAGE TO CREDIT AGREEMENT
S-7
By |
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Name: | ||
Title: |
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SIGNATURE PAGE TO CREDIT AGREEMENT
S-8
ROYAL BANK OF CANADA, as a Lender, L/C Issuer and Swing Line Lender | ||
By |
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Name: | ||
Title: |
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SIGNATURE PAGE TO CREDIT AGREEMENT
S-9
FIFTH THIRD BANK, NATIONAL ASSOCIATION, as a Lender | ||
By: | ||
Name: | ||
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Title: |
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SIGNATURE PAGE TO CREDIT AGREEMENT
S 1
- 10
SCHEDULE 1.01(A)
Commitments and Applicable Percentages
COMMITTED REVOLVING LOAN FACILITY - MULTICURRENCY COMMITTED RC LOANS | ||||||||
Lender |
U.S. Dollar Equivalent Commitment |
Initial Applicable Percentage |
||||||
Citibank, N.A. |
U.S.$ | 148,400,000.00 | 14.84 | % | ||||
Bank of America, N.A. |
U.S.$ | 40,000,000.00 | 4.00 | % | ||||
Bank of Montreal |
U.S.$ | 100,000,000.00 | 10.00 | % | ||||
Citizens Bank, N.A. |
U.S.$ | 100,000,000.00 | 10.00 | % | ||||
JPMorgan Chase Bank, N.A. |
U.S.$ | 40,000,000.00 | 4.00 | % | ||||
Royal Bank of Canada |
U.S.$ | 100,000,000.00 | 10.00 | % | ||||
The Huntington National Bank |
U.S.$ | 67,500,000.00 | 6.75 | % | ||||
Regions Bank |
U.S.$ | 67,500,000.00 | 6.75 | % | ||||
Sumitomo Mitsui Banking Corporation |
U.S.$ | 54,100,000.00 | 5.41 | % | ||||
Truist Bank |
U.S.$ | 67,500,000.00 | 6.75 | % | ||||
U.S. Bank National Association |
U.S.$ | 67,500,000.00 | 6.75 | % | ||||
Wells Fargo Bank, National Association |
U.S.$ | 67,500,000.00 | 6.75 | % | ||||
The Bank of Nova Scotia |
U.S.$ | 50,000,000.00 | 5.00 | % | ||||
Goldman Sachs Bank USA |
U.S.$ | 30,000,000.00 | 3.00 | % | ||||
|
|
|
|
|||||
Total |
U.S.$ | 1,000,000,000.00 | 100 | % | ||||
|
|
|
|
COMMITTED REVOLVING LOAN FACILITY - USD COMMITTED RC LOANS | ||||||||
Lender |
Revolving Credit Commitment |
Initial Applicable Percentage |
||||||
Citibank, N.A. |
U.S.$ | 771,429.00 | 0.064 | % | ||||
Bank of America, N.A. |
U.S.$ | 43,671,428.50 | 3.64 | % | ||||
Bank of Montreal |
U.S.$ | 33,671,428.50 | 2.81 | % | ||||
Citizens Bank, N.A. |
U.S.$ | 103,671,428.50 | 8.64 | % | ||||
Fifth Third Bank, National Association |
U.S.$ | 128,671,428.50 | 10.72 | % | ||||
JPMorgan Chase Bank, N.A. |
U.S.$ | 43,671,428.50 | 3.64 | % | ||||
Royal Bank of Canada |
U.S.$ | 33,671,428.50 | 2.81 | % | ||||
The Huntington National Bank |
U.S.$ | 59,800,000.00 | 4.98 | % | ||||
Regions Bank |
U.S.$ | 59,800,000.00 | 4.98 | % | ||||
Sumitomo Mitsui Banking Corporation |
U.S.$ | 23,200,000.00 | 1.93 | % | ||||
Truist Bank |
U.S.$ | 59,800,000.00 | 4.98 | % | ||||
U.S. Bank National Association |
U.S.$ | 59,800,000.00 | 4.98 | % | ||||
Wells Fargo Bank, National Association |
U.S.$ | 59,800,000.00 | 4.98 | % | ||||
The Bank of Nova Scotia |
U.S.$ | 50,000,000.00 | 4.17 | % | ||||
PNC Bank, National Association |
U.S.$ | 100,000,000.00 | 8.33 | % | ||||
Flagstar Bank, FSB |
U.S.$ | 90,000,000.00 | 7.50 | % |
Sch. 1.01(A) 1
Washington Federal Bank |
U.S.$ | 100,000,000.00 | 8.33 | % | ||||
Associated Bank, National Association |
U.S.$ | 35,000,000.00 | 2.92 | % | ||||
Synovus Bank |
U.S.$ | 40,000,000.00 | 3.33 | % | ||||
Cadence Bank |
U.S.$ | 35,000,000.00 | 2.92 | % | ||||
First Commercial Bank, Ltd., New York Branch |
U.S.$ | 20,000,000.00 | 1.67 | % | ||||
Land Bank of Taiwan, NY Branch |
U.S.$ | 20,000,000.00 | 1.67 | % | ||||
|
|
|
|
|||||
Total |
U.S.$ | 1,200,000,000.00 | 100.00 | % | ||||
|
|
|
|
COMMITTED REVOLVING LOAN FACILITY - GBP COMMITTED RC LOANS | ||||||||
Lender |
Sterling Commitment |
Initial Applicable Percentage |
||||||
Citibank, N.A. |
£ | 57,108,000.00 | 10.71 | % | ||||
Bank of America, N.A. |
£ | 53,300,800.00 | 10.00 | % | ||||
Bank of Montreal |
£ | 53,300,800.00 | 10.00 | % | ||||
Fifth Third Bank, National Association |
£ | 57,108,000.00 | 10.71 | % | ||||
JPMorgan Chase Bank, N.A. |
£ | 53,300,800.00 | 10.00 | % | ||||
Royal Bank of Canada |
£ | 53,300,800.00 | 10.00 | % | ||||
The Huntington National Bank |
£ | 19,036,000.00 | 3.57 | % | ||||
Regions Bank |
£ | 19,036,000.00 | 3.57 | % | ||||
Sumitomo Mitsui Banking Corporation |
£ | 57,108,000.00 | 10.71 | % | ||||
Truist Bank |
£ | 19,036,000.00 | 3.57 | % | ||||
U.S. Bank National Association |
£ | 19,036,000.00 | 3.57 | % | ||||
Wells Fargo Bank, National Association |
£ | 19,036,000.00 | 3.57 | % | ||||
Goldman Sachs Bank USA |
£ | 53,300,800.00 | 10.00 | % | ||||
|
|
|
|
|||||
Total |
£ | 533,008,000.00 | 100 | % | ||||
|
|
|
|
COMMITTED REVOLVING LOAN FACILITY - AUD COMMITTED RC LOANS | ||||||||
Lender |
Australian Dollar Commitment |
Initial Applicable Percentage |
||||||
Citibank, N.A., Sydney Branch |
AU$ | 66,524,000.00 | 33.33 | % | ||||
Bank of America, N.A. |
AU$ | 66,524,000.00 | 33.33 | % | ||||
JPMorgan Chase Bank, N.A. |
AU$ | 66,524,000.00 | 33.33 | % | ||||
|
|
|
|
|||||
Total |
AU$ | 199,572,000.00 | 100 | % | ||||
|
|
|
|
GBP TERM LOAN FACILITY |
||||||||
Lender |
Sterling Commitment |
Initial Applicable Percentage |
||||||
Citibank, N.A. |
£ | 6,091,520.00 | 0.70 | % | ||||
Bank of America, N.A. |
£ | 59,773,040.00 | 6.83 | % | ||||
Bank of Montreal |
£ | 59,773,040.00 | 6.83 | % | ||||
Citizens Bank, N.A. |
£ | 59,773,040.00 | 6.83 | % |
Sch. 1.01(A) 2
Fifth Third Bank, National Association |
£ | 59,773,040.00 | 6.83 | % | ||||
JPMorgan Chase Bank, N.A. |
£ | 59,773,040.00 | 6.83 | % | ||||
Royal Bank of Canada |
£ | 59,773,040.00 | 6.83 | % | ||||
The Huntington National Bank |
£ | 59,773,040.00 | 6.83 | % | ||||
Regions Bank |
£ | 59,773,040.00 | 6.83 | % | ||||
Sumitomo Mitsui Banking Corporation |
£ | 59,773,040.00 | 6.83 | % | ||||
Truist Bank |
£ | 59,773,040.00 | 6.83 | % | ||||
U.S. Bank National Association |
£ | 59,773,040.00 | 6.83 | % | ||||
Wells Fargo Bank, National Association |
£ | 59,773,040.00 | 6.83 | % | ||||
The Bank of Nova Scotia |
£ | 38,072,000.00 | 4.35 | % | ||||
Goldman Sachs Bank USA |
£ | 38,072,000.00 | 4.35 | % | ||||
PNC Bank, National Association |
£ | 38,072,000.00 | 4.35 | % | ||||
Flagstar Bank, FSB |
£ | 26,650,400.00 | 3.04 | % | ||||
Associated Bank, National Association |
£ | 11,421,600.00 | 1.30 | % | ||||
|
|
|
|
|||||
Total |
£ | 875,656,000.00 | 100 | % | ||||
|
|
|
|
LETTERS OF CREDIT |
||||
L/C Issuer |
Letter of Credit Commitment |
|||
Citibank, N.A. |
U.S.$ | 33,333,333.35 | ||
Citizens Bank, N.A. |
U.S.$ | 33,333,333.33 | ||
Bank of America, N.A. |
U.S.$ | 33,333,333.33 | ||
Bank of Montreal |
U.S.$ | 33,333,333.33 | ||
JPMorgan Chase Bank, N.A. |
U.S.$ | 33,333,333.33 | ||
Royal Bank of Canada |
U.S.$ | 33,333,333.33 | ||
|
|
|||
Total |
U.S.$ | 200,000,000.00 | ||
|
|
SWING LINE LOANS |
||||
Swing Line Lender |
Swing Line Commitment |
|||
Citibank, N.A. |
U.S.$ | 56,169,568.51 | ||
Citizens Bank, N.A. |
U.S.$ | 37,850,113.55 | ||
Bank of America, N.A. |
U.S.$ | 15,140,045.42 | ||
Bank of Montreal |
U.S.$ | 37,850,113.55 | ||
JPMorgan Chase Bank, N.A. |
U.S.$ | 15,140,045.42 | ||
Royal Bank of Canada |
U.S.$ | 37,850,113.55 | ||
|
|
|||
Total |
U.S.$ | 200,000,000.00 | ||
|
|
Sch. 1.01(A) 3
Exhibit 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this Agreement) is made and entered into as of April 8, 2022 but for all purposes shall become effective on May 2, 2022 (the Effective Date), by and among SUN COMMUNITIES, INC., a Maryland corporation (the REIT), SUN COMMUNITIES OPERATING LIMITED PARTNERSHIP, a Michigan limited partnership (SCOLP) and KAREN J. DEARING (the Executive). As used herein, Company shall refer to the REIT and SCOLP together.
W I T N E S S E T H:
WHEREAS, SCOLP operates the business of the REIT;
WHEREAS, the REIT is the sole general partner of SCOLP;
WHEREAS, the Executive has historically provided services not only to the REIT, but also to SCOLP, but has resigned as the Companys Chief Financial Officer, Secretary and Treasurer as of the Effective Date; and
WHEREAS, the Company desires to continue the employment of the Executive, and the Executive desires to continue to be employed by the Company, on the terms and subject to the conditions set forth below.
NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:
1. Employment.
(a) The Company agrees to employ the Executive and the Executive accepts the employment, on the terms and subject to the conditions set forth below. During the Term (defined below), the Executive shall serve as the Executive Vice PresidentSpecial Projects of the REIT and shall assist in overseeing, managing and advising on special projects, including the Companys UK investments; its Inclusion, Diversity, Equity and Accessibility (IDEA) program; its enterprise resource planning project; its Innovation Team initiatives; corporate strategy; transitioning the CFO role to her successor; and such other duties as may reasonably be requested from time to time by the REITs Chief Executive Officer, Chief Financial Officer or the Board of Directors of the REIT (the Board), which duties shall be consistent with the Executives position as set forth above.
