EIGHTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND JOINDER
Exhibit 10.1
EXECUTION VERSION
EIGHTH AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND JOINDER
This EIGHTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND JOINDER (herein, this “Amendment”) is entered into as of September 20, 2022, among CTO Realty Growth, Inc., a Maryland corporation, and together with its successors and assigns (the “Borrower”), the Guarantors party hereto, the Lenders party hereto and Bank of Montreal, as Administrative Agent (the “Administrative Agent”), L/C Issuer and Swing Line Lender.
PRELIMINARY STATEMENTS
A. The Borrower, the Guarantors party thereto (the “Guarantors”), the financial institutions party thereto (the “Lenders”), and the Administrative Agent entered into that certain Second Amended and Restated Credit Agreement, dated as of September 7, 2017, as amended by the First Amendment to Second Amended and Restated Credit Agreement dated as of May 14, 2018, as amended by the Second Amendment to Second Amended and Restated Credit Agreement dated as of May 24, 2019, as amended by the Third Amendment to Second Amended and Restated Credit Agreement dated as of November 26, 2019, as amended by the Fourth Amendment to Second Amended and Restated Credit Agreement dated as of July 1, 2020, as amended by the Fifth Amendment to Second Amended and Restated Credit Agreement and Consent dated as of November 12, 2020, as amended by the Sixth Amendment to Second Amended and Restated Credit Agreement and Joinder dated as of March 10, 2021, and as amended by the Seventh Amendment to Second Amended and Restated Credit Agreement and Xxxxxxx dated as of November 5, 2021 (such Second Amended and Restated Credit Agreement, as heretofore amended, and as the same may be amended, restated, supplemented or otherwise modified, including by this Amendment, the “Credit Agreement”). All capitalized terms used herein without definition shall have the same meanings herein as such terms have in the Credit Agreement.
B. The Borrower has requested that the Lenders (i) make certain amendments related to the inclusion of a sustainability component whereby pricing can be adjusted upon the Borrower’s achievement of certain sustainability targets, (ii) increase the Term Loan Commitment by $100,000,000 through new 2028 Term Loan Commitments (the “2028 Term Loan Commitments”) and, in connection therewith, the Borrower has requested that PNC Bank, National Association (“PNC”) be joined as a Term Loan Lender under the Credit Agreement, (iii) increase the Revolving Credit Commitments (the “Revolver Increase”) and outstanding Revolving Loans of KeyBank National Association, Xxxxxxx Xxxxx Bank, Synovus Bank and Truist Bank and, in connection therewith, the Borrower has requested that PNC and Regions Bank (“Regions”, together with PNC, the “Additional Lenders”) be joined as Revolving Lenders, with a Revolving Credit Commitment, under the Credit Agreement, and (iv) release the Pledge Collateral (as defined below) and terminate the Obligations granted under that the Pledge Agreement (as defined below).
C. The Borrower, the Administrative Agent and the Lenders party hereto propose to amend the Credit Agreement to, among other things, incorporate sustainability pricing adjustments, provide for the 2028 Term Loan Commitments, the Revolver Increase, the joinder of the Additional Lenders and the release of Collateral on the terms and conditions set forth in this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
SECTION 1. JOINDER OF ADDITIONAL LENDERS.
1.1 Upon the satisfaction of the conditions precedent set forth in Section 6 below, each Additional Xxxxxx agrees to become a Lender pursuant to and in accordance with the Credit Agreement and to be bound by the terms of the Credit Agreement and the other Loan Documents as a Lender thereunder and have the rights and obligations of a Lender thereunder.
1.2. Each Additional Lender: (a) confirms that it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered to the Lenders pursuant to Section 8.5(a) and (c) thereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Amendment; (b) agrees that it will, independently and without reliance upon the Administrative Agent, or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement, (c) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Credit Agreement and the other Loan Documents as are delegated to the Administrative Agent by the terms thereof, together with such powers and discretion as are reasonably incidental thereto; (d) agrees that it will perform in accordance with their terms all of the obligations that by the terms of the Credit Agreement and the other Loan Documents are required to be performed by it as a Lender; (e) acknowledges that it has delivered to the Administrative Agent completed and signed copies of any forms that may be required by the United States Internal Revenue Service (together with any additional supporting documentation required pursuant to applicable Treasury Department regulations or such other evidence satisfactory to the Borrowers and the Administrative Agent) in order to certify such Additional Lender’s exemption from United States withholding taxes with respect to any payments or distributions made or to be made to it in respect of the Loans or under the Credit Agreement and the other Loan Documents; and (f) acknowledges that one or more conditions precedent to the making of any Loan prior to the Eighth Amendment Effective Date may have been waived in connection with such Loan and agrees to be bound thereby.
1.3. Following the execution of this Amendment by all parties hereto, this Amendment will be delivered to the Administrative Agent for acceptance and recording by the Administrative Agent. Upon the satisfaction of the conditions precedent in Section 6 of this Amendment, each Additional Lender shall be a party to the Credit Agreement and the other Loan Documents and have the rights and obligations of a Lender thereunder.
1.4. The Term Loan Commitments and Revolving Credit Commitments for each Lender after giving effect to this Amendment are reflected on Schedule 1 contained in Annex A to this Amendment.
SECTION 2. EQUALIZATION OF REVOLVING CREDIT; ASSIGNMENTS BETWEEN LENDERS.
Upon the satisfaction of the conditions precedent set forth in Section 6 below, all Revolving Loans outstanding immediately prior to the Eighth Amendment Effective Date shall remain
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outstanding under the Credit Agreement. On the Eighth Amendment Effective Date, the Lenders each agree to make such purchases and sales of interests in the outstanding Revolving Loans and Revolving Credit Commitments among themselves so that each Lender is then holding its Percentage of the Revolving Loans and Revolving Credit Commitments. Such purchases and sales shall be arranged through the Administrative Agent and each Lender hereby agrees to execute such further instruments and documents, if any, as the Administrative Agent may reasonably request in connection therewith.
In connection with any assignment between Lenders, each assignor Lender (i) represents and warrants that to the assignee Lender it is the legal and beneficial owner of the interest being assigned by it hereunder and that such interest is free and clear of any adverse claim, lien, or encumbrance of any kind; (ii) makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Credit Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement or any other instrument or document furnished pursuant thereto; and (iii) makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or any Subsidiary or the performance or observance by the Borrower or any Subsidiary of any of their respective obligations under the Credit Agreement or any other instrument or document furnished pursuant thereto.
SECTION 3. 2028 TERM LOAN AND AMENDMENTS TO CREDIT AGREEMENT.
3.1 The Borrower confirms and agrees that (i) it has requested an increase in the aggregate amount of Term Loans, to be referred to in the Credit Agreement as 2028 Term Loans, in the aggregate principal amount of $100,000,000 from the applicable Lenders with a 2028 Term Loan Commitment (collectively, the “2028 Term Loan Lenders”) pursuant to and on the terms set forth in Section 1.15 of the Credit Agreement, effective on the Eighth Amendment Effective Date and (ii) on the Eighth Amendment Effective Date, the Borrower will borrow the full amount of the 2028 Term Loans from the 2028 Term Loan Lenders.
3.2 Each 2028 Term Loan Lender agrees that (i) effective on and at all times after the Eighth Amendment Effective Date, in addition to all Term Loans of such 2028 Term Loan Lender (if any) outstanding immediately prior to the Eighth Amendment Effective Date, such 2028 Term Lender will be bound by all obligations of a Lender under the Credit Agreement in respect of its 2028 Term Loan Commitment and its 2028 Term Loan and (ii) subject to the terms and conditions set forth herein and in the Credit Agreement, on the Eighth Amendment Effective Date, such 2028 Term Loan Lender will fund its 2028 Term Loan in the amount of its 2028 Term Loan Commitment.
3.3 Upon funding of the 2028 Term Loans on the Eighth Amendment Effective Date, such 2028 Term Loans shall automatically (and without any further action or notice by any party), constitute Term Loans for all purposes of the Credit Agreement and the other Loan Documents except as otherwise set forth herein.
3.4 Subject to the satisfaction of the conditions precedent set forth in Section 6 below, the Credit Agreement is, effective as of the date of this Amendment, hereby amended to delete the
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struck text (indicated textually in the same manner as the following example: struck text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the pages of the Credit Agreement attached as Annex A hereto, including all Schedules or Exhibits to the Credit Agreement.
3.5. Notwithstanding anything herein or in Annex A to the contrary, solely with respect to (a) any Eurodollar Loan (as such term is used in this Section 3.5, as defined in the Credit Agreement as in effect immediately prior to giving effect to the provisions of this Amendment on the Eighth Amendment Effective Date) that is outstanding on the Eighth Amendment Effective Date for which the current Interest Period is or was set prior to the Eighth Amendment Effective Date and (b) any retroactive margin, yield, fee or commission increases available to the Administrative Agent or the Lenders pursuant to the terms of the Credit Documents as a result of any inaccuracy in any financial statement or compliance certificate that, if corrected, would have led to the application of a higher interest margin or yield with respect to any Eurodollar Loan or any higher fee or commission for any applicable period during which any such Eurodollar Loan was or is outstanding, in each case, the Existing Eurodollar Related Definitions (as defined below) and provisions in the Loan Documents with respect thereto (as in effect immediately prior to giving effect to the provisions of this Amendment on the Eighth Amendment Effective Date) shall continue in effect solely for such purpose; provided that, with respect to any such Eurodollar Loan described in clause (a) of this Section 3.5, such Eurodollar Loan shall only continue in effect as a Eurodollar Loan in accordance with its terms until the then-current Interest Period for such Eurodollar Loan has concluded (it being understood and agreed that (i) at the end of such Interest Period for any such Eurodollar Loan, the Borrower shall have the option to convert all or any portion of any such Eurodollar Loan to a Base Rate Loan, subject to any applicable notice requirements set forth in Section 1.6(a) of the Credit Agreement, and (ii) if the Borrower fails to give notice within the period required by Section 1.6(a) of the Credit Agreement of any such conversion of any such Eurodollar Loan before the last day of such Interest Period and has not notified the Administrative Agent within the period required by Section 1.6(c) of the Credit Agreement that it intends to prepay such Eurodollar Loan, such Eurodollar Loan shall automatically be converted into a Borrowing of Term SOFR Rate Loans denominated in U.S. Dollars with an initial Interest Period of one (1) month.
As used herein, “Existing Eurodollar Related Definition” means any term defined in the Credit Agreement or any other Loan Document (or any partial definition thereof), in each case, as in effect immediately prior to giving effect to the provisions of this Amendment on the Eighth Amendment Effective Date, however phrased, primarily relating to the determination, administration or calculation of the Adjusted LIBOR.
SECTION 4. RELEASE AND ADDITION OF GUARANTORS.
Pursuant to Section 7.3 of the Credit Agreement, the Borrower hereby (a) requests deletion of certain Eligible Properties identified on Annex B hereto (the “Specified Released Properties”) from the Borrowing Base under the Credit Agreement and (b) requests that certain Guarantors identified on Annex B (the “Specified Released Guarantors”) be released from their obligations as Guarantors under the Credit Agreement. Subject to the satisfaction of the conditions precedent
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set forth in Section 6 below, and subject to, and in reliance on, the representations made by the Borrower herein, the Administrative Agent hereby releases the Specified Released Properties from the Borrowing Base and releases the Specified Released Guarantors from their obligations as Guarantors under the Credit Agreement, including, without limitation, the Specified Released Guarantors’ Guaranty under Section 13 thereof, effective as of the Amendment Effective Date.
Pursuant to Section 7.3 of the Credit Agreement, the Borrower hereby (a) requests the addition of certain Eligible Properties identified on Annex B hereto (the “Specified Addition Properties”) to the Borrowing Base under the Credit Agreement and (b) requests that certain Material Subsidiaries identified on Annex B (the “Specified Addition Guarantors”) be added as Guarantors under the Credit Agreement. Subject to the satisfaction of the conditions precedent set forth in Section 6 below, and subject to, and in reliance on, the representations made by the Borrower herein, the Administrative Agent hereby adds the Specified Addition Properties to the Borrowing Base and adds the Specified Addition Guarantors as Guarantors under the Credit Agreement, effective as of the Amendment Effective Date.
Each Specified Addition Guarantor hereby elects to be a “Guarantor” for all purposes of the Credit Agreement, effective from the date hereof. Each Specified Addition Guarantor confirms that the representations and warranties set forth in Section 6 of the Credit Agreement are true and correct as to such Specified Addition Guarantor as of the date hereof and such Specified Addition Guarantor shall comply with each of the covenants set forth in Section 8 of the Credit Agreement applicable to it. Without limiting the generality of the foregoing, each Specified Addition Guarantor hereby agrees to perform all the obligations of a Guarantor under, and to be bound in all respects by the terms of, the Credit Agreement, including, without limitation, Section 13 thereof, to the same extent and with the same force and effect as such Specified Addition Guarantor were a signatory party thereto.
SECTION 5. RELEASE OF PLEDGE AGREEMENT.
Pursuant to that certain Pledge Agreement, dated as of April 20, 2015, by each of the parties Pledgor (collectively, the “Pledgors”) thereto in favor of the Administrative Agent for the benefit of the Lenders (as amended, modified, restated and/or supplemented from time to time, the “Pledge Agreement”), the Pledgors have pledged and granted a Lien in the Equity Interests of certain Collateral (as defined in the Pledge Agreement) (the “Pledge Collateral”) to the Administrative Agent, for the benefit of the Lenders. Pursuant to the terms of this Amendment, the Pledged Collateral is no longer required to secure the Obligations and accordingly, the Pledgors have requested that the Administrative Agent release its security interest in the Pledge Collateral. Subject to the satisfaction of the conditions precedent set forth in Section 6 below, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged and confirmed, Administrative Agent hereby agrees that the Pledge Agreement is hereby terminated and shall be of no further force or effect, and the pledges, liens and security interests in and to the Pledge Collateral granted pursuant to the Pledge Agreement shall be canceled, terminated, discharged and forever released; provided that nothing herein shall serve to release any such obligations that, by their express terms, survive the termination of the Pledge Agreement.
SECTION 6. CONDITIONS PRECEDENT.
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6.1. The Borrower, the Guarantors, the Lenders, the Additional Lenders, the Administrative Agent, the L/C Issuer and the Swing Line Lender shall have executed and delivered this Amendment to the Administrative Agent.
6.2. The Borrower shall have executed and delivered (a) a Ninth Amended and Restated Revolving Note to each of Bank of Montreal and Truist Bank, (b) an Eighth Amended and Restated Revolving Note to Xxxxx Fargo Bank, National Association, (c) an Amended and Restated Revolving Note to each of KeyBank, National Association, Xxxxxxx Xxxxx Bank and Synovus Bank, (d) a Revolving Note to each of The Huntington National Bank, PNC and Regions, and (e) Term Notes evidencing the 2028 Term Loans to each of Bank of Montreal, The Huntington National Bank, KeyBank, National Association, PNC, Xxxxxxx Xxxxx Bank, and Truist Bank.