(b) For service as an officer and employee of the Company, the Executive shall be entitled to the full protection of the applicable indemnification provisions of the Articles of Incorporation and Bylaws of the REIT, as they may be amended from time to time.
2. Term of Employment.
(a) Subject to the provisions for termination provided below, the term of the Executives employment under this Agreement shall commence on the Effective Date and shall continue thereafter until the one (1) year anniversary of the Effective Date (the Initial Term); provided, however, that following the expiration of the Initial Term, the term of this Agreement shall be automatically extended for successive terms of one (1) year each thereafter (each a Renewal Term), unless either party notifies the other party in writing of its desire to terminate this Agreement at least ninety (90) days before the end of the Initial Term or the Renewal Term then in effect. The Initial Term and each Renewal Term are collectively referred to as the Term.
(b) The Executive acknowledges and agrees that the Executive is an at-will employee and that the Executives employment may be terminated, with or without cause, at the option of the Executive or the REIT.
3. Devotion to the Companys Business. The Executive shall devote her best efforts, knowledge, skill, and her entire productive time, ability and attention to the business of the Company during the Term; provided, however, the Executives expenditure of reasonable amounts of time on various charitable and other community activities, or on the Executives own personal investments and projects, shall not be deemed a breach of this Agreement so long as the amount of time so devoted does not materially impair, detract or adversely affect the performance of the Executives duties under this Agreement.
4. Compensation.
(a) During the Term, the Company shall pay or provide, as the case may be, to the Executive the compensation and other benefits and rights set forth in Sections 4, 5 and 6 of this Agreement.
(b) Base Compensation. As compensation for the services to be performed hereunder, the Company shall pay to the Executive, during her employment hereunder, an annual base salary of Four Hundred Thousand Dollars ($400,000) (the Base Salary). The Base Salary shall be payable in accordance with the Companys usual pay practices (including tax withholding), but in no event less frequently than monthly.
(c) Annual Bonus. The Executive will be eligible to receive a discretionary bonus (the Bonus) for each calendar year or portion of a calendar year during the Term (each, a Bonus Year). The amount of any Bonus for any whole or partial Bonus Year shall be determined by the Compensation Committee of the Board in an amount up to 100% of the aggregate Base Salary for such whole or partial Bonus Year. In determining the Bonus for any Bonus Year, the Compensation Committee in its sole discretion may take into account such criteria as it deems relevant or necessary in its discretion, including, without limitation, whether the Executive fulfills any individual goals and objectives for such Bonus Year set by the Board or Compensation Committee, the Companys performance and industry factors. Any such individual and Company goals and objectives may be, but need not be, set forth in a written plan approved by the Compensation Committee before or during any Bonus Year. The determination of the Bonus shall be made by the Compensation Committee of the Board no later than March 7th of the following calendar year and any Bonus shall be paid to the Executive on or before March 15th of the following calendar year.
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(d) Disability. During any period that the Executive fails to perform her duties hereunder as a result of incapacity due to physical or mental illness (the Disability Period), the Executive shall be entitled to receive, first, any amount that the Executive is eligible to receive under any disability benefit plans or programs of the Company and, second, any social security disability benefits that the Executive is eligible to receive (collectively, the Program Benefits). During the Disability Period and until her employment is terminated by the Company pursuant to Section 7(a)(iii) below, the Company shall pay to the Executive the difference, if any, between the Program Benefits received by the Executive and the amount of her full Base Salary, Bonus and other benefits at the rate in effect for such period. Any payments to the Executive under the preceding sentence shall be paid in accordance with the Companys regular payroll practices.
(e) Clawback. Notwithstanding anything to the contrary herein, the Bonus and any other incentive compensation paid or payable to the Executive hereunder shall not be deemed fully earned and vested, and shall be reimbursed by the Executive to the Company if previously paid, to the extent such incentive compensation becomes subject to clawback pursuant to the provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act, any rules promulgated thereunder or the rules and regulations of the New York Stock Exchange. Without limiting the foregoing, the Executive accepts, adopts and agrees to be subject to the Sun Communities, Inc. Executive Compensation Clawback Policy dated July 14, 2014, as it may be amended, restated or supplemented from time to time.
5. Benefits.
(a) Insurance. The Executive shall be eligible for life, medical, dental, optometry and hospitalization insurance for herself, her spouse and eligible family members commensurate with similarly situated executive employees of Company and in accordance with plan documents and Companys policies and procedures. The Executive must satisfy all plan requirements in order to enroll or continue in any insurance benefit plans.
(b) Savings Plans. The Executive, at her election, may participate, during her employment hereunder, in all retirement plans, 401(k) plans and other savings plans of the Company generally available from time to time to other executive employees of the Company and for which the Executive qualifies under the terms of the plans (and nothing in this Agreement shall or shall be deemed to in any way affect the Executives right and benefits under any such plan except as expressly provided herein). At the discretion of the Compensation Committee of the Board, the Executive may also be entitled to participate in any equity, stock option or other employee benefit plan that is generally available to senior executives of the Company. In addition to the foregoing, the Executives participation in and benefits under any such plan shall be on the terms and subject to the conditions specified in the governing document of the particular plan. Nothing contained in this Agreement shall be construed to create any obligation on the part of the Company to establish any such plan or to maintain the existence of any such plan which may be in effect from time to time.
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(c) Annual Paid Vacation. Beginning on the Effective Date of this Agreement, the Executive shall be entitled to four (4) weeks paid vacation time each year, which may be used for any purpose including vacation, sick or personal time. On each anniversary of the Effective Date during the Term, the Executive shall be entitled to four (4) weeks paid vacation time. The Executive shall not take more than fourteen (14) consecutive calendar days of vacation without the prior approval of the REITs Chief Executive Officer. Unless otherwise approved by the Chief Executive Officer of the REIT in writing, vacation time does not roll over from one year to the next. Unused vacation time shall not be paid out at the end of the year or upon termination of employment for any reason.
6. Reimbursement of Business Expenses. The Company shall reimburse the Executive for travel, entertainment and other expenses reasonably and necessarily incurred by the Executive in the performance of her duties under this Agreement. The Executive shall furnish such documentation with respect to reimbursement to be paid hereunder in accordance with Companys expense reimbursement policies.
7. Termination of Employment.
(a) The Executives employment under this Agreement may be terminated:
(i) by either the Executive or the REIT at any time without Cause (as defined below) upon not less than sixty (60) days written notice;
(ii) by the REIT at any time for Cause, without prior notice;
(iii) by the REIT upon the Executives permanent disability (as defined below) upon not less than thirty (30) days written notice;
(iv) upon the Executives death; and
(v) by the Executive at any time for Good Reason (as defined below).
(b) For purposes hereof, for Cause shall mean: (i) a material breach of any provision of this Agreement by the Executive (if the breach is curable, it will constitute Cause only if it continues uncured for a period of twenty (20) days after Executives receipt of written notice of such breach from the Company); (ii) the Executives failure or refusal, in any material manner, to perform all lawful services required of her pursuant to this Agreement, which failure or refusal continues for more than twenty (20) days after the Executives receipt of written notice of such deficiency; (iii) the Executives commission of fraud, embezzlement or theft, or a crime constituting moral turpitude, in any case, whether or not involving Company, that in the reasonable good faith judgment of the REIT,
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renders the Executives continued employment harmful to the Company; (iv) the Executives misappropriation of Company assets or property, including, without limitation, obtaining reimbursement through fraudulent vouchers or expense reports; or (v) the Executives conviction or the entry of a plea of guilty or no contest by the Executive with respect to any felony or other crime that, in the reasonable good faith judgment of the REIT, adversely affects the Company or its reputation or business. The Company shall determine in its sole discretion whether Executive is terminated for Cause or has resigned with Good Reason.
(c) For purposes hereof, the Executives permanent disability shall be deemed to have occurred if the Executive, by reason of the Executives physical or mental disability or impairment which cannot be accommodated under the Americans with Disabilities Act (ADA) and which can be expected to result in death or can be expected to last for a period of not less than 6 months, (i) is unable to engage in any substantial gainful activity, or (ii) is receiving income replacement benefits for a period of not less than 6 months under an accident and health plan of the Company. The Company shall determine in its sole discretion whether the Executive is being terminated due to permanent disability.
(d) For purposes hereof, Good Reason shall mean: (i) a material breach of this Agreement by the Company that is not cured within thirty (30) days after receiving written notice from the Executive of such breach, which notice must be provided within ninety (90) days of the initial existence of the Good Reason condition, with the determination as to whether there has been a breach and whether the breach is material to be determined by the Nominating and Corporate Governance Committee of the Board in the reasonable and good faith exercise of its discretion; (ii) material diminution of, or material reduction or adverse alteration of, the Executives duties or responsibilities without the consent of the Executive, or the Companys assignment of duties, responsibilities or reporting requirements that are materially inconsistent with her positions or that materially expand her duties, responsibilities, or reporting requirements without the consent of the Executive; or (iii) any requirement by the Company that the Executive relocate to a principal place of business outside of the Detroit, Michigan metropolitan area. Written notice of an event constituting Good Reason must be provided to the Company by the Executive within ninety (90) days of its occurrence. The Company will have thirty (30) days to cure such occurrence, and the Executive may not terminate this Agreement due to Good Reason more than thirty (30) days following the last day of such cure period (and only if the Company has failed to cure).
8. Compensation Upon Termination or Disability.
(a) In the event that the REIT terminates the Executives employment under this Agreement without Cause pursuant to Section 7(a)(i) or if the Executive terminates this Agreement for Good Reason pursuant to Section 7(a)(v), (i) the Executive shall be entitled to Base Salary and benefits through the effective date of such termination paid in accordance with Companys normal payroll policy, (ii) the Executive shall be entitled to receive a Bonus equal to any amount for such Bonus accrued by the Company and unpaid as of the termination date, which Bonus shall be paid by the Company to the Executive
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within thirty (30) days of the effective date of such termination (or such later date as may be required in order to determine the amount of any Bonus being paid to the Executive but in no event later than March 15th of the calendar year following the calendar year that the Executives employment is terminated), and (iii) subject to the Executives execution of a general release of claims in a form satisfactory to the Company (a General Release), the Company shall pay the Executive monthly an amount equal to one-twelfth (1/12) of the Base Salary (at the rate that would otherwise have been payable under this Agreement) for a period of up to eighteen (18) months if the Executive fully complies with Sections 12 and 13 of this Agreement (the Severance Payment). The first monthly installment of the Severance Payment shall be paid on the Companys first payroll date after expiration of the revocation period, in accordance with the Age Discrimination in Employment Act (ADEA), as set forth in the General Release; provided, if the Company does not have sufficient time to include the first monthly installment of the Severance Payment in such first payroll date, it will be paid on the next payroll date; provided, further, that, regardless of when the Executive actually executes the General Release, if the applicable revocation period spans two calendar years, the payment of Severance Payments will not commence until the first day of a month in the second calendar year, at which time the Executive will be paid an amount equal to the aggregate amount of all payments delayed until such actual pay date, and the remaining Severance Payments not so delayed shall thereafter be provided to the Executive according to the payment schedule otherwise set forth in this Section 8(a). Notwithstanding the foregoing, the Severance Payment shall not be due the Executive if the Executive is entitled to Change in Control Benefits (as defined in Section 10 below). Upon notification by either party to the other party of the non-renewal of the Initial Term or any Renewal Term as provided in Section 2(a) above, the Executive shall not be entitled to any Severance Payments at the end of the Term.
(b) If (i) the Company terminates the Executives employment under this Agreement for Cause, or (ii) the Executive voluntarily terminates her employment hereunder, other than for Good Reason pursuant to Section 7(a)(v) hereof, the Executive shall be entitled to no further compensation or other benefits under this Agreement, except for any accrued and unpaid Base Salary and benefits through the effective date of such termination.