6.3. The Borrower, the Joint Lead Arrangers and the Administrative Agent shall have executed the Fee Letters, dated of even date herewith (the “Fee Letters”).
6.4. All fees that are due and payable on the date of this Agreement by the terms of the Fee Letters and any fee letter between the Borrower and any Joint Lead Arranger shall have been paid in full in immediately available funds.
6.5. The Administrative Agent shall have received a satisfactory legal opinion from counsel to the Borrower and Guarantors.
6.6. The Administrative Agent shall have received such other agreements, instruments, documents, and certificates as the Administrative Agent may reasonably request, and legal matters incident to the execution and delivery of this Amendment shall be reasonably satisfactory to the Administrative Agent and its counsel.
SECTION 7. REPRESENTATIONS.
In order to induce the Administrative Agent and the Lenders to execute and deliver this Amendment, the Borrower hereby represents to the Administrative Agent and the Lenders that (a) after giving effect to this Amendment, the representations and warranties set forth in Section 6 of the Credit Agreement are and shall be and remain true and correct in all material respects (except in the case of a representation or warranty qualified by materiality in which case such representation or warranty shall be true and correct in all respects) as of the date hereof (or, if any such representation and warranty is expressly stated to have been made as of a specific date, as of such specific date) and (b) no Default or Event of Default has occurred and is continuing under the Credit Agreement or shall result after giving effect to this Amendment.
SECTION 8. MISCELLANEOUS.
8.1. Except as specifically amended herein, the Credit Agreement and the other Loan Documents shall continue in full force and effect in accordance with their original terms. Reference to this specific Amendment need not be made in the Credit Agreement, the Notes, the
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other Loan Documents, or any other instrument or document executed in connection therewith, or in any certificate, letter or communication issued or made pursuant to or with respect to the Credit Agreement or any other Loan Document, any reference in any of such items to the Credit Agreement and each other Loan Document being sufficient to refer to the Credit Agreement or such Loan Document as amended hereby.
8.2. The Borrower agrees to pay all reasonable costs and out-of-pocket expenses of or incurred by the Administrative Agent in connection with the negotiation, preparation, execution and delivery of this Amendment, including the reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent.
8.3. Each Guarantor consents to the amendments, modifications and waivers to the Credit Agreement and other Loan Documents as set forth herein and confirms all of its obligations under its Guaranty remain in full force and effect. Furthermore, each Guarantor acknowledges and agrees that the consent of the Guarantors, or any of them, to any further amendments, modifications or waivers to the Credit Agreement shall not be required as a result of this consent having been obtained.
8.4. The Borrower and the Guarantors acknowledge that the Preliminary Statements set forth above are true and correct. This Amendment is a Loan Document. This Amendment may be executed in any number of counterparts, and by the different parties on different counterpart signature pages, all of which taken together shall constitute one and the same agreement. Any of the parties hereto may execute this Amendment by signing any such counterpart and each of such counterparts shall for all purposes be deemed to be an original. Delivery of executed counterparts of this Amendment by Adobe portable document format (a “PDF”) via e-mail or by facsimile shall be effective as an original. The words “execution”, “executed”, “signed”, “signature” and words of similar import in or related to this Amendment and the other Loan Documents shall be deemed to include electronic signatures and the electronic matching of assignment terms and contract formations on electronic platforms approved by Administrative Agent for 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 and any other similar applicable state laws based on the Uniform Electronic Transactions Act. This Amendment, and the rights and the duties of the parties hereto, shall be construed and determined in accordance with the internal laws of the State of New York.
[Signature Pages Follow]
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This Eighth Amendment to Second Amended and Restated Credit Agreement and Xxxxxxx is entered into as of the date and year first above written
“BORROWER”
| CTO REALTY GROWTH, INC., a Maryland | |
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| By | /s/ Xxxxxxx X. Xxxxxxxxx |
| Name: | Xxxxxxx X. Xxxxxxxxx |
| Title: | Senior Vice President, Chief Financial |
[SIGNATURE PAGE TO EIGHTH AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND JOINDER
| “GUARANTORS” | |
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| LHC15 RIVERSIDE FL LLC, a Delaware limited liability company | |
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| By: | CTO Realty Growth, Inc., a Maryland |
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| By: | /s/ Xxxxxxx X. Xxxxxxxxx |
| Name: | Xxxxxxx X. Xxxxxxxxx |
| Title: | Senior Vice President, Chief Financial Officer and Treasurer |
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| CTO17 WESTCLIFF TX LLC, a Delaware limited liability company | |
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| By: | CTO Realty Growth, Inc., a Maryland corporation, its sole member |
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| By: | /s/ Xxxxxxx X. Xxxxxxxxx |
| Name: | Xxxxxxx X. Xxxxxxxxx |
| Title: | Senior Vice President, Chief Financial Officer and Treasurer |
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| INDIGO GROUP INC., a Florida corporation | |
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| By: | /s/ Xxxxxxx X. Xxxxxxxxx |
| Name: | Xxxxxxx X. Xxxxxxxxx |
| Title: | Senior Vice President, Chief Financial Officer and Treasurer |
[SIGNATURE PAGE TO EIGHTH AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND JOINDER
| CTO18 ALBUQUERQUE NM LLC, a Delaware limited liability company | |
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| By: | CTO Realty Growth, Inc., a Maryland |
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| By: | /s/ Xxxxxxx X. Xxxxxxxxx |
| Name: | Xxxxxxx X. Xxxxxxxxx |
| Title: | Senior Vice President, Chief Financial Officer and Treasurer |
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| CTO19 RESTON VA LLC, a Delaware limited liability company | |
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| By: | CTO Realty Growth, Inc., a Maryland corporation, its manager |
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| By: | /s/ Xxxxxxx X. Xxxxxxxxx |
| Name: | Xxxxxxx X. Xxxxxxxxx |
| Title: | Senior Vice President, Chief Financial Officer and Treasurer |
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[SIGNATURE PAGE TO EIGHTH AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND JOINDER
| INDIGO GROUP LTD., a Florida limited | |
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| By: | Indigo Group, Inc., a Florida corporation, |
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| By: | /s/ Xxxxxxx X. Xxxxxxxxx |
| Name: | Xxxxxxx X. Xxxxxxxxx |
| Title: | Senior Vice President, Chief Financial |
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| CTO19 STRAND JAX LLC, a Delaware | |
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| By: | CTO Realty Growth, Inc., a Maryland |
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| By: | /s/ Xxxxxxx X. Xxxxxxxxx |
| Name: | Xxxxxxx X. Xxxxxxxxx |
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| Title: | Senior Vice President, Chief Financial |
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| DAYTONA JV LLC, a Florida limited liability | |
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| By: | LHC15 Atlantic DB JV LLC, a Delaware |
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| By: | CTO Realty Growth, Inc., a Maryland |
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| By: | /s/ Xxxxxxx X. Xxxxxxxxx |
| Name: | Xxxxxxx X. Xxxxxxxxx |
| Title: | Senior Vice President, Chief Financial |
[SIGNATURE PAGE TO EIGHTH AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND JOINDER
CTO REALTY GROWTH, INC.]
| CTO20 CROSSROADS AZ LLC, a Delaware limited liability company | |
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| By: | CTO Realty Growth, Inc., a Maryland corporation, its manager |
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| By: | /s/ Xxxxxxx X. Xxxxxxxxx |
| Name: | Xxxxxxx X. Xxxxxxxxx |
| Title: | Senior Vice President, Chief Financial |
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| IGI20 CROSSROADS AZ LLC, a Delaware limited liability company | |
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| By: | Indigo Group Inc., a Florida corporation, |
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| By: | /s/ Xxxxxxx X. Xxxxxxxxx |
| Name: | Xxxxxxx X. Xxxxxxxxx |
| Title: | Senior Vice President, Chief Financial |
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| CTO20 PERIMETER LLC, a Delaware limited liability company | |
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| By: | CTO Realty Growth, Inc., a Maryland corporation, its sole manager |
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| By: | /s/ Xxxxxxx X. Xxxxxxxxx |
| Name: | Xxxxxxx X. Xxxxxxxxx |
| Title: | Senior Vice President, Chief Financial |
[SIGNATURE PAGE TO EIGHTH AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND JOINDER
CTO REALTY GROWTH, INC.]
| CTO20 PERIMETER II LLC, a Delaware limited liability company | |
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| By: | CTO Realty Growth, Inc., a Maryland corporation, its sole manager |
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| By: | /s/ Xxxxxxx X. Xxxxxxxxx |
| Name: | Xxxxxxx X. Xxxxxxxxx |
| Title: | Senior Vice President, Chief Financial |
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| CTO20 TAMPA LLC, a Delaware limited liability company | |
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| By: | CTO Realty Growth, Inc., a Maryland corporation, its manager |
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| By: | /s/ Xxxxxxx X. Xxxxxxxxx |
| Name: | Xxxxxxx X. Xxxxxxxxx |
| Title: | Senior Vice President, Chief Financial |
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| IGI20 TAMPA LLC, a Delaware limited liability company | |
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| By: | Indigo Group Inc., a Florida corporation, its manager |
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| By: | /s/ Xxxxxxx X. Xxxxxxxxx |
| Name: | Xxxxxxx X. Xxxxxxxxx |
| Title: | Senior Vice President, Chief Financial |
[SIGNATURE PAGE TO EIGHTH AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND JOINDER
CTO REALTY GROWTH, INC.]
| IGL20 TAMPA LLC, a Delaware limited liability company | |
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| By: | Indigo Group Ltd., a Florida limited partnership, |
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| By: | Indigo Group Inc., a Florida corporation, its general partner |
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| By: | /s/ Xxxxxxx X. Xxxxxxxxx |
| Name: | Xxxxxxx X. Xxxxxxxxx |
| Title: | Senior Vice President, Chief Financial |
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| CTO20 HIALEAH LLC, a Delaware limited liability company | |
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| By: | CTO Realty Growth, Inc., a Maryland corporation, its manager |
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| By: | /s/ Xxxxxxx X. Xxxxxxxxx |
| Name: | Xxxxxxx X. Xxxxxxxxx |
| Title: | Senior Vice President, Chief Financial |
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| CTO21 ACQUISITIONS LLC, a Delaware limited liability company | |
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| By: | CTO Realty Growth, Inc., a Maryland corporation, its manager |
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| By: | /s/ Xxxxxxx X. Xxxxxxxxx |
| Name: | Xxxxxxx X. Xxxxxxxxx |
| Title: | Senior Vice President, Chief Financial |
[SIGNATURE PAGE TO EIGHTH AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND JOINDER
CTO REALTY GROWTH, INC.]
| CTO21 ACQUISITIONS II LLC, a Delaware limited liability company | |
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| By: | CTO Realty Growth, Inc., a Maryland corporation, its manager |
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| By: | /s/ Xxxxxxx X. Xxxxxxxxx |
| Name: | Xxxxxxx X. Xxxxxxxxx |
| Title: | Senior Vice President, Chief Financial |
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| CTO21 AL OUTPARCEL LLC, a Delaware limited liability company | |
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| By: | CTO Realty Growth, Inc., a Maryland corporation, its manager |
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| By: | /s/ Xxxxxxx X. Xxxxxxxxx |
| Name: | Xxxxxxx X. Xxxxxxxxx |
| Title: | Senior Vice President, Chief Financial |
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| CTO21 APEX LLC, a Delaware limited liability company | |
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| By: | CTO Realty Growth, Inc., a Maryland corporation, its manager |
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| By: | /s/ Xxxxxxx X. Xxxxxxxxx |
| Name: | Xxxxxxx X. Xxxxxxxxx |
| Title: | Senior Vice President, Chief Financial |
[SIGNATURE PAGE TO EIGHTH AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND JOINDER
CTO REALTY GROWTH, INC.]
| CTO21 SANTA FE LLC, a Delaware limited liability company | |
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| By: | CTO Realty Growth, Inc., a Maryland corporation, its manager |
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| By: | /s/ Xxxxxxx X. Xxxxxxxxx |
| Name: | Xxxxxxx X. Xxxxxxxxx |
| Title: | Senior Vice President, Chief Financial |
| | |
[SIGNATURE PAGE TO EIGHTH AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND JOINDER
CTO REALTY GROWTH, INC.]
| CTO21 XXXXXX 1 LLC, a Delaware limited liability company | |
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| By: | CTO Realty Growth, Inc., a Maryland corporation, its manager |
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| By: | /s/ Xxxxxxx X. Xxxxxxxxx |
| Name: | Xxxxxxx X. Xxxxxxxxx |
| Title: | Senior Vice President, Chief Financial |
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| CTO22 MADISON YARDS LLC, a Delaware limited liability company | |
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| By: | CTO Realty Growth, Inc., a Maryland corporation, its manager |
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| By: | /s/ Xxxxxxx X. Xxxxxxxxx |
| Name: | Xxxxxxx X. Xxxxxxxxx |
| Title: | Senior Vice President, Chief Financial |
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| IGI 21 KATY LLC, a Delaware limited liability company | |
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| By: | Indigo Group, Inc., a Florida corporation, its manager |
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| By: | /s/ Xxxxxxx X. Xxxxxxxxx |
| Name: | Xxxxxxx X. Xxxxxxxxx |
| Title: | Senior Vice President, Chief Financial |
[SIGNATURE PAGE TO EIGHTH AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND JOINDER
CTO REALTY GROWTH, INC.]
| Accepted and Agreed to: | ||
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| “ADMINISTRATIVE AGENT AND L/C ISSUER” | ||
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| BANK OF MONTREAL, as L/C Issuer and as | ||
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| By: | /s/ Xxxxx X. Xxxxxxxx | |
| | Name: | Xxxxx X. Xxxxxxxx |
| | Title: | Director |
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| “LENDERS” | ||
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| BANK OF MONTREAL, as a Lender and Swing Line Lender | ||
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| By: | /s/ Xxxxx X. Xxxxxxxx | |
| | Name: | Xxxxx X. Xxxxxxxx |
| | Title: | Director |
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[SIGNATURE PAGE TO EIGHTH AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND JOINDER
CTO REALTY GROWTH, INC.]
| PNC BANK, NATIONAL ASSOCIATION | ||
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| By: | /s/ Xxxxxx X. Xxxxx | |
| | Name: | Xxxxxx X. Xxxxx |
| | Title: | Senior Vice President |
[SIGNATURE PAGE TO EIGHTH AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND JOINDER
CTO REALTY GROWTH, INC.]
| TRUIST BANK | ||
| | ||
| By: | /s/ Xxxx Xxxxxx | |
| | Name: | Xxxx Xxxxxx |
| | Title: | Director |
[SIGNATURE PAGE TO EIGHTH AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND JOINDER
CTO REALTY GROWTH, INC.]
| XXXXX FARGO BANK, NATIONAL ASSOCIATION | ||
| | ||
| By: | /s/ Xxxxxx Xxxxxxx | |
| | Name: | Xxxxxx Xxxxxxx |
| | Title: | Director |
[SIGNATURE PAGE TO EIGHTH AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND JOINDER
CTO REALTY GROWTH, INC.]
| THE HUNTINGTON NATIONAL BANK | ||
| | ||
| By: | /s/ Xxxx X. Xxxxx | |
| | Name: | Xxxx X. Xxxxx |
| | Title: | Assistant Vice President |
[SIGNATURE PAGE TO EIGHTH AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND JOINDER
CTO REALTY GROWTH, INC.]
| KEYBANK NATIONAL ASSOCIATION | ||
| | ||
| By: | /s/ Xxxxxx X. Xxxxxxx | |
| | Name: | Xxxxxx X. Xxxxxxx |
| | Title: | Senior Relationship Manager |
[SIGNATURE PAGE TO EIGHTH AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND JOINDER
CTO REALTY GROWTH, INC.]
| XXXXXXX XXXXX BANK | ||
| | ||
| By: | /s/ Xxxxxxx X. Xxxxxx | |
| | Name: | Xxxxxxx X. Xxxxxx |
| | Title: | Senior Vice President |
[SIGNATURE PAGE TO EIGHTH AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND JOINDER
CTO REALTY GROWTH, INC.]
| REGIONS BANK | ||
| | ||
| By: | /s/ Xxx X. Xxxxx | |
| | Name: | Xxx X. Xxxxx |
| | Title: | Senior Vice President |
[SIGNATURE PAGE TO EIGHTH AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND JOINDER
CTO REALTY GROWTH, INC.]
| SYNOVUS BANK | ||
| | ||
| By: | /s/ Xxxxxx Xxxxx | |
| | Name: | Xxxxxx Xxxxx |
| | Title: | Corporate Officer |
[SIGNATURE PAGE TO EIGHTH AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND JOINDER
CTO REALTY GROWTH, INC.]