(c) In the event of termination of the Executives employment under this Agreement due to the Executives permanent disability or death, (i) the Executive (or her heirs, successors and assigns in the event of her death) shall be entitled to any Base Salary and benefits through the effective date of such termination, in accordance with Section 4(d), (ii) the Executive (or her heirs, successors and assigns in the event of her death) shall be entitled to receive a Bonus equal to any amount for such Bonus accrued by the Company and unpaid as of the termination date, which Bonus shall be paid by the Company to the Executive or her successors and assigns, as appropriate, within thirty (30) days of the effective date of such termination (or such later date as may be required in order to determine the amount of any Bonus being paid to the Executive but in no event later than March 15th of the calendar year following the calendar year that the Executives employment is terminated), and (iii) subject to the Executives (or, in the event of death,
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her heirs, successors or assigns) execution of a General Release and so long as the Executive fully complies with Sections 12 and 13 of this Agreement, the Company shall pay the Executive (or her heirs, successors and assigns in the event of her death) monthly during the twenty four (24) months following the termination date the difference, if any, between the Program Benefits received by the Executive during such period and an amount equal to one-twelfth (1/12) of the Base Salary (at the rate that would otherwise have been payable under this Agreement) during such period (the Disability Payment). The first monthly installment of the Disability Payment shall be paid on the Companys first payroll date after the expiration of the revocation period, in accordance with the Age Discrimination in Employment Act (ADEA), as set forth in the General Release; provided, if the Company does not have sufficient time to include the first monthly installment of the Disability Payment in such first payroll date, it will be paid on the next payroll date. The Executive agrees to cooperate in any reasonable requirement to undertake a medical physical examination as may be reasonably requested by an insurance carrier in the event that the Company decides to obtain additional death or disability insurance coverage on the Executive.
(d) Notwithstanding anything to the contrary in this Section 8, the Companys obligation to pay, and the Executives right to receive, any Bonus, Severance Payment or Disability Payment under this Section 8, shall terminate upon the Executives breach of any provision of Section 12 or Section 13 hereof. In addition, the Executive shall promptly return to the Company any Bonus, Severance Payment, or Disability Payment, upon the Executives breach of any provision of Section 12 or Section 13 hereof.
(e) If during the Notice Period this Agreement is terminated for any reason that would otherwise entitle the Executive to Severance Payments or Disability Payments in accordance with this Section 8, the Company shall be obligated to pay such Severance Payments and/or Disability Payments only through the end of the Notice Period, and the aggregate amount of Severance Payments and/or aggregate amount of Disability Payments shall be reduced accordingly.
(f) If either party notifies the other party of the non-renewal of the Initial Term or any Renewal Term as provided in Section 2(a) above, from the date of such notice through termination of employment or the end of the Term, as applicable (the Notice Period), the Company shall continue to pay the Base Salary and provide benefits described in this Agreement to the Executive, provided that the Executive continues to faithfully and diligently perform her duties under this Agreement and in accordance with Company policies.
9. Resignation of Executive. Upon any termination of the Executives employment under this Agreement, the Executive shall be deemed to have resigned from any and all offices and directorships held by the Executive in the Company and/or any of the Affiliates (as defined in Section 12(c) below).
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10. Effect of Change in Control.
(a) Subject to the Executives execution of a General Release of claims in a form satisfactory to the Company or its successor, the Company or its successor shall pay the Executive the Change in Control Benefits (as defined below) if there has been a Change in Control (as defined below) and any of the following events (each a Triggering Event) has occurred: (i) the Executives employment under this Agreement is terminated by the Company or its successor without Cause in accordance with Section 7(a)(i) at any time within twenty-four (24) months after the Change in Control, (ii) the Executive terminates her employment under this Agreement for Good Reason in accordance with Section 7(a)(v) at any time within twenty-four (24) months after the Change in Control; or (iii) upon a Change in Control under Section 10(g)(ii), the Company or its successor does not expressly assume all of the terms and conditions of this Agreement.
(b) For purposes of this Agreement, the Change in Control Benefits shall mean the following benefits:
(i) A cash payment equal to (A) two and 99/100 (2.99) times the Base Salary in effect on the date of such Change in Control, less (B) any amounts paid to the Executive under this Agreement following a Change in Control, but prior to the occurrence of a Triggering Event, payable within sixty (60) days of the Change in Control or, in the event that the cessation of the Executives employment hereunder triggers the Change in Control Benefits, payable within thirty (30) days after such cessation of employment; and
(ii) Continued receipt of all group health benefits set forth in Section 5(a) of this Agreement, until the earlier of (A) one year following the Change in Control (which period shall run concurrently with the Executives COBRA period) or (B) the commencement of comparable coverage from another employer. The provision of any one benefit by another employer shall not preclude the Executive from continuing participation in Company benefit programs provided under this Section 10(b)(ii) that are not provided by the subsequent employer. The Executive shall promptly notify the Company upon receipt of benefits from a new employer comparable to any benefit provided under this Section 10(b)(ii).
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(c) Notwithstanding anything to the contrary herein, in the event that within sixty (60) days prior to a Change in Control (i) the Executives employment under this Agreement is terminated by the Company or its successor without Cause in accordance with Section 7(a)(i), or (ii) the Executive terminates her employment under this Agreement for Good Reason in accordance with Section 7(a)(v), such termination, in either case, shall be deemed to have been made in connection with the Change in Control, such termination shall be a Triggering Event, and (x) the Executive shall be entitled to receive the Change in Control Benefits, (y) the Executive shall be entitled to be reimbursed for any COBRA premiums previously paid by the Executive, and (z) in accordance with Section 11 below, subject to the Executives execution of a General Release of claims in a form satisfactory to the Company or its successor, all stock options or other stock based compensation awarded to the Executive shall become fully vested and immediately exercisable and all stock options may be exercised by the Executive at any time within one (1) year after such Triggering Event.
(d) The Change in Control Benefits shall be in addition to the acceleration of the vesting of stock options and other stock based compensation as a result of a Triggering Event.
(e) Notwithstanding anything to the contrary contained herein, in the event it shall be determined that any compensation payment or distribution by the Company to or for the benefit of the Executive would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the Code), the Change in Control Benefits will be reduced to the extent necessary so that no excise tax will be imposed, but only if to do so would result in the Executive retaining a larger amount, on an after-tax basis, taking into account the excise and income taxes imposed on all payments made to the Executive hereunder.
(f) The Company shall pay to the Executive all reasonable legal fees and expenses incurred by the Executive in obtaining or enforcing any right or benefit provided by this Section 10, but only to the extent that the Company is determined to be liable to the Executive for breach of this Section 10 as a part of a final judgment on the merits pursuant to binding arbitration.
(g) For purposes of this Agreement, a Change in Control shall be deemed to have occurred upon the closing of any of the following transactions:
(i) if any person or group of persons acting together (other than (a) the Company or any person (A) who as of the date hereof was a director or officer of the REIT, or (B) whose shares of Common Stock of the REIT are treated as beneficially owned by any such director or officer, or (b) any institutional investor (filing reports under Section 13(g) rather than 13(d) of the Securities Exchange Act of 1934, as amended, including any employee benefit plan or employee benefit trust sponsored by the Company)), becomes a beneficial owner, directly or indirectly, of securities of the REIT representing fifty percent (50%) or more of either the then-outstanding Common Stock of the REIT or the combined voting power of the REIT then-outstanding voting securities (other than as a result of an acquisition of securities directly from the REIT);
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(ii) if the Company sells all or substantially all of the Companys assets to any person (other than a wholly-owned subsidiary of the Company formed for the purpose of changing the Companys corporate domicile);
(iii) if the Company merges or consolidates with another person as a result of which the shareholders of the REIT immediately prior to such merger or consolidation would beneficially own (directly or indirectly), immediately after such merger or consolidation, securities of the surviving entity representing less than fifty percent (50%) of the then outstanding voting securities of the surviving entity; or
(iv) if the new directors appointed to the Board during any twelve-month period constitute a majority of the members of the Board, unless (A) the directors who were in office for at least twelve (12) months prior to such twelve-month period (the Incumbent Directors) plus (B) the new directors who were recommended or appointed by a majority of the Incumbent Directors constitutes a majority of the members of the Board.
For purposes of this Section 10(g), a person includes an individual, a partnership, a corporation, an association, an unincorporated organization, a trust or any other entity.
11. Stock Awards. In the event of termination of the Executives employment under this Agreement for Cause, all stock options or other stock-based compensation awarded to the Executive shall lapse and be of no further force or effect whatsoever in accordance with the Companys equity incentive plans. If the Company terminates the Executives employment under this Agreement without Cause or if the Executive terminates her employment under this Agreement for Good Reason in accordance with Section 7(a)(v) or upon the death or permanent disability of the Executive, all stock options and other stock based compensation awarded to the Executive shall become fully vested and immediately exercisable and all stock options may be exercised by the Executive at any time within one (1) year after the Triggering Event. Upon a Triggering Event or any event described in Section 10(c) of this Agreement, all stock options or other stock-based compensation awarded to the Executive shall become fully vested and immediately exercisable and all stock options may be exercised by the Executive at any time within one (1) year after the Triggering Event. All stock options and other stock-based compensation award agreements between the Company and the Executive shall be amended to conform to the provisions of this Section 11. In the event of an inconsistency between this Section 11 and such award agreements, this Section 11 shall control.
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12. Confidential Information.
(a) The Executive acknowledges the Companys reliance on and expectation of the Executives continued commitment to performance of her duties and responsibilities related to the protection of Companys Confidential Information (defined below) and competitive business interests both during and after the term of this Agreement. The Executive further acknowledges that her position is one of considerable responsibility and requires that the Company expend time and resources to provide her the tools and Confidential Information necessary to oversee operations and grow the Companys significant portfolio of business. It is Companys intent to protect its Confidential Information, in whatever form, whether written, electronic, spoken, or facsimiled, from and against unauthorized use, disclosure, destruction or modification. Maintaining its Confidential Information in the strictest confidence is essential for the Companys continued success. The Company must also protect its reasonable competitive business interests by preventing employees and competitors from using its Confidential Information.
(b) Throughout her employment with Company, she has been and will be privy to confidential information belonging to Company in any form, whether in writing, orally, electronically, or otherwise (collectively, Confidential Information), which includes, but is not limited to, any information that is or relates to:
(i) information that is trade secret under applicable trade secret or other law;
(ii) information concerning the past or present business or affairs of the Company or Affiliates which includes, but is not limited to, historical and current financial statements, general ledgers, balance sheets and income statements; financial projections, plans, policies and budgets; accounting practices; tax returns and accountants materials; information pertaining to accounting, financial reporting and auditing; bank statements; notes; accounts payable and receivable; historical, current and projected sales; capital spending budgets and plans; business plans and strategic methods; marketing techniques and advertising plans; legal matters, including but not limited to litigation strategy and attorney-client privileged information; publications; information pertaining to prospective customers, customers, customer lists and files, vendors, contractors, business partners; joint ventures or acquisitions; pricing information; contracts; operational and/or administrative protocols, plans, or rules; human resource information including the names and backgrounds of key personnel, personnel issues, salaries, bonuses, and incentive plans; all other information regarding the operation and administration of Company or Affiliates; and all information obtained from review of Companys or Affiliates documents or property or discussions with Company or Affiliates regardless of the form of the communication;
(iii) information not available to competitors of Company or Affiliates, the use or disclosure of which might reasonably be construed to be contrary to the interests of Company or Affiliates or give other persons or entities to whom such information is disclosed a competitive advantage over Company or Affiliates; and
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(iv) all notes, analyses, compilations, studies, summaries and other material prepared by Company or Affiliates containing or based, in whole or in part, upon any information included in the above.
(c) The Executive will not at any time, for so long as any Confidential Information remains confidential or otherwise remains wholly or partially protectable, use or disclose any Confidential Information, directly or indirectly, to any person outside of Company, or any corporation owned or controlled by the Company, or under common control with the Company (the Affiliates) unless compelled by judicial process. Upon receipt of judicial process or governmental request for such information, the Executive shall immediately notify the Company and shall cooperate with the Company in efforts to limit such disclosure and shall not make such disclosure unless compelled to do so.