ANNEX A TO EIGHTH AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND JOINDER
[See attached.]
ANNEX B TO EIGHTH AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND JOINDER
· Specified Addition Properties
o The Exchange at Gwinnett - Buford, GA
o Price Plaza - Katy, TX
o Madison Yards - Atlanta, GA
· Specified Addition Guarantors
o CTO21 Xxxxxx 1 LLC
o CTO22 Madison Yards LLC
o IGI21 Katy, LLC
· Specified Released Properties
o Firebirds Wood Fired Grill - Jacksonville, FL
o Chuy's - Jacksonville, FL
o Westland Gateway Plaza - Hialeah, FL
· Specified Released Guarantors
o CTO18 Jacksonville FL LLC
o CTO19 Xxxxxxxxx Xxxxxx LLC
o CTO19 Oceanside NY LLC
o IGI19 FC VA LLC
EXECUTION VERSION
Annex A
SEVENTHEIGHTH AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF SEPTEMBER 7, 2017
as amended by:
First Amendment to Second Amended and Restated Credit Agreement, dated as of May 14, 2018
Second Amendment to Second Amended and Restated Credit Agreement, dated as of May 24, 2019
Third Amendment to Second Amended and Restated Credit Agreement, dated as of November 26, 0000
Xxxxxx Xxxxxxxxx to Second Amended and Restated Credit Agreement, dated as of July 1, 2020
Fifth Amendment to Second Amended and Restated Credit Agreement and Consent, dated as of November 12, 2020
Sixth Amendment to Second Amended and Restated Credit Agreement and ConsentJoinder, dated as of March 10, 2021
Seventh Amendment to Second Amended and Restated Credit Agreement and Joinder, dated as of November 5, 2021
Eighth Amendment to Second Amended and Restated Credit Agreement and Joinder, dated as of September 20, 2022
AMONG
CTO REALTY GROWTH, INC.,
THE GUARANTORS FROM TIME TO TIME PARTIES HERETO,
THE LENDERS FROM TIME TO TIME PARTIES HERETO,
BANK OF MONTREAL,
AS ADMINISTRATIVE AGENT,
KEYBANK, NATIONAL ASSOCIATION, TRUIST BANK
AND XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AS REVOLVING CREDIT CO-SYNDICATION AGENTS
TRUIST BANK, AS 2026 TERM LOAN SYNDICATION AGENT
KEYBANK, NATIONAL ASSOCIATION AND XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AS 2027 TERM LOAN CO-SYNDICATION AGENTS
TRUIST BANK AND PNC BANK, NATIONAL ASSOCIATION,
AS 2028 TERM LOAN CO-SYNDICATION AGENTS
BMO CAPITAL MARKETS CORP., AS SUSTAINABILITY STRUCTURING AGENT
BANK OF MONTREAL, KEYBANC CAPITAL MARKETS INC., TRUIST SECURITIES, INC., WELL
AND XXXXX FARGO SECURITIES, LLC ,
AS REVOLVING CREDIT JOINT LEAD ARRANGERS AND JOINT BOOK RUNNERS
BMO CAPITAL MARKETS CORP. AND TRUIST SECURITIES, INC.,
AS 2026 TERM LOAN JOINT LEAD ARRANGERS AND JOINT BOOK RUNNERS
BMO CAPITAL MARKETS CORP., KEYBANKKEYBANC CAPITAL MARKETS INC.
AND
WELL XXXXX FARGO SECURITIES, LLC,
AS 2027 TERM LOAN JOINT LEAD ARRANGERS AND JOINT BOOK RUNNERS
BANK OF MONTREAL, TRUIST SECURITIES, INC. AND PNC CAPITAL MARKETS LLC,
AS 2028 TERM LOAN JOINT LEAD ARRANGERS AND JOINT BOOK RUNNERS
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TABLE OF CONTENTS
SECTION | HEADING | PAGE |
| | |
SECTION 1. | THE CREDIT FACILITIES | 1 |
Section 1.1. | Revolving Credit Commitments | 1 |
Section 1.2. | Term Loan | 1 |
Section 1.3. | Letters of Credit | 2 |
Section 1.4. | Applicable Interest Rates | 6 |
Section 1.5. | Minimum Borrowing Amounts; Maximum EurodollarTerm SOFR Rate Loans | 87 |
Section 1.6. | Xxxxxx of Borrowing Loans and Designating Applicable Interest Rates | 87 |
Section 1.7. | Maturity of Loans | 109 |
Section 1.8. | Prepayments | 109 |
Section 1.9. | Default Rate | 1110 |
Section 1.10. | Evidence of Indebtedness | 1211 |
Section 1.11. | Funding Indemnity | 12 |
Section 1.12. | Commitment Terminations | 13 |
Section 1.13. | Substitution of Lenders | 13 |
Section 1.14. | Defaulting Lenders | 1413 |
Section 1.15. | Increase in Revolving Credit Commitments and Incremental Term Loan Commitments | 1514 |
Section 1.16. | Extension of Revolving Credit Termination Date | 16 |
Section 1.17. | Swing Loans | 1716 |
Section 1.18. | ESG Amendment | 18 |
| | |
SECTION 2. | FEES | 19 |
Section 2.1. | Fees | 19 |
| | |
SECTIONECTION 3. | PLACE AND APPLICATION OF PAYMENTS | 20 |
Section 3.1. | Place and Application of Payments | 20 |
| | |
SECTION 4. | GUARANTIES | 21 |
Section 4.1. | Guaranties | 21 |
Section 4.2. | Further Assurances | 2122 |
| | |
SECTION 5. | DEFINITIONS; INTERPRETATION | 22 |
Section 5.1. | Definitions | 22 |
Section 5.2. | Interpretation | 5057 |
Section 5.3. | Change in Accounting Principles | 5058 |
Section 5.4. | Divisions | 58 |
Section 5.5. | Interest Rates | 58 |
SECTION 6. | REPRESENTATIONS AND WARRANTIES | 5059 |
Section 6.1. | Organization and Qualification | 5059 |
Section 6.2. | Subsidiaries | 5159 |
Section 6.3. | Authority and Validity of Obligations | 5159 |
Section 6.4. | Use of Proceeds; Margin Stock | 5260 |
Section 6.5. | Financial Reports | 5260 |
Section 6.6. | No Material Adverse Effect | 5261 |
Section 6.7. | Full Disclosure | 5261 |
Section 6.8. | Trademarks, Franchises, and Licenses | 5361 |
Section 6.9. | Governmental Authority and Licensing | 5361 |
Section 6.10. | Good Title | 5361 |
Section 6.11. | Litigation and Other Controversies | 5361 |
Section 6.12. | Taxes | 5362 |
Section 6.13. | Approvals | 5362 |
Section 6.14. | Affiliate Transactions | 5462 |
Section 6.15. | Investment Company | 5462 |
Section 6.16. | ERISA | 5462 |
Section 6.17. | Compliance with Laws | 5462 |
Section 6.18. | OFAC | 5564 |
Section 6.19. | Other Agreements | 5664 |
Section 6.20. | Solvency | 5664 |
Section 6.21. | No Default | 5664 |
Section 6.22. | No Broker Fees. | 5664 |
Section 6.23. | Condition of Property; Casualties; Condemnation | 5664 |
Section 6.24. | Legal Requirements, and Zoning | 5765 |
Section 6.25. | No Defaults; Landlord is in Compliance with Leases | 5765 |
Section 6.26. | EEA Financial Institution | 5765 |
Section 6.27. | REIT Status | 5765 |
| | |
SECTION 7. | CONDITIONS PRECEDENT | 5766 |
Section 7.1. | All Credit Events | 5766 |
Section 7.2. | Initial Credit Event | 5866 |
Section 7.3. | Eligible Property Additions and Deletions to the Borrowing Base | 6068 |
| | |
SECTION 8. | COVENANTS | 6169 |
Section 8.1. | Maintenance of Existence | 6169 |
Section 8.2. | Maintenance of Properties, Agreements | 6169 |
Section 8.3. | Taxes and Assessments | 6169 |
Section 8.4. | Insurance | 6270 |
Section 8.5. | Financial Reports | 6270 |
Section 8.6. | Inspection | 6573 |
Section 8.7. | Liens | 6573 |
Section 8.8. | Investments, Acquisitions, Loans and Advances | 6573 |
Section 8.9. | Mergers, Consolidations and Sales | 6774 |
Section 8.10. | Maintenance of Subsidiaries | 6875 |
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Section 8.11. | ERISA | 6875 |
Section 8.12. | Compliance with Laws | 6876 |
Section 8.13. | Compliance with OFAC Sanctions Programs and Anti-Corruption Laws | 6976 |
Section 8.14. | Burdensome Contracts With Affiliates | 7077 |
Section 8.15. | No Changes in Fiscal Year | 7078 |
Section 8.16. | Formation of Subsidiaries | 7078 |
Section 8.17. | Change in the Nature of Business | 7078 |
Section 8.18. | Use of Proceeds | 7078 |
Section 8.19. | No Restrictions | 7078 |
Section 8.20. | Financial Covenants | 7178 |
Section 8.21. | Borrowing Base Covenant | 7179 |
Section 8.22. | Reserved. | 7179 |
Section 8.23. | Electronic Delivery of Certain Information | 7179 |
Section 8.24. | Pledge of Equity Interest in Material Subsidiaries; Springing LienCollateral Trigger Event | 7280 |
Section 8.25. | 1031 Properties | 7482 |
Section 8.26. | Reserved | 7482 |
Section 8.27. | Reserved | 7482 |
Section 8.28. | REIT Status | 7482 |
Section 8.29. | Restricted Payments | 7582 |
| | |
SECTION 9. | EVENTS OF DEFAULT AND REMEDIES | 7683 |
Section 9.1. | Events of Default | 7683 |
Section 9.2. | Non-Bankruptcy Defaults | 7885 |
Section 9.3. | Bankruptcy Defaults | 7886 |
Section 9.4. | Collateral for Undrawn Letters of Credit | 7986 |
Section 9.5. | Notice of Default | 7987 |
| | |
SECTION 10. | CHANGE IN CIRCUMSTANCES | 8087 |
Section 10.1. | Change of Law | 8087 |
Section 10.2. | Unavailability of Deposits or Inability to Ascertain, or Inadequacy of, LIBORDetermine Rates; Effect of Benchmark Transition Event | 8087 |
Section 10.3. | Increased Cost and Reduced Return | 8090 |
Section 10.4. | Lending Offices | 8291 |
Section 10.5. | Discretion of Lender as to Manner of Funding | 8291 |
Section 10.6 | Benchmark Replacement Setting | 82 |
| | |
SECTION 11. | THE ADMINISTRATIVE AGENT | 8792 |
Section 11.1. | Appointment and Authority | 8792 |
Section 11.2. | Rights as a Lender | 8792 |
Section 11.3. | Action by Administrative Agent; Exculpatory Provisions | 8792 |
Section 11.4. | Reliance by Administrative Agent | 8993 |
Section 11.5. | Delegation of Duties | 8994 |
Section 11.6. | Resignation of Administrative Agent; Removal of Administrative Agent | 8994 |
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Section 11.7. | Non-Reliance on Administrative Agent and Other Lenders | 9095 |
Section 11.8. | L/C Issuer and Swing Line Lender. | 9195 |
Section 11.9. | Hedging Liability and Funds Transfer and Deposit Account Liability | 9296 |
Section 11.10. | Designation of Additional Agents | 9297 |
Section 11.11. | Authorization to Enter into, and Enforcement of, the Collateral Documents; Possession of Collateral[Intentionally Omitted] | 9297 |
Section 11.12. | Authorization to Release, Limit or Subordinate Liens or to Release Guaranties | 9397 |
Section 11.13. | Authorization of Administrative Agent to File Proofs of Claim | 9497 |
| | |
SECTION 12. | MISCELLANEOUS | 9598 |
Section 12.1. | Withholding Taxes | 9598 |
Section 12.2. | No Waiver, Cumulative Remedies | 97100 |
Section 12.3. | Non-Business Days | 97100 |
Section 12.4. | Documentary Taxes | 97100 |
Section 12.5. | Survival of Representations | 97101 |
Section 12.6. | Survival of Indemnities | 98101 |
Section 12.7. | Sharing of Set-Off | 98101 |
Section 12.8. | Notices | 98101 |
Section 12.9. | Counterparts | 99102 |
Section 12.10. | Successors and Assigns | 100103 |
Section 12.11. | Participants | 100103 |
Section 12.12. | Assignments | 100103 |
Section 12.13. | Amendments | 103106 |
Section 12.14. | Headings | 104107 |
Section 12.15. | Costs and Expenses; Indemnification | 104107 |
Section 12.16. | Set-off | 105108 |
Section 12.17. | Entire Agreement | 106109 |
Section 12.18. | Governing Law | 106109 |
Section 12.19. | Severability of Provisions | 106109 |
Section 12.20. | Excess Interest | 106109 |
Section 12.21. | Construction | 107110 |
Section 12.22. | Xxxxxx’s and L/C Issuer’s Obligations Several | 107110 |
Section 12.23. | Submission to Jurisdiction; Waiver of Jury Trial | 107110 |
Section 12.24. | USA Xxxxxxx Xxx | 000000 |
Section 12.25. | Confidentiality | 107110 |
Section 12.26. | Limitation of Recourse | 108112 |
Section 12.27. | Other Taxes | 109112 |
Section 12.28. | Amendment and Restatement; No Novation | 109112 |
Section 12.29. | Acknowledgement and Consent to Bail-In of EEA Financial Institutions | 109112 |
Section 12.30. | Acknowledgement Regarding Any Supported QFCs | 110113 |
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SECTION 13. | THE GUARANTEES | 111114 |
Section 13.1. | The Guarantees | 111114 |
Section 13.2. | Guarantee Unconditional | 112115 |
Section 13.3. | Discharge Only upon Payment in Full; Reinstatement in Certain Circumstances | 112115 |
Section 13.4. | Subrogation | 113116 |
Section 13.5. | Waivers | 113116 |
Section 13.6. | Limit on Recovery | 113116 |
Section 13.7. | Stay of Acceleration | 113116 |
Section 13.8. | Benefit to Guarantors | 113116 |
Section 13.9. | Guarantor Covenants | 113117 |
Section 13.10. | Keepwell | 114117 |
Signature Page | | 1 |
EXHIBIT A | — | Notice of Payment Request | |
EXHIBIT B | — | Notice of Borrowing | |
EXHIBIT C | — | Notice of Continuation/Conversion | |
EXHIBIT D-1 | — | Revolving Note | |
EXHIBIT D-2 | — | Swing Note | |
EXHIBIT D-3 | — | Term Note | |
EXHIBIT D-4 | — | Incremental Term Note | |
EXHIBIT E | — | Compliance Certificate | |
EXHIBIT F | — | Assignment and Acceptance | |
EXHIBIT G | — | Additional Guarantor Supplement | |
EXHIBIT H | — | Commitment Amount Increase Request | |
EXHIBIT I | — | Borrowing Base Certificate | |
SCHEDULE 1I | — | Revolving Credit Commitments | |
SCHEDULE 1.1 | — | SeventhEighth Amendment Effective Date Properties | |
SCHEDULE 6.2 | — | Subsidiaries | |
SCHEDULE 6.6 | — | Material Adverse Effect | |
SCHEDULE 6.11 | — | Litigation | |
SCHEDULE 6.17 | — | Environmental Issues | |
SCHEDULE 8.7 | — | Existing Liens | |
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This Second Amended and Restated Credit Agreement (this “Agreement”) is entered into as of September 7, 2017, by and among CTO Realty Growth, Inc., a Maryland corporation (the “Borrower”), and each Material Subsidiary from time to time party to this Agreement, as Guarantors, the several financial institutions from time to time party to this Agreement, as Lenders, and BANK OF MONTREAL, as Administrative Agent as provided herein. All capitalized terms used herein without definition shall have the same meanings herein as such terms are defined in Section 5.1 hereof.