(d) Promptly upon the termination of this Agreement for any reason or upon Companys request at any time, the Executive (or in the event of the Executives death, her personal representative) shall return to the Company all property (whether prepared by or at the direction of the Company or the Executive) including, but not limited to, devices, company keys, passwords, security badges, hardware, software, letters, handbooks, manuals, customer lists, corporate credit card, originals and all copies of all documents, books, binders, records, materials, memoranda and other data constituting or pertaining to Confidential Information, in any form, within her possession, custody or control, including all copies of documents sent by electronic mail or otherwise to any personal computer owned or accessed by the Executive.
(e) Notwithstanding above, the Executive shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made in confidence to a Federal, State, or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law. In addition, the Executive shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made in a complaint or other document filed in a lawsuit, arbitration or other proceeding, if such filing is made under seal. If the Executive files a lawsuit for retaliation by Company for reporting a suspected violation of law, she may disclose the trade secret to her attorney and use the trade secret information in the court or arbitration proceeding, so long as the Executive files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to court or arbitral order. Nothing in this Agreement is intended to conflict with 18 U.S.C. § 1833(b) or create liability for disclosures of trade secrets that are expressly allowed by 18 U.S.C. § 1833(b).
13. Covenant Not to Compete and Non-Solicitation.
(a) The Executive will not, for a period commencing on the date of this Agreement and ending upon the expiration of twenty-four (24) months following the termination of the Executives employment under this Agreement for any reason, including, without limitation, the expiration of the term of this Agreement (the Non-competition Period), either directly or indirectly, engage in, or have an interest in or be associated with
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(whether as an officer, director, stockholder, partner, associate, employee, consultant, owner, contractor, or otherwise) any corporation, firm or enterprise which is engaged in the same business or businesses as the Company, including, without limitation, the development, ownership, leasing, management, financing or sales of manufactured housing or land lease communities, recreational vehicle resorts, camping or glamping resorts with detached dwellings, marinas, manufactured or other homes, or camping and glamping dwellings, anywhere within the United States or any other country or territory in which the Company or its subsidiaries engaged or planned to engage in any such business in the twelve (12) months preceding Executives separation of employment; provided, however, that, notwithstanding anything to the contrary herein, (A) in the event that the Company terminates the Executives employment hereunder without Cause, the Non-competition Period shall be reduced to twelve (12) months, and (B) the Executive may invest in any publicly held corporation engaged, if such investment does not exceed one percent (1%) in value of the issued and outstanding capital stock of such corporation, and the Executive does not directly or indirectly provide any services to such corporation.
(b) For a period commencing on the date of this Agreement and ending upon the expiration of the Non-competition Period, the Executive shall not, either directly or indirectly, divert, or by aid to others, do anything which would tend to divert, from the Company or any Affiliate any trade or business with any customer or supplier with whom the Executive had any contact or association during the term of the Executives employment with the Company or with any party whose identity or potential as a customer or supplier was confidential or learned by the Executive during her employment by the Company.
(c) For a period commencing on the date of this Agreement and ending upon the expiration of the Non-competition Period, the Executive shall not, either directly or indirectly, call upon, compete for, solicit for employment, hire or engage as an employee or contractor any person with whom the Executive was acquainted while employed by the Company.
(d) Notwithstanding the foregoing, other than manufactured housing communities, recreational vehicle resorts, manufactured homes, marinas or any other business or industry in which Company conducts business, the Executive shall not be prohibited from making investments in any entity engaged in the business of development, ownership, leasing, sales, management or financing of single family or multi-family housing, condominiums, townhome communities or other forms of housing so long as she is not employed by, and she does not perform any services for, any such business (other than services incidental to the oversight of her investment).
14. Reasonableness of Restrictive Covenants.
(a) The Executive acknowledges and agrees that the restrictions set forth in this Agreement, including without limitation the time period, scope and geographical restrictions in Sections 12 and 13, are fair and reasonable. The Executive recognizes that Company conducts its business nationally and internationally and that these restrictions are reasonably tailored to protect Companys legitimate, global business interests and Confidential Information. The Executive has contemplated the effect that these restrictions may have upon her following termination of employment with Company and that it will be necessary to structure her activities and operations so as not to violate this Agreement.
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(b) If the Executive violates any part of Section 13 of this Agreement during the period specified, such period will be extended for the time that the Executive is in violation of the Agreement. The purpose of this provision is to provide Company with full compliance with Section 13 for the total period specified following the Executives termination.
(c) If any court or arbitrator determines that any of the covenants, or any part of any covenant, is invalid or unenforceable, the remainder of the covenants shall not be affected and shall be given full effect, without regard to the invalid portion. If any court or arbitrator determines that any of the covenants, or any part of any covenant, is unenforceable because of its duration or geographic scope, such court or arbitrator shall have the power to reduce the duration or scope, as the case may be, and, enforce such provision in such reduced form.
(d) Sections 12 and 13 of this Agreement shall remain enforceable and shall survive the termination of the Executives employment and the termination of this Agreement, indefinitely, and shall not be deemed merged or extinguished by any act or omission, absent the specific signed written intention of the Parties to do so. The Executive agrees and understands that the remedy at law for any breach by her of Section 12 or Section 13 will be inadequate and that the damages flowing from such breach are not readily susceptible to being measured in monetary terms. Accordingly, it is acknowledged that, upon adequate proof of the Executives violation of any legally enforceable provision of Section 12 or Section 13 but without the necessity of proving actual damages, the Company shall be entitled to immediate injunctive relief and may obtain a temporary order restraining any threatened or further breach from the Oakland County Circuit Court, other circuit court with appropriate jurisdiction, or through the Arbitrator (as defined below) as set forth below (in Companys sole discretion). Nothing in this Section shall be deemed to limit the Companys remedies at law or in equity for any breach by the Executive of any of the provisions of Section 12 or Section 13 which may be pursued or availed of by the Company.
15. Arbitration. Except as permitted in Section 14 above, any and all disputes, controversies or claims of any nature whatsoever relating to, or arising out of, this Agreement or the Executives employment, whether in contract, tort, or otherwise (including, without limitation, claims of wrongful termination of employment, claims under Title VII of the Civil Rights Act, the Fair Labor Standards Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, or comparable state or federal laws, and any other laws dealing with employees rights and remedies), shall be settled by mandatory arbitration administered by the American Arbitration Association under its National Rules for the Resolution of Employment Disputes (the Rules) and the following provisions: (a) a single arbitrator (the Arbitrator), mutually agreeable to the Company and the Executive, shall preside over the arbitration and shall make all decisions with respect to the resolution of the dispute, controversy or claim between the parties; (b) in the
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event that the Company and the Executive are unable to agree on an Arbitrator within fifteen (15) days after either party has filed for arbitration in accordance with the Rules, they shall select a truly neutral arbitrator in accordance with the rules for the selection of neutral arbitrators, who shall be the Arbitrator for the purposes of this Section 15; (c) the place of arbitration shall be Southfield, Michigan unless mutually agreed otherwise; (d) judgment may be entered on any award rendered by the Arbitrator in any federal or state court having jurisdiction over the parties; (e) all fees and expenses of the Arbitrator shall be shared equally between Company and the Executive; (f) the decision of the Arbitrator shall govern and shall be conclusive and binding upon the parties; (g) the parties shall be entitled to reasonable levels of discovery in accordance with the Federal Rules of Civil Procedure or as permitted by the Arbitrator, provided, however, that the time permitted for discovery shall not exceed eight (8) weeks and each party shall be limited to two (2) depositions; and (h) this provision shall be enforceable by specific performance and/or injunctive relief, and shall constitute a basis for dismissal of any legal action brought in violation of the duty to arbitrate. The parties hereby acknowledge that it is their intent to expedite the resolution of any dispute, controversy or claim hereunder and that the Arbitrator shall schedule the timing of discovery and of the hearing consistent with that intent. Notwithstanding anything to the contrary herein, nothing contained in this Section 15 shall be construed to preclude Company from obtaining injunctive or other equitable relief from the Oakland County Circuit Court or other court with appropriate jurisdiction to secure specific performance or to otherwise prevent the Executives breach of Section 12 or Section 13 of this Agreement.
16. Notice. All notices, consents, waivers, and other communications under this Agreement must be in writing and will be deemed to have been duly given (a) if personally delivered, on the date of delivery, (b) if delivered by express courier service of national standing for next day delivery (with charges prepaid), on the business day following the date of delivery to such courier service, (c) if delivered by telecopy (with confirmation of delivery), on the date of transmission if on a business day before 5:00 p.m. local time of the recipient party (otherwise on the next succeeding business day); (d) if delivered by electronic mail upon confirmation of successful transmission or appropriate response, on the date of transmission if on a business day before 5:00 p.m. local time of the business address of the recipient party (otherwise on the next succeeding business day); and (e) if deposited in the United States mail, first-class postage prepaid, on the date of delivery, in each case, to the appropriate addresses or facsimile numbers set forth below (or to such other addresses or facsimile numbers as a party may designate by notice to the other parties in accordance with this Section 16):
If to the REIT or SCOLP:
Sun Communities, Inc.
27777 Franklin Road, Suite 200
Southfield, Michigan 48034
Fax: (248) 208-2641
Attn: Chief Executive Officer
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If to the Executive:
Karen J. Dearing
c/o Sun Communities, Inc.
27777 Franklin Road, Suite 200
Southfield, Michigan 48034
Fax: (248) 208-2644
In all events, with a copy to:
Jaffe, Raitt, Heuer & Weiss, P.C.
27777 Franklin Road, Suite 2500
Southfield, Michigan 48034
Fax: (248) 351-3082
Attn: Arthur A. Weiss
17. Cooperation in Future Matters. The Executive hereby agrees that, for a period of eighteen (18) months following her termination of employment for any reason whatsoever, she shall cooperate with the Companys reasonable requests relating to matters that pertain to the Executives employment by the Company, including, without limitation, providing information or limited consultation as to such matters, participating in legal proceedings, investigations or audits on behalf of the Company, or otherwise making herself reasonably available to the Company for other related purposes. Any such cooperation shall be performed at scheduled times taking into consideration the Executives other commitments, and the Executive shall be compensated at a reasonable hourly or per diem rate to be agreed upon by the parties to the extent such cooperation is required on more than an occasional and limited basis. The Executive shall not be required to perform such cooperation to the extent it conflicts with any requirements of exclusivity of services for another employer or otherwise, nor in any manner that in the good faith belief of the Executive would conflict with her rights under or ability to enforce this Agreement.
18. Miscellaneous.
(a) The provisions of this Agreement are severable and if any one or more provisions may be determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions and any partially unenforceable provision to the extent enforceable in any jurisdiction nevertheless shall be binding and enforceable.
(b) Neither the Company nor the Executive may make any assignment of this Agreement or any interest herein, by operation of law or otherwise, without the prior written consent of the other party; provided that the Company may assign its rights under this Agreement without the consent of the Executive in the event that the Company shall effect a reorganization, consolidate with or merge into another corporation, partnership, organization or other entity, or transfer all or substantially all of its properties or assets to any other corporation, partnership, organization or other entity. This Agreement shall inure to the benefit of and be binding upon the Company and the Executive, their respective successors, executors, administrators, heirs and permitted assigns.
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(c) The failure of either party to enforce any provision or protections of this Agreement shall not in any way be construed as a waiver of any such provision or provisions as to any future violations thereof, nor prevent that party thereafter from enforcing each and every other provision of this Agreement. The rights granted the parties herein are cumulative and the waiver of any single remedy shall not constitute a waiver of such partys right to assert all other legal remedies available to it under the circumstances.
(d) The Board shall allocate all compensation described in Sections 4, 5, 6, 8 and 10 between the REIT and SCOLP on an annual basis, after determining the services provided to each entity by the Executive for the relevant period. For tax reporting purposes, all compensation will be appropriately reported to the Executive and Federal and state taxing authorities based upon the Executives legal relationship with each entity as determined under applicable law. The Company may withhold from any amounts payable under this Agreement all federal, state, city or other taxes as the Company is required to withhold pursuant to any applicable law, regulation or ruling.
(e) This Agreement sets forth the entire agreement and understanding of the parties to it with respect to its subject matter, and supersedes all prior agreements, understandings and communications, whether written or oral, with respect to its subject matter, including, without limitation, that certain employment agreement, dated as of March 29, 2021, as amended. All prior representations or agreements regarding the subject matter of this Agreement, whether written or verbal, not expressly incorporated in it, are superseded, and no changes in or additions to this Agreement shall be recognized unless and until made in writing and signed by all parties.