PRELIMINARY STATEMENT
WHEREAS, the Borrower and certain Material Subsidiaries of the Borrower, as Guarantors, the financial institutions party thereto as “Lenders” and Bank of Montreal, as Administrative Agent, Swing Line Lender and the L/C Issuer, previously entered into a Second Amended and Restated Credit Agreement dated as of September 7, 2017 (as heretofore extended, renewed, amended, modified, amended and restated or supplemented, the “Prior Credit Agreement”).
NOW, THEREFORE, in consideration of the mutual agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. THE CREDIT FACILITIES.
Section 1.1. Revolving Credit Commitments. Subject to the terms and conditions hereof, each Revolving Lender, by its acceptance hereof, severally agrees to make a loan or loans (individually a “Revolving Loan” and collectively for all the Revolving Lenders the “Revolving Loans”) in U.S. Dollars to the Borrower from time to time on a revolving basis up to the amount of such Revolving Lender’s Revolving Credit Commitment, subject to any reductions thereof pursuant to the terms hereof, before the Revolving Credit Termination Date. The sum of the aggregate principal amount of Revolving Loans, Swing Loans and L/C Obligations at any time outstanding, (x) may at no time exceed the Revolving Credit Commitments and (y) when taken together with the aggregate principal amount of Term Loans then outstanding, shall not exceed the Borrowing Base as then determined and computed. Each Borrowing of Revolving Loans shall be made ratably by the Revolving Lenders in proportion to their respective Revolver Percentages. As provided in Section 1.6(a) hereof, the Borrower may elect that each Borrowing of Revolving Loans be eitheroutstanding as (i) Base Rate Loans or Eurodollar, (ii) Daily Simple SOFR Rate Loans or (iii) Term SOFR Rate Loans. Revolving Loans may be repaid and the principal amount thereof reborrowed before the Revolving Credit Termination Date, subject to the terms and conditions hereof.
Section 1.2. Term Loan. Subject to the terms and conditions hereof, each Term Loan Lender, by its acceptance hereof, severally agrees to make Term Loans in U.S. Dollars to the Borrower in the amount of such Xxxxxx’s Term Loan Commitment. The 20272028 Term Loans will be advanced in a single Borrowing on the SeventhEighth Amendment Effective Date and shall
be made ratably by the Term Loan Lenders in proportion to their respective Term Loan Percentages, at which time the 20272028 Term Loan Commitments shall expire; provided, that after giving effect to the 20272028 Term Loans advanced on the SeventhEighth Amendment Effective Date, the aggregate principal amount of the outstanding Revolving Loans, 2026 Term Loans, 2027 Term Loans and 20272028 Term Loans shall not exceed the Borrowing Base as then computed and determined. As provided in Section 1.6(a) hereof, the Borrower may elect that the Term Loans be outstanding as (i) Base Rate Loans or Eurodollar, (ii) Daily Simple SOFR Rate Loans or (iii) Term SOFR Rate Loans. No amount repaid or prepaid on the Term Loan may be borrowed again.
Section 1.3. Letters of Credit .
(a) General Terms. Subject to the terms and conditions hereof, as part of the Revolving Credit, the L/C Issuer shall issue standby and commercial letters of credit (each a “Letter of Credit”) or amend or extend Letters of Credit issued by it for the account of the Borrower or for the account of the Borrower and one or more of its Subsidiaries in an aggregate undrawn face amount up to the L/C Sublimit. Each Letter of Credit shall be issued by the L/C Issuer, but each Revolving Lender shall be obligated to reimburse the L/C Issuer for such Revolving Lender’s Revolver Percentage of the amount of each drawing thereunder and, accordingly, each Letter of Credit shall constitute usage of the Revolving Credit Commitment of each Revolving Lender pro rata in an amount equal to its Revolver Percentage of the L/C Obligations then outstanding.
(b) Applications. At any time before the Revolving Credit Termination Date, the L/C Issuer shall, at the request of the Borrower, issue one or more Letters of Credit in U.S. Dollars, in a form satisfactory to the L/C Issuer, with expiration dates no later than the earlier of 12 months from the date of issuance (or which are cancelable not later than 12 months from the date of issuance and each renewal) or thirty (30) days prior to the Revolving Credit Termination Date (provided that such expiration date may extend up to 12 months beyond the Revolving Credit Termination Date if any such Letter of Credit is cash collateralized at one hundred three percent (103%) of its face amount (to cash collateralize fees and interest as well as the amount of the Letter of Credit) in the manner set forth in Section 9.4 no less than thirty (30) days prior to the Revolving Credit Termination Date), in an aggregate face amount as set forth above, upon the receipt of an application duly executed by the Borrower and, if such Letter of Credit is for the account of one of its Subsidiaries, such Subsidiary for the relevant Letter of Credit, in the form then customarily prescribed by the L/C Issuer for the Letter of Credit requested (each an “Application”). Notwithstanding anything contained in any Application to the contrary: (i) the Borrower shall pay fees in connection with each Letter of Credit as set forth in Section 2.1(b) hereof, (ii) except as otherwise provided in Section 1.8(b) or Section 1.14 hereof, unless an Event of Default exists, the L/C Issuer will not call for the funding by the Borrower of any amount under a Letter of Credit before being presented with a drawing thereunder, and (iii) if the L/C Issuer is not timely reimbursed for the amount of any drawing under a Letter of Credit on the date such drawing is paid, the Borrower’s obligation to reimburse the L/C Issuer for the amount of such drawing shall bear interest (which the Borrower hereby promises to pay) from and after the date such drawing is paid at a rate per annum equal to the sum of the Applicable Margin plus the Base Rate from time to time in effect (computed on the basis of a year of 365 or 366 days, as the case may be, and the actual number of days elapsed). If the L/C Issuer issues any Letter of Credit with an expiration
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date that is automatically extended unless the L/C Issuer gives notice that the expiration date will not so extend beyond its then scheduled expiration date, then the L/C Issuer will give such notice of non-renewal before the time necessary to prevent such automatic extension if before such required notice date: (i) the expiration date of such Letter of Credit if so extended would be after the date that is thirty (30) days prior to the Revolving Credit Termination Date (provided that such expiration date may extend up to 12 months beyond the Revolving Credit Termination Date if any such Letter of Credit is cash collateralized at one hundred three percent (103%) of its face amount (to cash collateralize fees and interest as well as the amount of the Letter of Credit) in the manner set forth in Section 9.4 no less than thirty (30) days prior to the Revolving Credit Termination Date), (ii) the Revolving Credit Commitments have been terminated, or (iii) a Default or an Event of Default exists and either the Administrative Agent or the Required Lenders (with notice to the Administrative Agent) have given the L/C Issuer instructions to not permit the extension of the expiration date of such Letter of Credit. The L/C Issuer agrees to issue amendments to the Letter(s) of Credit increasing the amount, or extending the expiration date, thereof at the request of the Borrower subject to the conditions of Section 7 hereof and the other terms of this Section 1.3. Notwithstanding anything contained herein to the contrary, if a default of any Revolving Lender’s obligations to fund under Section 1.3(c) exists or any Revolving Lender is at such time a Defaulting Lender hereunder, the L/C Issuer shall be under no obligation to issue, extend or amend any Letter of Credit unless the L/C Issuer has entered into arrangements with Borrower (including for cash collateralization as set forth above) or such Revolving Lender satisfactory to the L/C Issuer to eliminate the L/C Issuer’s risk with respect to such Revolving Lender.
(c) The Reimbursement Obligations. Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the L/C Issuer shall promptly notify the Borrower and the Administrative Agent thereof. Subject to Section 1.3(b) hereof, the obligation of the Borrower to reimburse the L/C Issuer for all drawings under a Letter of Credit (a “Reimbursement Obligation”) shall be governed by the Application related to such Letter of Credit, except that reimbursement shall be made by no later than 1:00 p.m. (Chicago time) on the date when each drawing is to be paid if the Borrower has been informed of such drawing by the L/C Issuer on or before 11:00 a.m. (Chicago time) on the date when such drawing is to be paid or, if notice of such drawing is given to the Borrower after 11:00 a.m. (Chicago time) on the date when such drawing is to be paid, by no later than 12:00 Noon (Chicago time) on the following Business Day, in immediately available funds at the Administrative Agent’s principal office in Chicago, Illinois or such other office as the Administrative Agent may designate in writing to the Borrower (who shall thereafter cause to be distributed to the L/C Issuer such amount(s) in like funds). If the Borrower does not make any such reimbursement payment on the date due and the Participating Lenders fund their participations therein in the manner set forth in Section 1.3(e) below, then all payments thereafter received by the Administrative Agent in discharge of any of the relevant Reimbursement Obligations shall be distributed in accordance with Section 1.3(e) below; provided, however, if the Borrower does not make any such reimbursement payment on the due date, the Borrower shall be deemed to have requested a Borrowing of Base Rate Loans under the Revolving Credit and, subject to satisfaction of the conditions set forth in Section 7.1 except for 7.1(c) hereof, a Revolving Loan shall be made on such date in the amount of the Reimbursement Obligations then due which Revolving Loan proceeds shall be applied to pay the Reimbursement Obligations then due.
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(d) Obligations Absolute. The Borrower's obligation to reimburse L/C Obligations as provided in subsection (c) of this Section shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement and the relevant Application under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the L/C Issuer under a Letter of Credit against presentation of a draft or other document that does not strictly comply with the terms of such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 1.3, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower's obligations hereunder, except for events or circumstances arising from the willful misconduct or gross negligence on behalf of the L/C Issuer. None of the Administrative Agent, the Revolving Lenders, or the L/C Issuer shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the L/C Issuer; provided that the foregoing shall not be construed to excuse the L/C Issuer from liability to the Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the L/C Issuer's (i) failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof or (ii) willful misconduct or gross negligence. The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of the L/C Issuer (as finally determined by a court of competent jurisdiction), the L/C Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the L/C Issuer may, in its sole good faith discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(e) The Participating Interests. Each Revolving Lender (other than the Revolving Lender acting as L/C Issuer in issuing the relevant Letter of Credit), by its acceptance hereof, severally agrees to purchase from the L/C Issuer, and the L/C Issuer hereby agrees to sell to each such Revolving Lender (a “Participating Lender”), an undivided percentage participating interest (a “Participating Interest”), to the extent of its Revolver Percentage, in each Letter of Credit issued by, and each Reimbursement Obligation owed to, the L/C Issuer. Upon any failure by the Borrower to pay any Reimbursement Obligation at the time required on the date the related drawing is to be paid, as set forth in Section 1.3(c) above, or if the L/C Issuer is required at any time to return to the Borrower or to a trustee, receiver, liquidator, custodian or other Person any portion of any payment of any Reimbursement Obligation, each Participating Lender shall, not
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later than the Business Day it receives a certificate in the form of Exhibit A hereto from the L/C Issuer (with a copy to the Administrative Agent) to such effect, if such certificate is received before 1:00 p.m. (Chicago time), or not later than 1:00 p.m. (Chicago time) the following Business Day, if such certificate is received after such time, pay to the Administrative Agent for the account of the L/C Issuer an amount equal to such Participating Lender’s Revolver Percentage of such unpaid or recaptured Reimbursement Obligation together with interest on such amount accrued from the date the related payment was made by the L/C Issuer to the date of such payment by such Participating Lender at a rate per annum equal to: (i) from the date the related payment was made by the L/C Issuer to the date two (2) Business Days after payment by such Participating Lender is due hereunder, the Federal Funds Rate for each such day and (ii) from the date two (2) Business Days after the date such payment is due from such Participating Lender to the date such payment is made by such Participating Lender, the Base Rate in effect for each such day. Each such Participating Lender shall thereafter be entitled to receive its Revolver Percentage of each payment received in respect of the relevant Reimbursement Obligation and of interest paid thereon, with the L/C Issuer retaining its Revolver Percentage thereof as a Revolving Lender hereunder. The several obligations of the Participating Lenders to the L/C Issuer under this Section 1.3 shall be absolute, irrevocable, and unconditional under any and all circumstances whatsoever and shall not be subject to any set-off, counterclaim or defense to payment which any Participating Lender may have or have had against the Borrower, the L/C Issuer, the Administrative Agent, any Revolving Lender or any other Person whatsoever. Without limiting the generality of the foregoing, such obligations shall not be affected by any Default or Event of Default or by any reduction or termination of any Revolving Credit Commitment of any Revolving Lender, and each payment by a Participating Lender under this Section 1.3 shall be made without any offset, abatement, withholding or reduction whatsoever.