(f) This Agreement shall be governed by and construed according to the laws of the State of Michigan.
(g) Captions and Section headings used herein are for convenience and are not a part of this Agreement and shall not be used in construing it.
(h) This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(i) Except as otherwise provided in Section 10(f) above, each party shall pay her or its own fees and expenses, including, without limitation, legal fees, incurred in connection with the transactions contemplated by this Agreement, including, without limitation, any fees incurred in connection with any arbitration arising out of the transactions contemplated by this Agreement.
(j) The intent of the parties is that payments and benefits under this Agreement comply with Section 409A of the Code, to the extent subject thereto, and accordingly, to the maximum extent permitted, this Agreement shall be interpreted and administered to be in compliance therewith. In the event that any provision of Agreement or any other agreement or award referenced herein is mutually agreed by the parties to be in violation of Section 409A of the Code, the parties shall cooperate reasonably to attempt to amend or modify this Agreement (or other agreement or award) in order to avoid a violation of
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Section 409A of the Code while attempting to preserve the economic intent of the applicable provision to the extent permitted by Section 409A of the Code. Notwithstanding anything contained herein to the contrary, the Executive shall not be considered to have terminated employment with the Company for purposes of any payments under this Agreement which are subject to Section 409A of the Code until the Executive would be considered to have incurred a separation from service from the Company within the meaning of Section 409A of the Code. Each amount to be paid or benefit to be provided under this Agreement shall be construed as a separate identified payment for purposes of Section 409A of the Code. Without limiting the foregoing and notwithstanding anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, amounts that would otherwise be payable and benefits that would otherwise be provided pursuant to this Agreement or any other arrangement between the Executive and the Company during the six-month period immediately following the Executives separation from service shall instead be paid on the first business day after the date that is six months following the Executives separation from service (or, if earlier, the Executives date of death). To the extent required to avoid an accelerated or additional tax under Section 409A of the Code, amounts reimbursable to the Executive under this Agreement shall be paid to the Executive on or before the last day of the year following the year in which the expense was incurred and the amount of expenses eligible for reimbursement (and in kind benefits provided to the Executive) during one year may not affect amounts reimbursable or provided in any subsequent year. The Company makes no representation that any or all of the payments described in this Agreement will be exempt from or comply with Section 409A of the Code and makes no undertaking to preclude Section 409A of the Code from applying to any such payment. For purposes of this Section 18(j), Section 409A of the Code shall include all Treasury regulations and any other guidance promulgated thereunder or published with respect thereto.
[Signatures on following page]
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IN WITNESS WHEREOF, the parties have executed this Employment Agreement effective as of the Effective Date.
REIT: | ||
SUN COMMUNITIES, INC., | ||
a Maryland corporation | ||
By: | /s/ Gary A. Shiffman | |
Name: Gary A. Shiffman | ||
Title: Chief Executive Officer | ||
SCOLP: | ||
SUN COMMUNITIES OPERATING LIMITED PARTNERSHIP, a Michigan limited partnership | ||
By: | Sun Communities, Inc., a Maryland corporation, its General Partner | |
By: /s/ Gary A. Shiffman | ||
Name: Gary A. Shiffman | ||
Title: Chief Executive Officer | ||
EXECUTIVE: | ||
/s/ Karen J. Dearing | ||
KAREN J. DEARING |
Exhibit 10.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this Agreement) is made and entered into as of April 8, 2022 but for all purposes shall become effective on May 2, 2022 (the Effective Date), by and among SUN COMMUNITIES, INC., a Maryland corporation (the REIT), SUN COMMUNITIES OPERATING LIMITED PARTNERSHIP, a Michigan limited partnership (SCOLP) and FERNANDO CASTRO-CARATINI (the Executive). As used herein, Company shall refer to the REIT and SCOLP together.
W I T N E S S E T H:
WHEREAS, SCOLP operates the business of the REIT;
WHEREAS, the REIT is the sole general partner of SCOLP;
WHEREAS, the Executive has historically provided services not only to the REIT, but also to SCOLP; and
WHEREAS, the Company desires to continue the employment of the Executive, and the Executive desires to continue to be employed by the Company, on the terms and subject to the conditions set forth below.
NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:
1. Employment.
(a) The Company agrees to employ the Executive and the Executive accepts the employment, on the terms and subject to the conditions set forth below. During the Term (defined below), the Executive shall serve as the Executive Vice President, Chief Financial Officer, Secretary and Treasurer of the REIT, and shall (i) manage the Companys Accounting and Tax Departments, (ii) manage and oversee all accounting, financial reporting, tax, budget, financial performance and analysis, debt, investor relations and capital raising activities for the Company and (iii) otherwise do and perform diligently all such services, acts and things as are customarily done and performed by such officers of companies in similar business and in size of the REIT, together with such other duties as may reasonably be requested from time to time by the REITs Chief Executive Officer or the Board of Directors of the REIT (the Board), which duties shall be consistent with the Executives positions as set forth above.
(b) For service as an officer and employee of the Company, the Executive shall be entitled to the full protection of the applicable indemnification provisions of the Articles of Incorporation and Bylaws of the REIT, as they may be amended from time to time.
2. Term of Employment.
(a) Subject to the provisions for termination provided below, the term of the Executives employment under this Agreement shall commence on the Effective Date and shall continue thereafter until the five (5) year anniversary of the Effective Date (the Initial Term); provided, however, that following the expiration of the Initial Term, the term of this Agreement shall be automatically extended for successive terms of one (1) year each thereafter (each a Renewal Term), unless either party notifies the other party in writing of its desire to terminate this Agreement at least ninety (90) days before the end of the Initial Term or the Renewal Term then in effect. The Initial Term and each Renewal Term are collectively referred to as the Term.
(b) The Executive acknowledges and agrees that the Executive is an at-will employee and that the Executives employment may be terminated, with or without cause, at the option of the Executive or the REIT.
3. Devotion to the Companys Business. The Executive shall devote his best efforts, knowledge, skill, and his entire productive time, ability and attention to the business of the Company during the Term; provided, however, the Executives expenditure of reasonable amounts of time on various charitable and other community activities, or on the Executives own personal investments and projects, shall not be deemed a breach of this Agreement so long as the amount of time so devoted does not materially impair, detract or adversely affect the performance of the Executives duties under this Agreement.
4. Compensation.
(a) During the Term, the Company shall pay or provide, as the case may be, to the Executive the compensation and other benefits and rights set forth in Sections 4, 5 and 6 of this Agreement.
(b) Base Compensation. As compensation for the services to be performed hereunder, the Company shall pay to the Executive, during his employment hereunder, an annual base salary of Five Hundred Fifty Thousand Dollars ($550,000) (the Base Salary). The Base Salary shall be payable in accordance with the Companys usual pay practices (including tax withholding), but in no event less frequently than monthly.
(c) Annual Bonus. The Executive will be eligible to receive a discretionary bonus (the Bonus) for each calendar year during the Term (each, a Bonus Year). The amount of any Bonus for any Bonus Year shall be determined by the Compensation Committee of the Board in an amount up to 130% of the aggregate Base Salary for such Bonus Year. In determining the Bonus for any Bonus Year, the Compensation Committee in its sole discretion may take into account such criteria as it deems relevant or necessary in its discretion, including, without limitation, whether the Executive fulfills any individual goals and objectives for such Bonus Year set by the Board or Compensation Committee, the Companys performance and industry factors. Any such individual and Company goals and objectives may be, but need not be, set forth in a written plan approved by the Compensation Committee before or during any Bonus Year. The determination of the Bonus shall be made by the Compensation Committee of the Board no later than March 7th of the following calendar year and any Bonus shall be paid to the Executive on or before March 15th of the following calendar year.
(d) Disability. During any period that the Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illness (the Disability Period), the Executive shall be entitled to receive, first, any amount that the Executive is eligible to receive under any disability benefit plans or programs of the Company and, second, any social security disability benefits that the Executive is eligible to receive (collectively, the Program Benefits). During the Disability Period and until his employment is terminated by the Company pursuant to Section 7(a)(iii) below, the Company shall pay to the Executive the difference, if any, between the Program Benefits received by the Executive and the amount of his full Base Salary, Bonus and other benefits at the rate in effect for such period. Any payments to the Executive under the preceding sentence shall be paid in accordance with the Companys regular payroll practices.
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(e) Clawback. Notwithstanding anything to the contrary herein, the Bonus and any other incentive compensation paid or payable to the Executive hereunder shall not be deemed fully earned and vested, and shall be reimbursed by the Executive to the Company if previously paid, to the extent such incentive compensation becomes subject to clawback pursuant to the provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act, any rules promulgated thereunder or the rules and regulations of the New York Stock Exchange. Without limiting the foregoing, the Executive accepts, adopts and agrees to be subject to the Sun Communities, Inc. Executive Compensation Clawback Policy dated July 14, 2014, as it may be amended, restated or supplemented from time to time.
5. Benefits.
(a) Insurance. The Executive shall be eligible for life, medical, dental, optometry and hospitalization insurance for himself, his spouse and eligible family members commensurate with similarly situated executive employees of Company and in accordance with plan documents and Companys policies and procedures. The Executive must satisfy all plan requirements in order to enroll or continue in any insurance benefit plans.
(b) Savings Plans. The Executive, at his election, may participate, during his employment hereunder, in all retirement plans, 401(k) plans and other savings plans of the Company generally available from time to time to other executive employees of the Company and for which the Executive qualifies under the terms of the plans (and nothing in this Agreement shall or shall be deemed to in any way affect the Executives right and benefits under any such plan except as expressly provided herein). At the discretion of the Compensation Committee of the Board, the Executive may also be entitled to participate in any equity, stock option or other employee benefit plan that is generally available to senior executives of the Company. In addition to the foregoing, the Executives participation in and benefits under any such plan shall be on the terms and subject to the conditions specified in the governing document of the particular plan. Nothing contained in this Agreement shall be construed to create any obligation on the part of the Company to establish any such plan or to maintain the existence of any such plan which may be in effect from time to time.
(c) Annual Paid Vacation. Beginning on the Effective Date of this Agreement, the Executive shall be entitled to four (4) weeks paid vacation time each year, which may be used for any purpose including vacation, sick or personal time. On each anniversary of the Effective Date during the Term, the Executive shall be entitled to four (4) weeks paid vacation time. The Executive shall not take more than fourteen (14) consecutive calendar days of vacation without the prior approval of the REITs Chief Executive Officer. Unless otherwise approved by the Chief Executive Officer of the REIT in writing, vacation time does not roll over from one year to the next. Unused vacation time shall not be paid out at the end of the year or upon termination of employment for any reason.
6. Reimbursement of Business Expenses. The Company shall reimburse the Executive for travel, entertainment and other expenses reasonably and necessarily incurred by the Executive in the performance of his duties under this Agreement. The Executive shall furnish such documentation with respect to reimbursement to be paid hereunder in accordance with Companys expense reimbursement policies.
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7. Termination of Employment.
(a) The Executives employment under this Agreement may be terminated:
(i) by either the Executive or the REIT at any time without Cause (as defined below) upon not less than sixty (60) days written notice;
(ii) by the REIT at any time for Cause, without prior notice;
(iii) by the REIT upon the Executives permanent disability (as defined below) upon not less than thirty (30) days written notice;
(iv) upon the Executives death; and
(v) by the Executive at any time for Good Reason (as defined below).
(b) For purposes hereof, for Cause shall mean: (i) a material breach of any provision of this Agreement by the Executive (if the breach is curable, it will constitute Cause only if it continues uncured for a period of twenty (20) days after Executives receipt of written notice of such breach from the Company); (ii) the Executives failure or refusal, in any material manner, to perform all lawful services required of him pursuant to this Agreement, which failure or refusal continues for more than twenty (20) days after the Executives receipt of written notice of such deficiency; (iii) the Executives commission of fraud, embezzlement or theft, or a crime constituting moral turpitude, in any case, whether or not involving Company, that in the reasonable good faith judgment of the REIT, renders the Executives continued employment harmful to the Company; (iv) the Executives misappropriation of Company assets or property, including, without limitation, obtaining reimbursement through fraudulent vouchers or expense reports; or (v) the Executives conviction or the entry of a plea of guilty or no contest by the Executive with respect to any felony or other crime that, in the reasonable good faith judgment of the REIT, adversely affects the Company or its reputation or business. The Company shall determine in its sole discretion whether Executive is terminated for Cause or has resigned with Good Reason.