(f) Indemnification. The Participating Lenders shall, to the extent of their respective Revolver Percentages, indemnify the L/C Issuer (to the extent not reimbursed by the Borrower) against any cost, expense (including reasonable counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from such L/C Issuer’s gross negligence or willful misconduct) that the L/C Issuer may suffer or incur in connection with any Letter of Credit issued by it. The obligations of the Participating Lenders under this Section 1.3(f) and all other parts of this Section 1.3 shall survive termination of this Agreement and of all Applications, Letters of Credit, and all drafts and other documents presented in connection with drawings thereunder.
(g) Xxxxxx of Requesting a Letter of Credit. The Borrower shall provide at least five (5) Business Days’ advance written notice to the Administrative Agent of each request for the issuance of a Letter of Credit, such notice in each case to be accompanied by an Application for such Letter of Credit properly completed and executed by the Borrower and, in the case of an extension or amendment or an increase in the amount of a Letter of Credit, a written request therefor, in a form acceptable to the Administrative Agent and the L/C Issuer, in each case, together with the fees called for by this Agreement. The Administrative Agent shall promptly notify the L/C Issuer of the Administrative Agent’s receipt of each such notice (and the L/C Issuer shall be entitled to assume that the conditions precedent to any such issuance, extension, amendment or increase have been satisfied unless notified to the contrary by the Administrative Agent or the Required Revolving Lenders) and the L/C Issuer shall promptly notify the Administrative Agent and the Revolving Lenders of the issuance of the Letter of Credit so requested.
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(h) Replacement of the L/C Issuer. The L/C Issuer may be replaced at any time by written agreement among the Borrower, the Administrative Agent, the replaced L/C Issuer and the successor L/C Issuer. The Administrative Agent shall notify the Revolving Lenders of any such replacement of the L/C Issuer. At the time any such replacement shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the replaced L/C Issuer. From and after the effective date of any such replacement (i) the successor L/C Issuer shall have all the rights and obligations of the L/C Issuer under this Agreement with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term “L/C Issuer” shall be deemed to refer to such successor or to any previous L/C Issuer, or to such successor and all previous L/C Issuers, as the context shall require. After the replacement of a L/C Issuer hereunder, the replaced L/C Issuer shall remain a party hereto and shall continue to have all the rights and obligations of a L/C Issuer under this Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not be required to issue additional Letters of Credit.
Section 1.4. Applicable Interest Rates.
(a) Base Rate Loans. Each Base Rate Loan made or maintained by a Lender shall bear interest (computed on the basis of a year of 365 or 366 days, as the case may be, and the actual days elapsed) on the unpaid principal amount thereof from the date such Loan is advanced, or created by conversion from a Eurodollar(i) Daily Simple SOFR Rate Loan or (ii) Term SOFR Rate Loan, until maturity (whether by acceleration or otherwise) at a rate per annum equal to the sum of the Applicable Margin plus the Base Rate from time to time in effect, payable by the Borrower on each Interest Payment Date and at maturity (whether by acceleration or otherwise).
“Base Rate” means, for any day, the rate per annum equal to the greatest of: (a) the rate of interest announced or otherwise established by the Administrative Agent from time to time as its prime commercial rate, or its equivalent, for U.S. Dollar loans to borrowers located in the United States as in effect on such day, with any change in the Base Rate resulting from a change in said prime commercial rate to be effective as of the date of the relevant change in said prime commercial rate (it being acknowledged and agreed that such rate may not be the Administrative Agent’s best or lowest rate), (b) the sum of (i) the Federal Funds Rate for such day, plus (ii) 1/2 of 1%, and (c) the LIBOR Quoted Rate for such day plus 1.00%. As used herein, the term “LIBOR Quoted Rate” means, for any day, the rate per annum equal to the quotient of (i) the rate per annum (rounded upwards, if necessary, to the next higher one hundred-thousandth of a percentage point) for deposits in U.S. Dollars for a one-month interest period as reported on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) as of 11:00 a.m. (London, England time) on such day (or, if such day is not a Business Day, on the immediately preceding Business Day) divided by (ii) one (1) minus the Eurodollar Reserve Percentage, provided that in no event shall the “LIBOR Quoted Rate” be less than 0.00%, unless such Loan is subject to a Hedging Agreement consisting of an interest rate swap.
“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, 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
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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 the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to the Administrative Agent on such day on such transactions as determined by the Administrative Agent; provided that in no event shall the Federal Funds Rate be less than 0.00%.
(b) EurodollarDaily Simple SOFR Rate Loans. Each EurodollarDaily Simple SOFR Rate Loan made or maintained by a Lender shall bear interest during each Interest Period it is outstanding (computed on the basis of a year of 360365 or 366 days, as the case may be, and the actual days elapsed) on the unpaid principal amount thereof from the date such Loan is advanced or continued, or created by conversion from a (i) Base Rate Loan or (ii)˜ Term SOFR Rate Loan, until maturity (whether by acceleration or otherwise) at a rate per annum equal to the sum of the Applicable Margin plus the Adjusted LIBOR applicable for such Interest PeriodDaily Simple SOFR from time to time in effect, payable by the Borrower on each Interest Payment Date and at maturity (whether by acceleration or otherwise).
“Adjusted LIBOR” means, for any Borrowing of Eurodollar Loans, a rate per annum determined in accordance with the following formula:
Adjusted LIBOR = LIBOR
1 - Eurodollar Reserve Percentage
“Eurodollar Reserve Percentage” means the maximum reserve percentage, expressed as a decimal, at which reserves (including, without limitation, any emergency, marginal, special, and supplemental reserves) are imposed by the Board of Governors of the Federal Reserve System (or any successor) on “eurocurrency liabilities”, as defined in such Board’s Regulation D (or any successor thereto), subject to any amendments of such reserve requirement by such Board or its successor, taking into account any transitional adjustments thereto. For purposes of this definition, the relevant Loans shall be deemed to be “eurocurrency liabilities” as defined in Regulation D without benefit or credit for any prorations, exemptions or offsets under Regulation D. The Eurodollar Reserve Percentage shall be adjusted automatically on and as of the effective date of any change in any such reserve percentage.
“LIBOR” means, for an Interest Period for a Borrowing of Eurodollar Loans, (a) the LIBOR Index Rate for such Interest Period, if such rate is available, and (b) if the LIBOR Index Rate cannot be determined, the arithmetic average of the rates of interest per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) at which deposits in U.S. Dollars in immediately available funds are offered to the Administrative Agent at 11:00 a.m. (London, England time) two (2) Business Days before the beginning of such Interest Period by three (3) or more major banks in the interbank eurodollar market selected by the Administrative Agent for delivery on the first day of and for a period equal to such Interest Period and in an amount equal or comparable to the principal amount of the Eurodollar Loan scheduled to be made as part of such Borrowing, provided that in no event shall “LIBOR” be less than 0.00%, unless such Loan is subject to a Hedging Agreement consisting of an interest rate swap.
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“LIBOR Index Rate” means, for any Interest Period, the greater of (a) the rate per annum (rounded upwards, if necessary, to the next higher one hundred-thousandth of a percentage point) for deposits in U.S. Dollars for a period equal to such Interest Period, as reported on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) as of 11:00 a.m. (London, England time) on the day two (2) Business Days before the commencement of such Interest Period and (b) 0% per annum, unless such Loan is subject to a Hedging Agreement consisting of an interest rate swap
(c) Term SOFR Rate Loans. Each Term SOFR Rate Loan made or maintained by a Lender shall bear interest during each Interest Period it is outstanding (computed on the basis of a year of 360 days and actual days elapsed) on the unpaid principal amount thereof from the date such Loan is advanced or continued, or created by conversion from a (i) Base Rate Loan or (ii) Daily Simple SOFR Rate Loan, until maturity (whether by acceleration or otherwise) at a rate per annum equal to the sum of the Applicable Margin plus the Adjusted Term SOFR applicable for such Interest Period, payable by the Borrower on each Interest Payment Date and at maturity (whether by acceleration or otherwise).
(cd) Rate Determinations. The Administrative Agent shall determine each interest rate applicable to the Loans and the Reimbursement Obligations hereunder, and its determination thereof shall be conclusive and binding except in the case of manifest error. In connection with the use or administration of Term SOFR and Daily Simple SOFR, the Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document. The Administrative Agent will promptly notify the Borrower and the Lenders of the effectiveness of any Conforming Changes in connection with the use or administration of Term SOFR or Daily Simple SOFR.
Section 1.5. Minimum Borrowing Amounts; Maximum EurodollarTerm SOFR Rate Loans. Each Borrowing of Base Rate Loans shall be in an amount not less than $100,000. Each Borrowing of Eurodollar Loans advanced, continued or converted to a Eurodollar Loan shall be in an amount equal to $100,000 or such greater amount which is an integral multiple of $100,000. Without the Administrative Agent’s consent, there shall not be more than eight (8) Borrowings of EurodollarTerm SOFR Rate Loans outstanding hereunder.
Section 1.6. Xxxxxx of Borrowing Loans and Designating Applicable Interest Rates.
(a) Notice to the Administrative Agent. The Borrower shall give notice to the Administrative Agent by no later than 10:00 a.m. (Chicago time): (i) at least three (3) U.S. Government Securities Business Days before the date on which the Borrower requests the Lenders to advance a Borrowing of EurodollarTerm SOFR Rate Loans and (ii) on the date the Borrower requests the Lenders to advance a Borrowing of Base Rate Loans or Daily Simple SOFR Rate Loans, provided that with respect to any Borrowing of 20272028 Term Loans or Borrowing of Revolving Loans to be made
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on the SeventhEighth Amendment Effective Date, the foregoing deadlines may be waived by the Administrative Agent. The Loans included in each Borrowing shall bear interest initially at the type of rate specified in such notice of a new Borrowing. Thereafter, subject to the terms and conditions hereof, the Borrower may from time to time elect to change or continue the type of interest rate borne by each Borrowing or, subject to the minimum amount requirement for each outstanding Borrowing set forth in Section 1.5 hereof, a portion thereof, as follows: (i) if such Borrowing is of EurodollarTerm SOFR Rate Loans, on the last day of the Interest Period applicable thereto, the Borrower may continue part or all of such Borrowing as EurodollarTerm SOFR Rate Loans or convert part or all of such Borrowing into Base Rate Loans or Daily Simple SOFR Rate Loans, or (ii) if such Borrowing is of Base Rate Loans or Daily Simple SOFR Rate Loans, on any Business Day, the Borrower may convert all or part of such Borrowing into EurodollarTerm SOFR Rate Loans for an Interest Period or Interest Periods specified by the Borrower. The Borrower shall give all such notices requesting the advance, continuation or conversion of a Borrowing to the Administrative Agent by telephone, telecopy, or other telecommunication device acceptable to the Administrative Agent (which notice shall be irrevocable once given and, if by telephone, shall be promptly confirmed in writing), substantially in the form attached hereto as Exhibit B (Notice of Borrowing) or Exhibit C (Notice of Continuation/Conversion), as applicable, or in such other form acceptable to the Administrative Agent. Notice of the continuation of a Borrowing of EurodollarTerm SOFR Rate Loans for an additional Interest Period or of the conversion of part or all of a Borrowing of Base Rate Loans or Daily Simple SOFR Rate into EurodollarTerm SOFR Rate Loans must be given by no later than 10:00 a.m. (Chicago time) at least three (3) U.S. Government Securities Business Days before the date of the requested continuation or conversion. All such notices concerning the advance, continuation or conversion of a Borrowing shall specify the date of the requested advance, continuation or conversion of a Borrowing (which shall be a Business Day), the amount of the requested Borrowing to be advanced, continued or converted, the type of Loans to comprise such new, continued or converted Borrowing and, if such Borrowing is to be comprised of EurodollarTerm SOFR Rate Loans, the Interest Period applicable thereto. No Borrowing of EurodollarTerm SOFR Rate Loans or Daily Simple SOFR Rate Loans shall be advanced, continued, or created by conversion if any Default or Event of Default then exists. The Borrower agrees that the Administrative Agent may rely on any such telephonic, telecopy or other telecommunication notice given by any person the Administrative Agent in good faith believes is an Authorized Representative without the necessity of independent investigation, and in the event any such notice by telephone conflicts with any written confirmation such telephonic notice shall govern if the Administrative Agent has acted in reliance thereon.
(b) Notice to the Lenders. The Administrative Agent shall give prompt telephonic, telecopy or other telecommunication notice to each Lender of any notice from the Borrower received pursuant to Section 1.6(a) above and, if such notice requests the Lenders to make EurodollarTerm SOFR Rate Loans or Daily Simple SOFR Rate Loans, the Administrative Agent shall give notice to the Borrower and each Lender by like means of the interest rate applicable thereto promptly after the Administrative Agent has made such determination.
(c) Xxxxxxxx’s Failure to Notify. If the Borrower fails to give notice pursuant to Section 1.6(a) above of the continuation or conversion of any outstanding principal amount of a Borrowing of EurodollarDaily Simple SOFR Rate Loans before the Interest Payment Date therefor within the period required by Section 1.6(a) and such Borrowing is not prepaid in accordance with Section
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1.8(a), the Borrower shall be deemed to have selected that such Borrowing shall automatically be continued as a Borrowing of a Daily Simple SOFR Rate Loan. If the Borrower fails to give notice pursuant to Section 1.6(a) above of the continuation or conversion of any outstanding principal amount of a Borrowing of Term SOFR Rate Loans before the last day of its then current Interest Period within the period required by Section 1.6(a) and such Borrowing is not prepaid in accordance with Section 1.8(a), the Borrower shall be deemed to have given the notice three (3) Business Days prior to the end of the then current Interest Period and such Borrowing shall automatically be continued as a Borrowing of a EurodollarTerm SOFR Rate Loan with a one (1) month Interest Period; provided that all Lenders are able to accommodate such one (1) month Interest Period and such EurodollarTerm SOFR Rate Loan shall be subject to the funding indemnity set forth in Section 1.11 hereof in the event it is prepaid prior to the end of the Interest Period. In the event the Borrower fails to give notice pursuant to Section 1.6(a) above of a Borrowing equal to the amount of a Reimbursement Obligation and has not notified the Administrative Agent by 12:00 noon (Chicago time) on the day such Reimbursement Obligation becomes due that it intends to repay such Reimbursement Obligation through funds not borrowed under this Agreement, the Borrower shall be deemed to have requested a Borrowing of Base Rate Loans under the Revolving Credit (or at the option of the Swing Line Lender under the Swing Line) on such day in the amount of the Reimbursement Obligation then due, which Borrowing shall be applied to pay the Reimbursement Obligation then due.
(d) Disbursement of Loans. Not later than 1:00 p.m. (Chicago time) on the date of any requested advance of a new Borrowing, subject to Section 7 hereof, each Lender shall make available its Loan comprising part of such Borrowing in funds immediately available at the principal office of the Administrative Agent in Chicago, Illinois (or at such other location as the Administrative Agent shall designate). The Administrative Agent shall make the proceeds of each new Borrowing available to the Borrower no later than 2:00 p.m. (Chicago time) on the date of such Borrowing as instructed by the Borrower.