(c) For purposes hereof, the Executives permanent disability shall be deemed to have occurred if the Executive, by reason of the Executives physical or mental disability or impairment which cannot be accommodated under the Americans with Disabilities Act (ADA) and which can be expected to result in death or can be expected to last for a period of not less than 6 months, (i) is unable to engage in any substantial gainful activity, or (ii) is receiving income replacement benefits for a period of not less than 6 months under an accident and health plan of the Company. The Company shall determine in its sole discretion whether the Executive is being terminated due to permanent disability.
(d) For purposes hereof, Good Reason shall mean: (i) a material breach of this Agreement by the Company that is not cured within thirty (30) days after receiving written notice from the Executive of such breach, which notice must be provided within ninety (90) days of the initial existence of the Good Reason condition, with the determination as to whether there has been a breach and whether the breach is material to be determined by the Nominating and Corporate Governance Committee of the Board in the reasonable and good faith exercise of its discretion; (ii) material diminution of, or material reduction or adverse alteration of, the Executives duties or responsibilities without the consent of the Executive, or the Companys assignment of duties, responsibilities or reporting requirements that are materially inconsistent with his
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positions or that materially expand his duties, responsibilities, or reporting requirements without the consent of the Executive; or (iii) any requirement by the Company that the Executive relocate to a principal place of business outside of the Detroit, Michigan metropolitan area. Written notice of an event constituting Good Reason must be provided to the Company by the Executive within ninety (90) days of its occurrence. The Company will have thirty (30) days to cure such occurrence, and the Executive may not terminate this Agreement due to Good Reason more than thirty (30) days following the last day of such cure period (and only if the Company has failed to cure).
8. Compensation Upon Termination or Disability.
(a) In the event that the REIT terminates the Executives employment under this Agreement without Cause pursuant to Section 7(a)(i) or if the Executive terminates this Agreement for Good Reason pursuant to Section 7(a)(v), (i) the Executive shall be entitled to Base Salary and benefits through the effective date of such termination paid in accordance with Companys normal payroll policy, (ii) the Executive shall be entitled to receive a Bonus equal to any amount for such Bonus accrued by the Company and unpaid as of the termination date, which Bonus shall be paid by the Company to the Executive within thirty (30) days of the effective date of such termination (or such later date as may be required in order to determine the amount of any Bonus being paid to the Executive but in no event later than March 15th of the calendar year following the calendar year that the Executives employment is terminated), and (iii) subject to the Executives execution of a general release of claims in a form satisfactory to the Company (a General Release), the Company shall pay the Executive monthly an amount equal to one-twelfth (1/12) of the Base Salary (at the rate that would otherwise have been payable under this Agreement) for a period of up to eighteen (18) months if the Executive fully complies with Sections 12 and 13 of this Agreement (the Severance Payment). The first monthly installment of the Severance Payment shall be paid on the Companys first payroll date after expiration of the revocation period, in accordance with the Age Discrimination in Employment Act (ADEA), as set forth in the General Release; provided, if the Company does not have sufficient time to include the first monthly installment of the Severance Payment in such first payroll date, it will be paid on the next payroll date; provided, further, that, regardless of when the Executive actually executes the General Release, if the applicable revocation period spans two calendar years, the payment of Severance Payments will not commence until the first day of a month in the second calendar year, at which time the Executive will be paid an amount equal to the aggregate amount of all payments delayed until such actual pay date, and the remaining Severance Payments not so delayed shall thereafter be provided to the Executive according to the payment schedule otherwise set forth in this Section 8(a). Notwithstanding the foregoing, the Severance Payment shall not be due the Executive if the Executive is entitled to Change in Control Benefits (as defined in Section 10 below). Upon notification by either party to the other party of the non-renewal of the Initial Term or any Renewal Term as provided in Section 2(a) above, the Executive shall not be entitled to any Severance Payments at the end of the Term.
(b) If (i) the Company terminates the Executives employment under this Agreement for Cause, or (ii) the Executive voluntarily terminates his employment hereunder, other than for Good Reason pursuant to Section 7(a)(v) hereof, the Executive shall be entitled to no further compensation or other benefits under this Agreement, except for any accrued and unpaid Base Salary and benefits through the effective date of such termination.
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(c) In the event of termination of the Executives employment under this Agreement due to the Executives permanent disability or death, (i) the Executive (or his heirs, successors and assigns in the event of his death) shall be entitled to any Base Salary and benefits through the effective date of such termination, in accordance with Section 4(d), (ii) the Executive (or his heirs, successors and assigns in the event of his death) shall be entitled to receive a Bonus equal to any amount for such Bonus accrued by the Company and unpaid as of the termination date, which Bonus shall be paid by the Company to the Executive or his successors and assigns, as appropriate, within thirty (30) days of the effective date of such termination (or such later date as may be required in order to determine the amount of any Bonus being paid to the Executive but in no event later than March 15th of the calendar year following the calendar year that the Executives employment is terminated), and (iii) subject to the Executives (or, in the event of death, his heirs, successors or assigns) execution of a General Release and so long as the Executive fully complies with Sections 12 and 13 of this Agreement, the Company shall pay the Executive (or his heirs, successors and assigns in the event of his death) monthly during the twenty four (24) months following the termination date the difference, if any, between the Program Benefits received by the Executive during such period and an amount equal to one-twelfth (1/12) of the Base Salary (at the rate that would otherwise have been payable under this Agreement) during such period (the Disability Payment). The first monthly installment of the Disability Payment shall be paid on the Companys first payroll date after the expiration of the revocation period, in accordance with the Age Discrimination in Employment Act (ADEA), as set forth in the General Release; provided, if the Company does not have sufficient time to include the first monthly installment of the Disability Payment in such first payroll date, it will be paid on the next payroll date. The Executive agrees to cooperate in any reasonable requirement to undertake a medical physical examination as may be reasonably requested by an insurance carrier in the event that the Company decides to obtain additional death or disability insurance coverage on the Executive.
(d) Notwithstanding anything to the contrary in this Section 8, the Companys obligation to pay, and the Executives right to receive, any Bonus, Severance Payment or Disability Payment under this Section 8, shall terminate upon the Executives breach of any provision of Section 12 or Section 13 hereof. In addition, the Executive shall promptly return to the Company any Bonus, Severance Payment, or Disability Payment, upon the Executives breach of any provision of Section 12 or Section 13 hereof.
(e) If during the Notice Period this Agreement is terminated for any reason that would otherwise entitle the Executive to Severance Payments or Disability Payments in accordance with this Section 8, the Company shall be obligated to pay such Severance Payments and/or Disability Payments only through the end of the Notice Period, and the aggregate amount of Severance Payments and/or aggregate amount of Disability Payments shall be reduced accordingly.
(f) If either party notifies the other party of the non-renewal of the Initial Term or any Renewal Term as provided in Section 2(a) above, from the date of such notice through termination of employment or the end of the Term, as applicable (the Notice Period), the Company shall continue to pay the Base Salary and provide benefits described in this Agreement to the Executive, provided that the Executive continues to faithfully and diligently perform his duties under this Agreement and in accordance with Company policies.
9. Resignation of Executive. Upon any termination of the Executives employment under this Agreement, the Executive shall be deemed to have resigned from any and all offices and directorships held by the Executive in the Company and/or any of the Affiliates (as defined in Section 12 below).
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10. Effect of Change in Control.
(a) Subject to the Executives execution of a General Release of claims in a form satisfactory to the Company or its successor, the Company or its successor shall pay the Executive the Change in Control Benefits (as defined below) if there has been a Change in Control (as defined below) and any of the following events (each a Triggering Event) has occurred: (i) the Executives employment under this Agreement is terminated by the Company or its successor without Cause in accordance with Section 7(a)(i) at any time within twenty-four (24) months after the Change in Control, (ii) the Executive terminates his employment under this Agreement for Good Reason in accordance with Section 7(a)(v) at any time within twenty-four (24) months after the Change in Control; or (iii) upon a Change in Control under Section 10(g)(ii), the Company or its successor does not expressly assume all of the terms and conditions of this Agreement.
(b) For purposes of this Agreement, the Change in Control Benefits shall mean the following benefits:
(i) A cash payment equal to (A) two and 99/100 (2.99) times the Base Salary in effect on the date of such Change in Control, less (B) any amounts paid to the Executive under this Agreement following a Change in Control, but prior to the occurrence of a Triggering Event, payable within sixty (60) days of the Change in Control or, in the event that the cessation of the Executives employment hereunder triggers the Change in Control Benefits, payable within thirty (30) days after such cessation of employment; and
(ii) Continued receipt of all group health benefits set forth in Section 5(a) of this Agreement, until the earlier of (A) one year following the Change in Control (which period shall run concurrently with the Executives COBRA period) or (B) the commencement of comparable coverage from another employer. The provision of any one benefit by another employer shall not preclude the Executive from continuing participation in Company benefit programs provided under this Section 10(b)(ii) that are not provided by the subsequent employer. The Executive shall promptly notify the Company upon receipt of benefits from a new employer comparable to any benefit provided under this Section 10(b)(ii).
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(c) Notwithstanding anything to the contrary herein, in the event that within sixty (60) days prior to a Change in Control (i) the Executives employment under this Agreement is terminated by the Company or its successor without Cause in accordance with Section 7(a)(i), or (ii) the Executive terminates his employment under this Agreement for Good Reason in accordance with Section 7(a)(v), such termination, in either case, shall be deemed to have been made in connection with the Change in Control, such termination shall be a Triggering Event, and (x) the Executive shall be entitled to receive the Change in Control Benefits, (y) the Executive shall be entitled to be reimbursed for any COBRA premiums previously paid by the Executive, and (z) in accordance with Section 11 below, subject to the Executives execution of a General Release of claims in a form satisfactory to the Company or its successor, all stock options or other stock based compensation awarded to the Executive shall become fully vested and immediately exercisable and all stock options may be exercised by the Executive at any time within one (1) year after such Triggering Event.
(d) The Change in Control Benefits shall be in addition to the acceleration of the vesting of stock options and other stock based compensation as a result of a Triggering Event.
(e) Notwithstanding anything to the contrary contained herein, in the event it shall be determined that any compensation payment or distribution by the Company to or for the benefit of the Executive would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the Code), the Change in Control Benefits will be reduced to the extent necessary so that no excise tax will be imposed, but only if to do so would result in the Executive retaining a larger amount, on an after-tax basis, taking into account the excise and income taxes imposed on all payments made to the Executive hereunder.
(f) The Company shall pay to the Executive all reasonable legal fees and expenses incurred by the Executive in obtaining or enforcing any right or benefit provided by this Section 10, but only to the extent that the Company is determined to be liable to the Executive for breach of this Section 10 as a part of a final judgment on the merits pursuant to binding arbitration.
(g) For purposes of this Agreement, a Change in Control shall be deemed to have occurred upon the closing of any of the following transactions:
(i) if any person or group of persons acting together (other than (a) the Company or any person (A) who as of the date hereof was a director or officer of the REIT, or (B) whose shares of Common Stock of the REIT are treated as beneficially owned by any such director or officer, or (b) any institutional investor (filing reports under Section 13(g) rather than 13(d) of the Securities Exchange Act of 1934, as amended, including any employee benefit plan or employee benefit trust sponsored by the Company)), becomes a beneficial owner, directly or indirectly, of securities of the REIT representing fifty percent (50%) or more of either the then-outstanding Common Stock of the REIT or the combined voting power of the REIT then-outstanding voting securities (other than as a result of an acquisition of securities directly from the REIT);
(ii) if the Company sells all or substantially all of the Companys assets to any person (other than a wholly-owned subsidiary of the Company formed for the purpose of changing the Companys corporate domicile);
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(iii) if the Company merges or consolidates with another person as a result of which the shareholders of the REIT immediately prior to such merger or consolidation would beneficially own (directly or indirectly), immediately after such merger or consolidation, securities of the surviving entity representing less than fifty percent (50%) of the then outstanding voting securities of the surviving entity; or
(iv) if the new directors appointed to the Board during any twelve-month period constitute a majority of the members of the Board, unless (A) the directors who were in office for at least twelve (12) months prior to such twelve-month period (the Incumbent Directors) plus (B) the new directors who were recommended or appointed by a majority of the Incumbent Directors constitutes a majority of the members of the Board.
For purposes of this Section 10(g), a person includes an individual, a partnership, a corporation, an association, an unincorporated organization, a trust or any other entity.
11. Stock Awards. In the event of termination of the Executives employment under this Agreement for Cause, all stock options or other stock-based compensation awarded to the Executive shall lapse and be of no further force or effect whatsoever in accordance with the Companys equity incentive plans. If the Company terminates the Executives employment under this Agreement without Cause or if the Executive terminates his employment under this Agreement for Good Reason in accordance with Section 7(a)(v) or upon the death or permanent disability of the Executive, all stock options and other stock based compensation awarded to the Executive shall become fully vested and immediately exercisable and all stock options may be exercised by the Executive at any time within one (1) year after the Triggering Event. Upon a Triggering Event or any event described in Section 10(c) of this Agreement, all stock options or other stock-based compensation awarded to the Executive shall become fully vested and immediately exercisable and all stock options may be exercised by the Executive at any time within one (1) year after the Triggering Event. All stock options and other stock-based compensation award agreements between the Company and the Executive shall be amended to conform to the provisions of this Section 11. In the event of an inconsistency between this Section 11 and such award agreements, this Section 11 shall control.
12. Confidential Information.
(a) The Executive acknowledges the Companys reliance on and expectation of the Executives continued commitment to performance of his duties and responsibilities related to the protection of Companys Confidential Information (defined below) and competitive business interests both during and after the term of this Agreement. The Executive further acknowledges that his position is one of considerable responsibility and requires that the Company expend time and resources to provide him the tools and Confidential Information necessary to oversee operations and grow the Companys significant portfolio of business. It is Companys intent to protect its Confidential Information, in whatever form, whether written, electronic, spoken, or facsimiled, from and against unauthorized use, disclosure, destruction or modification. Maintaining its Confidential Information in the strictest confidence is essential for the Companys continued success. The Company must also protect its reasonable competitive business interests by preventing employees and competitors from using its Confidential Information.
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(b) Throughout his employment with Company, he has been and will be privy to confidential information belonging to Company in any form, whether in writing, orally, electronically, or otherwise (collectively, Confidential Information), which includes, but is not limited to, any information that is or relates to:
(i) information that is trade secret under applicable trade secret or other law;
(ii) information concerning the past or present business or affairs of the Company or Affiliates which includes, but is not limited to, historical and current financial statements, general ledgers, balance sheets and income statements; financial projections, plans, policies and budgets; accounting practices; tax returns and accountants materials; information pertaining to accounting, financial reporting and auditing; bank statements; notes; accounts payable and receivable; historical, current and projected sales; capital spending budgets and plans; business plans and strategic methods; marketing techniques and advertising plans; legal matters, including but not limited to litigation strategy and attorney-client privileged information; publications; information pertaining to prospective customers, customers, customer lists and files, vendors, contractors, business partners; joint ventures or acquisitions; pricing information; contracts; operational and/or administrative protocols, plans, or rules; human resource information including the names and backgrounds of key personnel, personnel issues, salaries, bonuses, and incentive plans; all other information regarding the operation and administration of Company or Affiliates; and all information obtained from review of Companys or Affiliates documents or property or discussions with Company or Affiliates regardless of the form of the communication;
(iii) information not available to competitors of Company or Affiliates, the use or disclosure of which might reasonably be construed to be contrary to the interests of Company or Affiliates or give other persons or entities to whom such information is disclosed a competitive advantage over Company or Affiliates; and
(iv) all notes, analyses, compilations, studies, summaries and other material prepared by Company or Affiliates containing or based, in whole or in part, upon any information included in the above (collectively, the Confidential Information).
(c) The Executive will not at any time, for so long as any Confidential Information remains confidential or otherwise remains wholly or partially protectable, use or disclose any Confidential Information, directly or indirectly, to any person outside of Company, or any corporation owned or controlled by the Company, or under common control with the Company (the Affiliates) unless compelled by judicial process. Upon receipt of judicial process or governmental request for such information, the Executive shall immediately notify the Company and shall cooperate with the Company in efforts to limit such disclosure and shall not make such disclosure unless compelled to do so.
(d) Promptly upon the termination of this Agreement for any reason or upon Companys request at any time, the Executive (or in the event of the Executives death, his personal representative) shall return to the Company all property (whether prepared by or at the direction of the Company or the Executive) including, but not limited to, devices, company keys, passwords, security badges, hardware, software, letters, handbooks, manuals, customer lists, corporate credit card, originals and all copies of all documents, books, binders, records, materials, memoranda and other data constituting or pertaining to Confidential Information, in any form, within his possession, custody or control, including all copies of documents sent by electronic mail or otherwise to any personal computer owned or accessed by the Executive.
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(e) Notwithstanding above, the Executive shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made in confidence to a Federal, State, or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law. In addition, the Executive shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made in a complaint or other document filed in a lawsuit, arbitration or other proceeding, if such filing is made under seal. If the Executive files a lawsuit for retaliation by Company for reporting a suspected violation of law, he may disclose the trade secret to his attorney and use the trade secret information in the court or arbitration proceeding, so long as the Executive files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to court or arbitral order. Nothing in this Agreement is intended to conflict with 18 U.S.C. § 1833(b) or create liability for disclosures of trade secrets that are expressly allowed by 18 U.S.C. § 1833(b).
13. Covenant Not to Compete and Non-Solicitation.
(a) The Executive will not, for a period commencing on Effective Date and ending upon the expiration of twenty-four (24) months following the termination of the Executives employment under this Agreement for any reason, including, without limitation, the expiration of the term of this Agreement (the Non-competition Period), either directly or indirectly, engage in, or have an interest in or be associated with (whether as an officer, director, stockholder, partner, associate, employee, consultant, owner, contractor, or otherwise) any corporation, firm or enterprise which is engaged in the same business or businesses as the Company, including, without limitation, the development, ownership, leasing, management, financing or sales of manufactured housing or land lease communities, recreational vehicle resorts, camping or glamping resorts with detached dwellings, marinas, manufactured or other homes, or camping and glamping dwellings, anywhere within the United States or any other country or territory in which the Company or its subsidiaries engaged or planned to engage in any such business in the twelve (12) months preceding Executives separation of employment; provided, however, that, notwithstanding anything to the contrary herein, (A) in the event that the Company terminates the Executives employment hereunder without Cause, the Non-competition Period shall be reduced to twelve (12) months, and (B) the Executive may invest in any publicly held corporation engaged, if such investment does not exceed one percent (1%) in value of the issued and outstanding capital stock of such corporation, and the Executive does not directly or indirectly provide any services to such corporation.
(b) For a period commencing on the date of this Agreement and ending upon the expiration of the Non-competition Period, the Executive shall not, either directly or indirectly, divert, or by aid to others, do anything which would tend to divert, from the Company or any Affiliate any trade or business with any customer or supplier with whom the Executive had any contact or association during the term of the Executives employment with the Company or with any party whose identity or potential as a customer or supplier was confidential or learned by the Executive during his employment by the Company.
(c) For a period commencing on the date of this Agreement and ending upon the expiration of the Non-competition Period, the Executive shall not, either directly or indirectly, call upon, compete for, solicit for employment, hire or engage as an employee or contractor any person with whom the Executive was acquainted while employed by the Company.
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(d) Notwithstanding the foregoing, other than manufactured housing communities, recreational vehicle resorts, manufactured homes, marinas or any other business or industry in which Company conducts business, the Executive shall not be prohibited from making investments in any entity engaged in the business of development, ownership, leasing, sales, management or financing of single family or multi-family housing, condominiums, townhome communities or other forms of housing so long as he is not employed by, and he does not perform any services for, any such business (other than services incidental to the oversight of his investment).
14. Reasonableness of Restrictive Covenants.
(a) The Executive acknowledges and agrees that the restrictions set forth in this Agreement, including without limitation the time period, scope and geographical restrictions in Sections 12 and 13, are fair and reasonable. The Executive recognizes that Company conducts its business nationally and internationally and that these restrictions are reasonably tailored to protect Companys legitimate, global business interests and Confidential Information. The Executive has contemplated the effect that these restrictions may have upon him following termination of employment with Company and that it will be necessary to structure his activities and operations so as not to violate this Agreement.
(b) If the Executive violates any part of Section 13 of this Agreement during the period specified, such period will be extended for the time that the Executive is in violation of the Agreement. The purpose of this provision is to provide Company with full compliance with Section 13 for the total period specified following the Executives termination.
(c) If any court or arbitrator determines that any of the covenants, or any part of any covenant, is invalid or unenforceable, the remainder of the covenants shall not be affected and shall be given full effect, without regard to the invalid portion. If any court or arbitrator determines that any of the covenants, or any part of any covenant, is unenforceable because of its duration or geographic scope, such court or arbitrator shall have the power to reduce the duration or scope, as the case may be, and, enforce such provision in such reduced form.
(d) Sections 12 and 13 of this Agreement shall remain enforceable and shall survive the termination of the Executives employment and the termination of this Agreement, indefinitely, and shall not be deemed merged or extinguished by any act or omission, absent the specific signed written intention of the Parties to do so. The Executive agrees and understands that the remedy at law for any breach by him of Section 12 or Section 13 will be inadequate and that the damages flowing from such breach are not readily susceptible to being measured in monetary terms. Accordingly, it is acknowledged that, upon adequate proof of the Executives violation of any legally enforceable provision of Section 12 or Section 13 but without the necessity of proving actual damages, the Company shall be entitled to immediate injunctive relief and may obtain a temporary order restraining any threatened or further breach from the Oakland County Circuit Court, other circuit court with appropriate jurisdiction, or through the Arbitrator (as defined below) as set forth below (in Companys sole discretion). Nothing in this Section shall be deemed to limit the Companys remedies at law or in equity for any breach by the Executive of any of the provisions of Section 12 or Section 13 which may be pursued or availed of by the Company.
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135. Arbitration. Except as permitted in Section 14 above, any and all disputes, controversies or claims of any nature whatsoever relating to, or arising out of, this Agreement or the Executives employment, whether in contract, tort, or otherwise (including, without limitation, claims of wrongful termination of employment, claims under Title VII of the Civil Rights Act, the Fair Labor Standards Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, or comparable state or federal laws, and any other laws dealing with employees rights and remedies), shall be settled by mandatory arbitration administered by the American Arbitration Association under its National Rules for the Resolution of Employment Disputes (the Rules) and the following provisions: (a) a single arbitrator (the Arbitrator), mutually agreeable to the Company and the Executive, shall preside over the arbitration and shall make all decisions with respect to the resolution of the dispute, controversy or claim between the parties; (b) in the event that the Company and the Executive are unable to agree on an Arbitrator within fifteen (15) days after either party has filed for arbitration in accordance with the Rules, they shall select a truly neutral arbitrator in accordance with the rules for the selection of neutral arbitrators, who shall be the Arbitrator for the purposes of this Section 15; (c) the place of arbitration shall be Southfield, Michigan unless mutually agreed otherwise; (d) judgment may be entered on any award rendered by the Arbitrator in any federal or state court having jurisdiction over the parties; (e) all fees and expenses of the Arbitrator shall be shared equally between Company and the Executive; (f) the decision of the Arbitrator shall govern and shall be conclusive and binding upon the parties; (g) the parties shall be entitled to reasonable levels of discovery in accordance with the Federal Rules of Civil Procedure or as permitted by the Arbitrator, provided, however, that the time permitted for discovery shall not exceed eight (8) weeks and each party shall be limited to two (2) depositions; and (h) this provision shall be enforceable by specific performance and/or injunctive relief, and shall constitute a basis for dismissal of any legal action brought in violation of the duty to arbitrate. The parties hereby acknowledge that it is their intent to expedite the resolution of any dispute, controversy or claim hereunder and that the Arbitrator shall schedule the timing of discovery and of the hearing consistent with that intent. Notwithstanding anything to the contrary herein, nothing contained in this Section 15 shall be construed to preclude Company from obtaining injunctive or other equitable relief from the Oakland County Circuit Court or other court with appropriate jurisdiction to secure specific performance or to otherwise prevent the Executives breach of Section 12 or Section 13 of this Agreement.