(e) Administrative Agent Reliance on Lender Funding. Unless the Administrative Agent shall have been notified by a Lender prior to (or, in the case of a Borrowing of Base Rate Loans or Daily Simple SOFR Rate Loans, by 1:00 p.m. (Chicago time) on) the date on which such Lender is scheduled to make payment to the Administrative Agent of the proceeds of a Loan (which notice shall be effective upon receipt) that such Lender does not intend to make such payment, the Administrative Agent may assume that such Lender has made such payment when due and the Administrative Agent may in reliance upon such assumption (but shall not be required to) make available to the Borrower the proceeds of the Loan to be made by such Lender and, if any Lender has not in fact made such payment to the Administrative Agent, (1) such Lender shall, on demand, pay to the Administrative Agent the amount made available to the Borrower attributable to such Lender together with interest thereon in respect of each day during the period commencing on the date such amount was made available to the Borrower and ending on (but excluding) the date such Lender pays such amount to the Administrative Agent at a rate per annum equal to: (i) from the date the related advance was made by the Administrative Agent to the date two (2) Business Days after payment by such Lender is due hereunder, the Federal Funds Rate for each such day and (ii) from the date two (2) Business Days after the date such payment is due from such Lender to the date such payment is made by such Lender, the Base Rate or Daily Simple SOFR, as applicable, in effect for each such day, and (2) the Administrative Agent shall notify the Borrower of such
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Xxxxxx’s failure to pay. If such amount is not received from such Lender by the Administrative Agent immediately upon demand, the Borrower will, on demand, promptly, and in no event later than 11:00 a.m. (Chicago time) on the date that is two (2) Business Days following such demand, repay to the Administrative Agent the proceeds of the Loan attributable to such Lender with interest thereon at a rate per annum equal to the interest rate applicable to the relevant Loan, which payment may be in the form of a Base Rate Loan or Daily Simple SOFR Rate Loan under this Agreement, but without such payment being considered a payment or prepayment of a Loan under Section 1.11 hereof so that the Borrower will have no liability under such Section with respect to such payment.
Section 1.7. Maturity of Loans. Each Revolving Loan and Swing Loan, both for principal and interest not sooner paid or accelerated after the occurrence of an Event of Default, shall mature and be due and payable by the Borrower on the Revolving Credit Termination Date. Each Term Loan, both for principal and interest not sooner paid or accelerated after the occurrence of an Event of Default, shall mature and be due and payable on the Term Loan Maturity Date.
Section 1.8. Prepayments.
(a) Optional. The Borrower may prepay any Loan in whole or in part (but, if in part, then: (i) if such Borrowing is of Base Rate Loans, in an amount not less than $100,000, (ii) if such Borrowing is of EurodollarTerm SOFR Rate Loans, in an amount not less than $100,000, (iii) if such Borrowing is of Daily Simple SOFR Rate Loans, in an amount not less than $100,000, and (iiiiv) in each case, in an amount such that the minimum amount required for a Borrowing pursuant to Section 1.5 hereof remains outstanding) any Borrowing of EurodollarTerm SOFR Rate Loans at any time upon three (3) Business Days prior notice by the Borrower to the Administrative Agent, or, in the case of a Borrowing of Base Rate Loans or Daily Simple SOFR Rate Loans, notice delivered by the Borrower to the Administrative Agent no later than 10:00 a.m. (Chicago time) on the date of prepayment (or, in any case, such shorter period of time then agreed to by the Administrative Agent), such prepayment to be made by the payment of the principal amount to be prepaid and, in the case of any EurodollarTerm SOFR Rate Loans, accrued interest thereon to the date fixed for prepayment plus any amounts due the Lenders under Section 1.11 hereof (if any).
(b) Mandatory.
(i) If at any time the sum of the unpaid principal balance of the Loans, Swing Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, as contained in the most recent Borrowing Base Certificate delivered in accordance with Section 8.5(d) hereof, the Borrower shall promptly, and in no event later than 11:00 a.m. (Chicago time) on the date that is two (2) Business Days following such delivery, and without notice or demand pay the amount of the excess to the Administrative Agent for the account of the Lenders as a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans and Swing Loans until paid in full, and then to the Term Loans and the Incremental Term Loans (if any) on a combined ratable basis with respect to all such Loans until such Loans are paid in full, with any remaining balance to be held by the Administrative Agent in the Collateral Account as security for the Obligations owing with respect to the Letters of Credit.
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(ii) If at any time the sum of the unpaid principal balance of the Revolving Loans, Swing Loans and the L/C Obligations then outstanding shall be in excess of the Revolving Credit Commitment, the Borrower shall promptly, and in no event later than 11:00 a.m. (Chicago time) on such Business Day, and without notice or demand pay the amount of the excess to the Administrative Agent for the account of the Lenders as a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans and Swing Loans until paid in full, with any remaining balance to be held by the Administrative Agent in the Collateral Account as security for the Obligations owing with respect to the Letters of Credit.
(iii) Unless the Borrower otherwise directs, prepayments of Loans under this Section 1.8(b) shall be applied first to Borrowings of Base Rate Loans until payment in full thereof, then to Daily Simple SOFR Rate Loans until payment in full thereof, with any balance applied to Borrowings of EurodollarTerm SOFR Rate Loans in the order in which their Interest Periods expire. Each prepayment of Loans under this Section 1.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Eurodollar LoansTerm SOFR Rate Loan, accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 1.11 hereof (if any). Each prefunding of L/C Obligations shall be made in accordance with Section 9.4 hereof.
(c) Reborrowing. Any amount of Revolving Loans or Swing Loans paid or prepaid before the Revolving Credit Termination Date may, subject to the terms and conditions of this Agreement, be borrowed, repaid and borrowed again. Any amount of the Term Loans or Incremental Term Loans paid or prepaid shall not be reborrowed.
Section 1.9. Default Rate. Notwithstanding anything to the contrary contained herein, while any Event of Default exists or after acceleration, if so directed by the Required Lenders, the Borrower shall pay interest (after as well as before entry of judgment thereon to the extent permitted by law) on the principal amount of all Loans and Reimbursement Obligations, and letter of credit fees at a rate per annum equal to:
(a) for any Base Rate Loan, the sum of 2.0% plus the Applicable Margin plus the Base Rate from time to time in effect;
(b) for any Eurodollar
(b) for any Daily Simple SOFR Rate Loan, the sum of 2.0% plus the Applicable Margin plus Daily Simple SOFR from time to time in effect;
(c) for any Term SOFR Rate Loan, the sum of 2.0% plus the rate of interest in effect thereon at the time of such default until the end of the Interest Period applicable thereto plus the Applicable Margin and, thereafter, at a rate per annum equal to the sum of 2.0% plus the Applicable Margin for Base Rate Loans plus the Base Rate from time to time in effect;
(cd) for any Reimbursement Obligation, the sum of 2.0% plus the amounts due under Section 1.3 with respect to such Reimbursement Obligation; and
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(de) for any Letter of Credit, the sum of 2.0% plus the letter of credit fee due under Section 2.1 with respect to such Letter of Credit;
provided, however, that in the absence of acceleration, any adjustments pursuant to this Section 1.9 shall be made by the Administrative Agent, acting at the request or with the consent of the Required Lenders, with written notice to the Borrower. While any Event of Default exists or after acceleration, interest shall be paid on the demand of the Administrative Agent at the request or with the consent of the Required Lenders.
Section 1.10. Evidence of Indebtedness. (a) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender from time to time, including the amounts of principal and interest payable and paid to such Xxxxxx from time to time hereunder.
(b) The Administrative Agent shall also maintain accounts in which it will record (i) the amount of each Loan made hereunder, the type thereof and the Interest Period with respect thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder from the Borrower and each Lender’s share thereof.
(c) The entries maintained in the accounts maintained pursuant to paragraphs (a) and (b) above shall be prima facie evidence of the existence and amounts of the Obligations therein recorded absent manifest error; provided, however, that the failure of the Administrative Agent or any Lender to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Obligations in accordance with their terms.
(d) Any Lender may request that its Loans be evidenced by a promissory note or notes in the forms of Exhibit D-1 (in the case of its Revolving Loans, a “Revolving Note” and collectively, the “Revolving Notes”), Exhibit D-2 (in the case of its Swing Loans, a “Swing Note”), Exhibit D-3 (in the case of its Term Loan and referred to herein as a “Term Note” and collectively the “Term Notes”) or Exhibit D-4 (in the case of its Incremental Term Loans and referred to herein as a “Incremental Term Note” and collectively the “Incremental Term Notes”) as applicable (Revolving Notes, the Swing Note, Term Notes and Incremental Term Notes being herein referred to collectively as the “Notes” and individually as a “Note”). In such event, the Borrower shall prepare, execute and deliver to such Lender a Note payable to such Lender or its registered assigns in the amount of the relevant Revolving Credit Commitment, Swing Line Sublimit, Term Loan Commitment or Term Loan, as then applicable, or Incremental Term Loan or Incremental Term Loan Commitment, as then applicable. Thereafter, the Loans evidenced by such Note or Notes and interest thereon shall at all times (including after any assignment pursuant to Section 12.12) be represented by one or more Notes payable to the order of the payee named therein or any assignee pursuant to Section 12.12, except to the extent that any such Lender or assignee subsequently returns any such Note for cancellation and requests that such Loans once again be evidenced as described above.
Section 1.11. Funding Indemnity. If any Lender shall incur any loss, cost or reasonable expense (including, without limitation, any loss, cost or reasonable expense incurred by reason of
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the liquidation or re-employment of deposits or other funds acquired by such Lender to fund or maintain any EurodollarTerm SOFR Rate Loan or the relending or reinvesting of such deposits or amounts paid or prepaid to such Lender) as a result of:
(a) any payment, prepayment or conversion of a EurodollarTerm SOFR Rate Loan on a date other than the last day of its Interest Period,
(b) any failure (because of a failure to meet the conditions of Section 7 or otherwise) by the Borrower to borrow or continue a EurodollarTerm SOFR Rate Loan, or to convert a Base Rate Loan into a EurodollarTerm SOFR Rate Loan, on the date specified in a notice given pursuant to Section 1.6(a) hereof,
(c) any failure by the Borrower to make any payment of principal on any EurodollarTerm SOFR Rate Loan when due (whether by acceleration or otherwise), or
(d) any acceleration of the maturity of a EurodollarTerm SOFR Rate Loan as a result of the occurrence of any Event of Default hereunder,
then, upon the demand of such Lender, the Borrower shall pay to such Lender such amount as will reimburse such Lender for such loss, cost or reasonable expense. If any Lender makes such a claim for compensation, it shall provide to the Borrower, with a copy to the Administrative Agent, a certificate setting forth the amount of such loss, cost or reasonable expense in reasonable detail and the amounts shown on such certificate shall be conclusive if reasonably determined absent manifest error.
Section 1.12. Commitment Terminations.
(a) Optional Revolving Credit Terminations. The Borrower shall have the right at any time and from time to time, upon five (5) Business Days prior written notice to the Administrative Agent (or such shorter period of time agreed to by the Administrative Agent), to terminate the Revolving Credit Commitments without premium or penalty and in whole or in part, any partial termination to be (i) in an amount not less than $1,000,000 and (ii) allocated ratably among the Revolving Lenders in proportion to their respective Revolver Percentages, provided that the Revolving Credit Commitments may not be reduced to an amount less than the sum of the aggregate principal amount of Revolving Loans, Swing Loans and L/C Obligations then outstanding. Any termination of the Revolving Credit Commitments below the L/C Sublimit or the Swing Line Sublimit then in effect shall reduce the L/C Sublimit or the Swing Line Sublimit, as applicable, by a like amount. The Administrative Agent shall give prompt notice to each Revolving Lender of any such termination of the Revolving Credit Commitments.
(b) Any termination of the Revolving Credit Commitments pursuant to this Section 1.12 may not be reinstated.
Section 1.13. Substitution of Lenders. In the event (a) the Borrower receives a claim from any Lender for compensation under Section 10.3 or 12.1 hereof, (b) the Borrower receives notice from any Lender of any illegality pursuant to Section 10.1 hereof, (c) any Lender is then a
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Defaulting Lender or such Lender is a Subsidiary or Affiliate of a Person who has been deemed insolvent or becomes the subject of a bankruptcy or insolvency proceeding or a receiver or conservator has been appointed for any such Person, or (d) a Lender fails to consent to an amendment or waiver requested under Section 12.13 hereof at a time when the Required Lenders have approved such amendment or waiver (any such Lender referred to in clause (a), (b), (c), or (d) above being hereinafter referred to as an “Affected Lender”), the Borrower may, in addition to any other rights the Borrower may have hereunder or under applicable law, require, at its expense, any such Affected Lender to assign, at par, without recourse (other than with respect to claims or Liens arising by, through or under such Affected Lender), all of its interest, rights, and obligations hereunder (including all of its Revolving Credit Commitments, Term Loan Commitments, if any, and Incremental Term Loan Commitments, if any, and the Loans and participation interests in Letters of Credit and other amounts at any time owing to it hereunder and the other Loan Documents) to an Eligible Assignee specified by the Borrower, provided that (i) such assignment shall not conflict with or violate any law, rule or regulation or order of any court or other governmental authority, (ii) the Borrower shall have paid to the Affected Lender all monies (together with amounts due such Affected Lender under Section 1.11 hereof as if the Loans owing to it were prepaid rather than assigned) other than such principal owing to it hereunder, and (iii) the assignment is entered into in accordance with, and subject to the consents required by, Section 12.12 hereof (provided any reimbursable expenses due thereunder shall be paid by the Borrower and any assignment fees shall be waived).
Section 1.14. Defaulting Lenders. Anything contained herein to the contrary notwithstanding, in the event that any Lender at any time is a Defaulting Lender, then (a) during any Defaulting Lender Period with respect to such Defaulting Lender, such Defaulting Lender shall be deemed not to be a “Lender” for purposes of voting on any matters (including the granting of any consents or waivers) with respect to any of the Loan Documents and such Defaulting Lender’s Revolving Credit Commitments shall be excluded for purposes of determining “Required Lenders” (provided that the foregoing shall not permit an increase in such Lender’s Revolving Credit Commitments or an extension of the maturity date of such Lender’s Loans or other Obligations without such Lender’s consent); (b) to the extent permitted by applicable law, until such time as the Defaulting Lender Excess with respect to such Defaulting Lender shall have been reduced to zero, any voluntary prepayment of the Loans shall, if the Administrative Agent so directs at the time of making such voluntary prepayment, be applied to the Loans of other Lenders as if such Defaulting Lender had no Loans outstanding; (c) such Defaulting Lender’s Revolving Credit Commitments and outstanding Loans shall be excluded for purposes of calculating any commitment fee payable to Lenders pursuant to Section 2.1 in respect of any day during any Defaulting Lender Period with respect to such Defaulting Lender, and such Defaulting Lender shall not be entitled to receive any fee pursuant to Section 2.1 with respect to such Defaulting Lender’s Revolving Credit Commitment in respect of any Defaulting Lender Period with respect to such Defaulting Lender (and any Letter of Credit fee otherwise payable to a Lender who is a Defaulting Lender shall instead be paid to the L/C Issuer for its use and benefit); (d) the utilization of Revolving Credit Commitments as at any date of determination shall be calculated as if such Defaulting Lender had funded all Loans of such Defaulting Lender; and (e) if so requested by the L/C Issuer at any time during the Defaulting Lender Period with respect to such Defaulting Lender, the Borrower shall deliver to the Administrative Agent cash collateral in an amount equal to such Defaulting Lender’s Revolver Percentage of L/C Obligations then outstanding (to be, held by the
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Administrative Agent as set forth in Section 9.4 hereof). No Revolving Credit Commitment of any Lender shall be increased or otherwise affected, and, except as otherwise expressly provided in this Section 1.14, performance by the Borrower of its obligations hereunder and the other Loan Documents shall not be excused or otherwise modified as a result of the operation of this Section 1.14. The rights and remedies against a Defaulting Lender under this Section 1.14 are in addition to other rights and remedies which the Borrower may have against such Defaulting Lender and which the Administrative Agent or any Lender may have against such Defaulting Lender.