16. Notice. All notices, consents, waivers, and other communications under this Agreement must be in writing and will be deemed to have been duly given (a) if personally delivered, on the date of delivery, (b) if delivered by express courier service of national standing for next day delivery (with charges prepaid), on the business day following the date of delivery to such courier service, (c) if delivered by telecopy (with confirmation of delivery), on the date of transmission if on a business day before 5:00 p.m. local time of the recipient party (otherwise on the next succeeding business day); (d) if delivered by electronic mail upon confirmation of successful transmission or appropriate response, on the date of transmission if on a business day before 5:00 p.m. local time of the business address of the recipient party (otherwise on the next succeeding business day); and (e) if deposited in the United States mail, first-class postage prepaid, on the date of delivery, in each case, to the appropriate addresses or facsimile numbers set forth below (or to such other addresses or facsimile numbers as a party may designate by notice to the other parties in accordance with this Section 16):
If to the REIT or SCOLP:
Sun Communities, Inc.
27777 Franklin Road, Suite 200
Southfield, Michigan 48034
Fax: (248) 208-2641
Attn: Chief Executive Officer
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If to the Executive:
Fernando Castro-Caratini
c/o Sun Communities, Inc.
27777 Franklin Road, Suite 200
Southfield, Michigan 48034
Fax: (248) 208-2644
In all events, with a copy to:
Jaffe, Raitt, Heuer & Weiss, P.C.
27777 Franklin Road, Suite 2500
Southfield, Michigan 48034
Fax: (248) 351-3082
Attn: Arthur A. Weiss
17. Cooperation in Future Matters. The Executive hereby agrees that, for a period of eighteen (18) months following his termination of employment for any reason whatsoever, he shall cooperate with the Companys reasonable requests relating to matters that pertain to the Executives employment by the Company, including, without limitation, providing information or limited consultation as to such matters, participating in legal proceedings, investigations or audits on behalf of the Company, or otherwise making himself reasonably available to the Company for other related purposes. Any such cooperation shall be performed at scheduled times taking into consideration the Executives other commitments, and the Executive shall be compensated at a reasonable hourly or per diem rate to be agreed upon by the parties to the extent such cooperation is required on more than an occasional and limited basis. The Executive shall not be required to perform such cooperation to the extent it conflicts with any requirements of exclusivity of services for another employer or otherwise, nor in any manner that in the good faith belief of the Executive would conflict with his rights under or ability to enforce this Agreement.
18. Miscellaneous.
(a) The provisions of this Agreement are severable and if any one or more provisions may be determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions and any partially unenforceable provision to the extent enforceable in any jurisdiction nevertheless shall be binding and enforceable.
(b) Neither the Company nor the Executive may make any assignment of this Agreement or any interest herein, by operation of law or otherwise, without the prior written consent of the other party; provided that the Company may assign its rights under this Agreement without the consent of the Executive in the event that the Company shall effect a reorganization, consolidate with or merge into another corporation, partnership, organization or other entity, or transfer all or substantially all of its properties or assets to any other corporation, partnership, organization or other entity. This Agreement shall inure to the benefit of and be binding upon the Company and the Executive, their respective successors, executors, administrators, heirs and permitted assigns.
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(c) The failure of either party to enforce any provision or protections of this Agreement shall not in any way be construed as a waiver of any such provision or provisions as to any future violations thereof, nor prevent that party thereafter from enforcing each and every other provision of this Agreement. The rights granted the parties herein are cumulative and the waiver of any single remedy shall not constitute a waiver of such partys right to assert all other legal remedies available to it under the circumstances.
(d) The Board shall allocate all compensation described in Sections 4, 5, 6, 8 and 10 between the REIT and SCOLP on an annual basis, after determining the services provided to each entity by the Executive for the relevant period. For tax reporting purposes, all compensation will be appropriately reported to the Executive and Federal and state taxing authorities based upon the Executives legal relationship with each entity as determined under applicable law. The Company may withhold from any amounts payable under this Agreement all federal, state, city or other taxes as the Company is required to withhold pursuant to any applicable law, regulation or ruling.
(e) This Agreement sets forth the entire agreement and understanding of the parties to it with respect to its subject matter, and supersedes all prior agreements, understandings and communications, whether written or oral, with respect to its subject matter. All prior representations or agreements regarding the subject matter of this Agreement, whether written or verbal, not expressly incorporated in it, are superseded, and no changes in or additions to this Agreement shall be recognized unless and until made in writing and signed by all parties.
(f) This Agreement shall be governed by and construed according to the laws of the State of Michigan.
(g) Captions and Section headings used herein are for convenience and are not a part of this Agreement and shall not be used in construing it.
(h) This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(i) Except as otherwise provided in Section 10(f) above, each party shall pay his or its own fees and expenses, including, without limitation, legal fees, incurred in connection with the transactions contemplated by this Agreement, including, without limitation, any fees incurred in connection with any arbitration arising out of the transactions contemplated by this Agreement.
(j) The intent of the parties is that payments and benefits under this Agreement comply with Section 409A of the Code, to the extent subject thereto, and accordingly, to the maximum extent permitted, this Agreement shall be interpreted and administered to be in compliance therewith. In the event that any provision of Agreement or any other agreement or award referenced herein is mutually agreed by the parties to be in violation of Section 409A of the Code, the parties shall cooperate reasonably to attempt to amend or modify this Agreement (or other agreement or award) in order to avoid a violation of Section 409A of the Code while attempting to preserve the economic intent of the applicable provision to the extent permitted by Section 409A of the Code. Notwithstanding anything contained herein to the contrary, the Executive shall not be considered to have terminated employment with the Company for purposes of any payments under this Agreement which are subject to Section 409A of the Code until the Executive would be considered to have incurred a separation from service from the Company within the meaning of Section 409A of the Code. Each amount to be paid or benefit to be provided under this Agreement shall be construed as a separate identified payment for purposes of Section 409A of the Code. Without limiting the foregoing and notwithstanding anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, amounts that would otherwise be payable and benefits that would otherwise be provided pursuant to this Agreement or any other arrangement between the Executive and the Company during the six-month period immediately following the Executives separation from service shall instead be paid on the first business day after the date that is six months following the Executives separation from service (or, if earlier, the Executives date of death). To the extent required to avoid an accelerated or additional tax under Section 409A of the Code, amounts reimbursable to the Executive under this Agreement shall be paid to the Executive on or before the last day of the year following the year in which the expense was incurred and the amount of expenses eligible for reimbursement (and in kind benefits provided to the Executive) during one year may not affect amounts reimbursable or provided in any subsequent year. The Company makes no representation that any or all of the payments described in this Agreement will be exempt from or comply with Section 409A of the Code and makes no undertaking to preclude Section 409A of the Code from applying to any such payment. For purposes of this Section 18(j), Section 409A of the Code shall include all Treasury regulations and any other guidance promulgated thereunder or published with respect thereto.
[Signatures on following page]
15
IN WITNESS WHEREOF, the parties have executed this Employment Agreement effective as of the Effective Date.
REIT: | ||||
SUN COMMUNITIES, INC., | ||||
a Maryland corporation | ||||
By: | /s/ Gary A. Shiffman | |||
Name: | Gary A. Shiffman | |||
Title: | Chief Executive Officer | |||
SCOLP: | ||||
SUN COMMUNITIES OPERATING LIMITED | ||||
PARTNERSHIP, a Michigan limited partnership | ||||
By: | Sun Communities, Inc., a Maryland | |||
corporation, its General Partner | ||||
By: | /s/ Gary A. Shiffman | |||
Name: | Gary A. Shiffman | |||
Title: | Chief Executive Officer | |||
EXECUTIVE: | ||||
/s/ Fernando Castro-Caratini | ||||
FERNANDO CASTRO-CARATINI |
Exhibit 10.4
UK SUB-PLAN
under the
SUN COMMUNITIES, INC. 2015 EQUITY INCENTIVE PLAN
April 6, 2022
Sun Communities, Inc. (the Company) has established this Sub-Plan for the United Kingdom (the UK Sub-Plan) under the Companys 2015 Equity Incentive Plan (as amended from time to time, the Plan), as of the date above, pursuant to a resolution adopted by the Board of the Plan and in accordance with the powers granted to the Board under the Plan.
Purpose. The primary purpose of the UK Sub-Plan is to amend those provisions of the Plan which are required to be amended in order for Awards under the Plan, and communications concerning those Awards, to be exempt from provisions of the United Kingdom Financial Services and Markets Act 2000.
Application. The UK Sub-Plan shall be used solely to grant Awards to employees of the Company or any member of the same group as the Company who are resident and provide services in the United Kingdom (UK Employees). No other awards under the Plan shall be subject to the provisions of the UK Sub-Plan. The Company retains discretion to grant awards to UK Employees under the Plan outside of the UK Sub-Plan. (The term group in relation to the Company shall bear the meaning given to such term in section 421 of the United Kingdom Financial Services and Markets Act 2000.)
Restricted Delivery of Awards. Payments of benefits under the UK Sub-Plan shall be made only in Stock or such other securities of the Company that may arise from such Stock under the adjustment provisions of the Plan.
Withholding of Taxes. All Awards will be subject to tax withholding as described in the Plan but, for the purposes of the UK Sub-Plan, references to applicable withholding taxes shall be read and construed as including, without limitation, United Kingdom income tax, primary class 1 (employees) national insurance contributions and health and social care levy for which the UK Employees employer is liable to account on behalf of the UK Employee and, if so stated and evidenced in the relevant Award agreement, secondary class 1 (employers) national insurance contributions for which the UK Employees employer is liable to account.
Restricted Transfer of Rights. The persons to whom rights under Awards under the UK Sub-Plan may be assigned or transferred, whether by will or the laws of descent and distribution or under any provision of the Plan or otherwise, shall be limited to a UK Employees children and step-children under the age of eighteen, spouses and surviving spouses and civil partners (within the meaning of the United Kingdom Civil Partnerships Act 2004) and surviving partners.
Incorporation of Plan Provisions. The provisions of the Plan shall apply to all Awards made under the UK Sub-Plan by reference to the Plan and those provisions shall accordingly be deemed to be incorporated herein, save as varied by the terms of this Sub-Plan, provided, that the UK Sub-Plan and/or modification of the UK Sub-Plan shall not: (i) increase the share limitations contained in Articles IV and VI of the Plan; (ii) materially expand the class of Participants contained in Article V of the Plan; or (iii) result in any other change to the Plan that would materially increase the potential for dilution of stockholders of the Company. Words and expressions defined in the Plan shall have the same meaning when used in the UK Sub-Plan, unless otherwise stated herein.
Document and Entity Information |
Apr. 07, 2022 |
---|---|
Cover [Abstract] | |
Entity Registrant Name | SUN COMMUNITIES INC |
Amendment Flag | false |
Entity Central Index Key | 0000912593 |
Document Type | 8-K |
Document Period End Date | Apr. 07, 2022 |
Entity Incorporation State Country Code | MD |
Entity File Number | 1-12616 |
Entity Tax Identification Number | 38-2730780 |
Entity Address, Address Line One | 27777 Franklin Rd. |
Entity Address, Address Line Two | Suite 200 |
Entity Address, City or Town | Southfield |
Entity Address, State or Province | MI |
Entity Address, Postal Zip Code | 48034 |
City Area Code | (248) |
Local Phone Number | 208-2500 |
Written Communications | false |
Soliciting Material | false |
Pre Commencement Tender Offer | false |
Pre Commencement Issuer Tender Offer | false |
Security 12b Title | Common Stock, $0.01 par value |
Trading Symbol | SUI |
Security Exchange Name | NYSE |
Entity Emerging Growth Company | false |
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