Section 1.15. Increase in Revolving Credit Commitments and Incremental Term Loan Commitments . The Borrower may, from time to time, on any Business Day prior to the Revolving Credit Termination Date or Term Loan Maturity Date, as applicable, increase the aggregate amount of the Revolving Credit Commitments or establish one or more new term loan commitments (any such new term loan commitment, an “Incremental Term Loan Commitment”), respectively, by delivering a Commitment Amount Increase Request substantially in the form attached hereto as Exhibit H or in such other form acceptable to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolving Credit Commitment Amount Increase”) or establishment of such Incremental Term Loan Commitment providing for the advance of new term loans (individually an “Incremental Term Loan” and collectively for all the Incremental Term Loan Lenders the “Incremental Term Loans”), identifying one or more additional Lenders (or additional Revolving Credit Commitments for existing Revolving Lenders, or by a combination of existing Lenders and additional Lenders, and the amount of each such Lender’s additional Revolving Credit Commitment or Incremental Term Loan Commitment, as applicable); provided, however, that (i) the aggregate amount of the Revolving Credit Commitments shall not be increased to an amount in excess of $300,000,000750,000,000, (ii) the aggregate amount of Term Loans may not exceed $400,000,000500,000,000, (iii) each Revolving Credit Commitment Amount Increase or Incremental Term Loan request shall be in an amount of not less than $5,000,000 or such lesser amount as approved by the Administrative Agent[reserved], (iv) no Default or Event of Default shall have occurred and be continuing at the time of the request or the effective date of the Revolving Credit Commitment Amount Increase or advance of the Incremental Term Loan and (v) all representations and warranties contained in Section 6 hereof shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) at the time of such request and on the effective date of such Revolving Credit Commitment Amount Increase or advance of such Incremental Term Loans, except for representations and warranties that relate to a prior date, which shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) as of the applicable date on which they were made. The effective date of the Revolving Credit Commitment Amount Increase or advance of any Incremental Term Loan shall be agreed upon by the Borrower and the Administrative Agent. Upon the effectiveness of any Revolving Credit Commitment Amount Increase or advance of the Incremental Term Loan, the new Lender(s) (or, if applicable, existing Lender(s)) shall advance Revolving Loans or Incremental Term Loans in an amount sufficient such that after giving effect to its advance each Lender shall have outstanding its Revolver Percentage of Revolving Loans and Incremental Term Loan Percentage of Incremental Term Loans, as applicable. It shall be a condition to such effectivenessIn the event that if any EurodollarTerm SOFR Rate Loans are
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outstanding on the date of such effectiveness, and any Lender determines that such EurodollarTerm SOFR Rate Loans shall beare deemed to be prepaid on such date and the Borrower shall pay any, each Lender hereby waives payment of all amounts, if any, owing to the Lenders pursuant to Section 1.11 hereof. In the event that the Borrower shall have terminated any portion of the Revolving Credit Commitments pursuant to Section 1.11 hereof, the amount available for a Revolving Credit Commitment Amount Increase shall be reduced by the terminated commitment amount. The Borrower agrees to pay any reasonable expenses of the Administrative Agent relating to any Revolving Credit Commitment Amount Increase or Incremental Term Loan and arrangement fees related thereto as agreed upon in writing between Administrative Agent and the Borrower, if any. Notwithstanding anything herein to the contrary, (x) no Lender shall have any obligation to increase its Revolving Credit Commitment or to provide an Incremental Term Loan Commitment and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to increase its Revolving Credit Commitment or to provide any Incremental Term Loan Commitment, (y) no declining Lender shall have any consent rights with respect to such Revolving Credit Commitment Amount Increase or such Incremental Term Loan Commitment, as applicable, and (z) any new Lender shall be acceptable to the Administrative Agent (to the extent the consent of the Administrative Agent would be required in connection with an assignment to such new Lender under Section 12.12(a)(iii) hereof) with such consent not to be unreasonably withheld or delayed. Upon the effectiveness thereof, Schedule 1I shall be deemed amended to reflect any Revolving Credit Commitment Amount Increase and any Incremental Term Loan Commitment, as applicable. Subject to Section 7.1 hereof, on the effective date of any new Incremental Term Loan Commitments, any new or existing Lender with an Incremental Term Loan Commitment shall advance in a single Borrowing an Incremental Term Loan in the amount of its new Incremental Term Loan Commitment. The Borrower shall deliver or cause to be delivered any documents reasonably requested by the Administrative Agent in connection with any such transaction and consistent with Section 7.2 hereof.
The Incremental Term Loans (a) shall rank pari passu in right of payment and of security, if any, with the Revolving Loans and the existing Term Loans and shall not be secured by any additional collateral or guaranteed by any additional Guarantors than the existing Term Loans, (b) shall have (i) a final maturity date no earlier than the Term Loan Maturity Date and (ii) a weighted average life not less than the then remaining weighted average life to maturity of the Term Loans, (c) shall be subject to covenants and events of default that are identical to or not materially more restrictive to the Borrower than those in the existing Term Loan (except to the extent such terms apply only after the latest maturity date of the existing Term Loans) and (d) shall have any mandatory prepayments made pursuant to Section 1.8(b) hereof allocated ratably between the existing Term Loans and the Incremental Term Loans (if any); provided, that except as set forth above, the terms and conditions applicable to Incremental Term Loans (including interest rates and amortization applicable thereto) shall be determined by the Borrower, the Administrative Agent and the Lenders providing such Incremental Term Loans.
Section 1.16. Extension of Revolving Credit Termination Date. Borrower may, by notice to Administrative Agent (which shall promptly deliver a copy to each of the Lenders) given at least thirty (30) days and not more than ninety (90) days prior to the then Revolving Credit Termination Date (the “Existing Commitment Termination Date”), request that Lenders extend the Existing
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Commitment Termination Date for onetwo (2) additional one-year periodsix-month periods. Upon the Borrower’s timely delivery of such notice to Administrative Agent and provided, that (i) no Default or Event of Default has occurred and is continuing (both on the date the notice is delivered and on the then Existing Commitment Revolving Credit Termination Date), (ii) the Borrower and the Subsidiaries are in compliance with all covenants contained in Section 8 hereof, (iii) all representations and warranties contained in Section 6 hereof shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality in which case such representation or warranty shall be true and correct in all respects) on the date the notice is delivered and on the then Existing Commitment Termination Date except for representations and warranties that relate to a prior date, which shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality in which case such representation or warranty shall be true and correct in all respects) as of the applicable date on which they were made and (iv) the Borrower has paid in immediately available funds the Extension Fee on or prior to the first day of any requested extension period, then the Revolving Credit Termination Date shall be extended to the firstsix-month anniversary of the then Existing Commitment Termination Date. Should the Revolving Credit Termination Date be extended, the terms and conditions of this Agreement will apply during any such extension period, and from and after the date of such extension, the term Revolving Credit Termination Date shall mean the last day of the extended term.
Section 1.17. Swing Loans.
(a) Generally. Subject to the terms and conditions hereof, as part of the Revolving Credit, the Swing Line Lender may, in its sole discretion, make loans in U.S. Dollars to the Borrower under the Swing Line (individually a “Swing Loan” and collectively the “Swing Loans”) which shall not in the aggregate at any time outstanding exceed the Swing Line Sublimit; provided, that if the Swing Line Lender declines to make a Swing Loan, the Borrower shall be deemed to have requested a Borrowing of a BaseDaily Simple SOFR Rate Loan under Section 1.6 hereof in the amount of such requested Swing Loan. Swing Loans may be availed of from time to time and borrowings thereunder may be repaid and used again during the period ending on the Revolving Credit Termination Date. Each Swing Loan shall be in a minimum amount of $100,000 or such greater amount which is an integral multiple of $100,000.
(b) Interest on Swing Loans. Each Swing Loan shall bear interest until maturity (whether by acceleration or otherwise) at a rate per annum equal to the sum of the Base RateDaily Simple SOFR plus the Applicable Margin for BaseDaily Simple SOFR Rate Loans under the Revolving Credit as from time to time in effect (computed on the basis of a year of 365 or 366 days, as the case may be, for the actual number of days elapsed). Interest on each Swing Loan shall be due and payable by the Borrower on each Interest Payment Date and at maturity (whether by acceleration or otherwise).
(c) Requests for Swing Loans. The Borrower shall give the Administrative Agent prior notice (which may be written or oral) no later than 12:00 Noon (Chicago time) on the date upon which the Borrower requests that any Swing Loan be made, of the amount and date of such Swing Loan. The Administrative Agent shall promptly advise the Swing Line Lender of any such notice received from the Borrower. Subject to the terms and conditions hereof, the proceeds of each
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Swing Loan extended to the Borrower shall be deposited or otherwise wire transferred as agreed to by the Borrower, the Administrative Agent, and the Swing Line Lender. Anything contained in the foregoing to the contrary notwithstanding, the undertaking of the Swing Line Lender to make Swing Loans shall be subject to all of the terms and conditions of this Agreement (provided that the Swing Line Lender shall be entitled to assume that the conditions precedent to an advance of any Swing Loan have been satisfied unless notified to the contrary by the Administrative Agent or the Required Revolving Lenders).
(d) Refunding Loans. In its sole and absolute discretion, the Swing Line Lender may at any time, on behalf of the Borrower (which hereby irrevocably authorizes the Swing Line Lender to act on its behalf for such purpose) and with notice to the Borrower and the Administrative Agent, request each Revolving Lender to make a Revolving Loan in the form of a BaseDaily Simple SOFR Rate Loan in an amount equal to such Revolving Lender’s Revolver Percentage of the amount of the Swing Loans outstanding on the date such notice is given. Unless an Event of Default described in Section 9.1(j) or 9.1(k) exists with respect to the Borrower, regardless of the existence of any other Event of Default, each Revolving Lender shall make the proceeds of its requested Revolving Loan available to the Administrative Agent for the account of the Swing Line Lender, in immediately available funds, at the Administrative Agent’s office in Chicago, Illinois (or such other location designated by the Administrative Agent), before 12:00 Noon (Chicago time) on the Business Day following the day such notice is given. The Administrative Agent shall promptly remit the proceeds of such Borrowing to the Swing Line Lender to repay the outstanding Swing Loans.
(e) Participations. If any Revolving Lender refuses or otherwise fails to make a Revolving Loan when requested by the Swing Line Lender pursuant to Section 1.17(d) above (because an Event of Default described in Section 9.1(j) or 9.1(k) exists with respect to the Borrower or otherwise), such Revolving Lender will, by the time and in the manner such Revolving Loan was to have been funded to the Swing Line Lender, purchase from the Swing Line Lender an undivided participating interest in the outstanding Swing Loans in an amount equal to its Revolver Percentage of the aggregate principal amount of Swing Loans that were to have been repaid with such Revolving Loans. Each Revolving Lender that so purchases a participation in a Swing Loan shall thereafter be entitled to receive its Revolver Percentage of each payment of principal received on the Swing Loan and of interest received thereon accruing from the date such Revolving Lender funded to the Swing Line Lender its participation in such Loan. The several obligations of the Revolving Lenders under this Section shall be absolute, irrevocable, and unconditional under any and all circumstances whatsoever and shall not be subject to any set-off, counterclaim or defense to payment which any Revolving Lender may have or have had against the Borrower, any other Revolving Lender, or any other Person whatsoever. Without limiting the generality of the foregoing, such obligations shall not be affected by any Default or Event of Default or by any reduction or termination of the Revolving Credit Commitments of any Revolving Lender, and each payment made by a Lender under this Section shall be made without any offset, abatement, withholding, or reduction whatsoever.
(f) Sweep to Loan Arrangement. So long as a Sweep to Loan Arrangement is in effect, and subject to the terms and conditions thereof, Swing Loans may be advanced and prepaid hereunder notwithstanding any notice, minimum amount, or funding and payment location
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requirements hereunder for any advance of Swing Loans or for any prepayment of any Swing Loans. The making of any such Swing Loans shall otherwise be subject to the other terms and conditions of this Agreement. All Swing Loans advanced or prepaid pursuant to such Sweep to Loan Arrangement shall be BaseDaily Simple SOFR Rate Loans; and, so long as a Sweep to Loan Arrangement is in effect, all Swing Loans (whether or not advanced pursuant to the Sweep to Loan Arrangement) shall be BaseDaily Simple SOFR Rate Loans. The Swing Line Lender shall have the right in its sole discretion to suspend or terminate the making and/or prepayment of Swing Loans pursuant to such Sweep to Loan Arrangement with notice to the Sweep Depositary and the Borrower (which may be provided on a same-day basis), whether or not any Default or Event of Default exists. The Swing Line Lender shall not be liable to the Borrower or any other Person for any losses directly or indirectly resulting from events beyond the Swing Line Lender’s reasonable control, including without limitation any interruption of communications or data processing services or legal restriction or for any special, indirect, consequential or punitive damages in connection with any Sweep to Loan Arrangement.
Section 1.18. ESG Amendment. After the Closing Date:
(a) the Borrower, in consultation with the Sustainability Structuring Agent, shall be entitled to establish specified Key Performance Indicators (“KPIs”) with respect to certain Environmental, Social and Governance (“ESG”) targets of the Borrower and its Subsidiaries. The Sustainability Structuring Agent and the Borrower may amend this Agreement (such amendment, the “ESG Amendment”) solely for the purpose of incorporating the KPIs and other related provisions (the “ESG Pricing Provisions”) into this Agreement, and any such amendment shall become effective at 5:00 p.m. on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrower unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent (who shall promptly notify the Borrower) written notice that such Required Lenders object to such ESG Amendment. In the event that Required Lenders deliver a written notice objecting to any such ESG Amendment, an alternative ESG Amendment may be effectuated with the consent of the Required Lenders, the Borrower and the Sustainability Structuring Agent. Upon effectiveness of any such ESG Amendment, based on the Borrower’s performance against the KPIs, certain adjustments to the Applicable Margin may be made; provided that the amount of any such adjustments made pursuant to an ESG Amendment shall not result in a decrease of more than 2.5 basis points in the Applicable Margin. The pricing adjustments pursuant to the KPIs will require, among other things, reporting and validation of the measurement of the KPIs in a manner that is aligned with the Sustainability Linked Loan Principles (as published in March 2022 by the Loan Market Association, Asia Pacific Loan Market Association and Loan Syndications & Trading Association) at the time of the ESG Amendment and is to be mutually agreed between the Borrower and the Sustainability Structuring Agent (each acting reasonably). Following the effectiveness of the ESG Amendment, any modification to the ESG Pricing Provisions which does not have the effect of reducing the Applicable Margin to a level otherwise permitted by this Section shall be subject only to the consent of the Required Lenders.
(b) The Sustainability Structuring Agent will (i) assist the Borrower in
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determining the ESG Pricing Provisions in connection with the ESG Amendment and (ii) assist the Borrower in preparing informational materials focused on ESG to be used in connection with the ESG Amendment.
SECTION 2. FEES.
Section 2.1. Fees.
(a) Revolving Credit Unused Commitment Fee. The Borrower shall pay to the Administrative Agent for the ratable account of the Revolving Lenders in accordance with their Revolver Percentages an unused commitment fee at a rate per annum equal to (x) 0.15% if the average daily Unused Revolving Credit Commitments are less than or equal to 50% of the Revolving Credit Commitments then in effect and (y) 0.25% if the average daily Unused Revolving Credit Commitments are greater than 50% of the Revolving Credit Commitments then in effect (computed on the basis of a year of 360 days and the actual number of days elapsed) and determined based on the average daily Unused Revolving Credit Commitments during such previous quarter. Such commitment fee shall be payable quarterly in arrears on the last day of each March, June, September, and December in each year (commencing on the first such date occurring after the date hereof) and on the Revolving Credit Termination Date, unless the Revolving Credit Commitments are terminated in whole on an earlier date, in which event the commitment fee for the period to the date of such termination in whole shall be calculated and paid on the date of such termination.
(b) Letter of Credit Fees. On the date of issuance or extension, or increase in the amount, of any Letter of Credit pursuant to Section 1.3 hereof, the Borrower shall pay to the L/C Issuer for its own account a fronting fee equal to 0.200.15% of the face amount of (or of the increase in the face amount of) such Letter of Credit. Quarterly in arrears, on the last day of each March, June, September, and December, commencing on the first such date occurring after the date hereof, the Borrower shall pay to the Administrative Agent, for the ratable benefit of the Revolving Lenders in accordance with their Revolver Percentages, a letter of credit fee at a rate per annum equal to the Applicable Margin (computed on the basis of a year of 360 days and the actual number of days elapsed) in effect during each day of such quarter applied to the daily average face amount of Letters of Credit outstanding during such quarter. If no Letters of Credit were outstanding during such quarter, no such fee shall be owed. In addition, the Borrower shall pay to the L/C Issuer for its own account the L/C Issuer’s standard issuance, drawing, negotiation, amendment, cancellation, assignment, and other administrative fees for each Letter of Credit as established by the L/C Issuer from time to time.
(c) Administrative Agent and Other Fees. The Borrower shall pay to the Administrative Agent, for its own use and benefit and for the benefit of the Lenders, and each arranger, as applicable, the fees agreed to betweenin the Administrative Agent and the Borrower in a fee letter dated August 7, 2017Fee Letters, or as otherwise agreed to in writing between themsuch parties.
SECTION 3. PLACE AND APPLICATION OF PAYMENTS.
Section 3.1. Place and Application of Payments. All payments of principal of and interest
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on the Loans and the Reimbursement Obligations, and of all other Obligations payable by the Borrower under this Agreement and the other Loan Documents, shall be made by the Borrower to the Administrative Agent by no later than 12:00 Noon (Chicago time) on the due date thereof at the office of the Administrative Agent in Chicago, Illinois (or such other location as the Administrative Agent may designate to the Borrower) for the benefit of the Lender(s) or L/C Issuer entitled thereto. Any payments received after such time shall be deemed to have been received by the Administrative Agent on the next Business Day. All such payments shall be made in U.S. Dollars, in immediately available funds at the place of payment, in each case without set-off or counterclaim. The Administrative Agent will promptly thereafter cause to be distributed like funds relating to the payment of principal or interest on Loans and on Reimbursement Obligations in which the Lenders have purchased Participating Interests ratably to the Lenders and like funds relating to the payment of any other amount payable to any Lender to such Lender, in each case to be applied in accordance with the terms of this Agreement. If the Administrative Agent causes amounts to be distributed to the Lenders in reliance upon the assumption that the Borrower will make a scheduled payment and such scheduled payment is not so made, each Lender shall, on demand, repay to the Administrative Agent the amount distributed to such Lender together with interest thereon in respect of each day during the period commencing on the date such amount was distributed to such Lender and ending on (but excluding) the date such Lender repays such amount to the Administrative Agent, at a rate per annum equal to: (i) from the date the distribution was made to the date two (2) Business Days after payment by such Xxxxxx is due hereunder, the Federal Funds Rate for each such day and (ii) from the date two (2) Business Days after the date such payment is due from such Lender to the date such payment is made by such Lender, the Base Rate in effect for each such day.
Anything contained herein to the contrary notwithstanding (including, without limitation, Section 1.8(b) hereof), all payments and collections received in respect of the Obligations by the Administrative Agent or any of the Lenders after acceleration or the final maturity of the Obligations or termination of the Revolving Credit Commitments as a result of an Event of Default shall be remitted to the Administrative Agent and distributed as follows:
(a) first, to the payment of any outstanding costs and expenses incurred by the Administrative Agent in protecting, preserving or enforcing rights under the Loan Documents, and in any event including all costs and expenses of a character which the Borrower has agreed to pay the Administrative Agent under Section 12.15 hereof (such funds to be retained by the Administrative Agent for its own account unless it has previously been reimbursed for such costs and expenses by the Lenders, in which event such amounts shall be remitted to the Lenders to reimburse them for payments theretofore made to the Administrative Agent);
(b) second, to the payment of Swing Loans, both for principal and accrued but unpaid interest;
(c) third, to the payment of any outstanding interest and fees due under the Loan Documents to be allocated pro rata in accordance with the aggregate unpaid amounts owing to each holder thereof;
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(d) fourth, to the payment of principal on the Term Loans, Incremental Term Loans (if any), the Revolving Loans, unpaid Reimbursement Obligations, together with amounts to be held by the Administrative Agent as collateral security for any outstanding L/C Obligations pursuant to Section 9.4 hereof (until the Administrative Agent is holding an amount of cash equal to the then outstanding amount of all such L/C Obligations), Hedging Liability, and Funds Transfer and Deposit Account Liability, with the aggregate amount paid to, or held as collateral security for, the Lenders and, L/C Issuer and Hedging Counterparties and, in the case of Hedging Liability, their Affiliates to be allocated pro rata in accordance with the aggregate unpaid amounts owing to each holder thereof;
(e) fifth, to the payment of all other unpaid Obligations and all other indebtedness, obligations, and liabilities of the Borrower and its Subsidiaries evidenced by the Loan Documents to be allocated pro rata in accordance with the aggregate unpaid amounts owing to each holder thereof; and
(f) finally, to the Borrower or whoever else may be lawfully entitled thereto.
SECTION 4. GUARANTIES.
Section 4.1. Guaranties. The payment and performance of the Obligations, Hedging Liability, and Funds Transfer and Deposit Account Liability shall at all times be guaranteed by each direct and indirect Material Subsidiary of the Borrower pursuant to Section 13 hereof or pursuant to one or more guaranty agreements in form and substance acceptable to the Administrative Agent, as the same may be amended, modified or supplemented from time to time (individually a “Guaranty” and collectively the “Guaranties” and each such Material Subsidiary executing and delivering a Guaranty being referred to herein as a “Guarantor” and collectively the “Guarantors”); provided, however, that, with respect to any Guarantor, Hedging Liability guaranteed by such Guarantor shall exclude all Excluded Swap Obligations.
Section 4.2. Further Assurances. In the event the Borrower or any Guarantor forms or acquires any other Material Subsidiary after the date hereof, except as otherwise provided in Section 4.1, the Borrower shall promptly upon such formation or acquisition cause such newly formed or acquired Material Subsidiary to execute a Guaranty or an Additional Guarantor Supplement in the form of Exhibit G attached hereto (the “Additional Guarantor Supplement”) as the Administrative Agent may then require, and the Borrower shall also deliver to the Administrative Agent, or cause such Material Subsidiary to deliver to the Administrative Agent, at the Borrower’s cost and expense, such other instruments, documents, certificates, and opinions reasonably required by the Administrative Agent in connection therewith.
SECTION 5. DEFINITIONS; INTERPRETATION.
Section 5.1. Definitions. The following terms when used herein shall have the following meanings:
“1031 Property Holder” means the “qualified intermediary” or “exchange accommodation titleholder” with respect to a 1031 Property as contemplated under Section 1031 of the Code, the
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regulations of the U.S. Department of Treasury adopted thereunder and related revenue procedures related thereto.
“1031 Property Security Documents” means a collateral assignment and pledge of (x) any promissory note made by the applicable 1031 Property Holder in favor of the Borrower or a Guarantor, which promissory note is limited recourse to the 1031 Property, (y) the equity interest of the 1031 Property Holder and (z) the Borrower’s or the applicable Guarantor’s, as the case may be, rights under an “exchange agreement”, a “qualified exchange accommodation agreement” (as defined in IRS Revenue Procedure 2000-37) or any similar agreement, in each case, pursuant to collateral assignment and pledge documentation reasonably acceptable to the Administrative Agent, which shall include (i) a written acknowledgement and consent by the 1031 Property Holder of such collateral assignments and pledges and (ii) an acknowledgement and agreement by the 1031 Property Holder that, following receipt of a notice from Administrative Agent stating that an Event of Default under the Agreement has occurred, it will comply with the requirements of Section 8.25 hereof, in each case, reasonably acceptable to the Administrative Agent2026 Term Loan” means the Term Loan made by each Lender in the amount of such Lender’s 2026 Term Loan Commitment on the Sixth Amendment Effective Date and the Incremental Term Loan made by certain Lenders in the amount of their 2026 Term Loan Commitment on June 17, 2021.
“2026 Term Loan Commitment” means, as to any Lender, the obligation of such Lender to make its Term Loan on Sixth Amendment Effective Date or June 17, 2021, as applicable, in the principal amount not to exceed the amount set forth opposite such Xxxxxx’s name under the heading 2026 Term Loan Commitment on Schedule I attached hereto and made a part hereof. The Borrower and the Lenders acknowledge and agree that the 2026 Term Loan Commitments of the Lenders aggregate $65,000,000 as of June 17, 2021.
“2027 Term Loan” means the Incremental Term Loan made by each Lender in the amount of such Lender’s 2027 Term Loan Commitment pursuant to Section 1.15 hereof on the Seventh Amendment Effective Date.
“2027 Term Loan Commitment” means, as to any Lender, the obligation of such Lender to make its 2027 Term Loan on the Seventh Amendment Effective Date in the principal amount not to exceed the amount set forth opposite such Xxxxxx’s name under the heading 2027 Term Loan Commitment on Schedule I attached hereto and made a part hereof. The Borrower and the Lenders acknowledge and agree that the 2027 Term Loan Commitments of the Lenders aggregate $100,000,000 on the Seventh Amendment Effective Date.
“2028 Term Loan” means the Incremental Term Loan made by each Lender in the amount of such Xxxxxx’s 2028 Term Loan Commitment pursuant to Section 1.15 hereof on the Eighth Amendment Effective Date.
“2028 Term Loan Commitment” means, as to any Lender, the obligation of such Lender to make its 2028 Term Loan on the Eighth Amendment Effective Date in the principal amount not to exceed the amount set forth opposite such Xxxxxx’s name under the heading 2028 Term Loan
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Commitment on Schedule I attached hereto and made a part hereof. The Borrower and the Lenders acknowledge and agree that the 2028 Term Loan Commitments of the Lenders aggregate $100,000,000 on the Eighth Amendment Effective Date.
“Adjusted Daily Simple SOFR” means, with respect to a Daily Simple SOFR Rate Loan, the per annum rate equal to the sum of (i) Daily Simple SOFR plus (ii) 0.10% (10.0 basis points); provided that if Adjusted Daily Simple SOFR as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“Adjusted EBITDA” means EBITDA minus the Annual Capital Expenditure Reserve.
“Adjusted FFO” means for any period, “funds from operations” as defined in accordance with resolutions adopted by the Board of Governors of the National Association of Real Estate Investment Trusts (NAREIT) as in effect from time to time; provided, that Adjusted FFO shall (i) be based on net income after payment of distributions to holders of preferred partnership units in Borrower and distributions necessary to pay holders of preferred stock of Borrower, and (ii) at all times exclude (a) charges for impairment losses from property sales, (b) stock-based compensation, (c) write-offs or reserves of straight-line rent related to sold assets, (d) amortization of debt costs, and (e) non-recurring charges, including, without limitation, acquisition expenses, non-cash charges related to the write-off of deferred equity and financing costs and one-time charges related to the transition to self-management and (f) other non-cash items as mutually agreed upon by Xxxxxxxx and Administrative Agent. The Borrower’s Ownership Share of Adjusted FFO of its Unconsolidated Affiliates will be included when determining Adjusted FFO of Borrower and its Subsidiaries, subject to the adjustments set forth in this definition.
“Adjusted LIBOR” is defined in Section 1.4Term SOFR” means, for any Interest Period, the per annum rate equal to the sum of (bi) hereofTerm SOFR for such Interest Period plus (ii) 0.10% (10.0 basis points); provided that if Adjusted Term SOFR as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“Administrative Agent” means Bank of Montreal, in its capacity as Administrative Agent xxxxxxxxx, and any successor in such capacity pursuant to Section 11.6 hereof.
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.
“Affected Lender” is defined in Section 1.13 hereof.
“Affiliate” means any Person directly or indirectly controlling or controlled by, or under direct or indirect common control with, another Person. A Person shall be deemed to control another Person for purposes of this definition if such Person possesses, directly or indirectly, the power to direct, or cause the direction of, the management and policies of the other Person, whether through the ownership of voting securities, common directors, trustees or officers, by contract or otherwise; provided that, in any event for purposes of this definition, any Person that owns, directly or indirectly, 20% or more of the securities having the ordinary voting power for the election of
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directors or governing body of a corporation or 20% or more of the partnership or other ownership interest of any other Person (other than as a limited partner of such other Person) will be deemed to control such corporation or other Person.
“Agreement” means this Second Amended and Restated Credit Agreement, as the same may be amended, modified, restated or supplemented from time to time pursuant to the terms hereof.
“Alpine” means Alpine Income Property Trust, Inc, a Maryland corporation.
“Annual Capital Expenditure Reserve” means the sum of (a) an amount equal to the product of (i) $0.15 multiplied by (ii) the aggregate net rentablegross leasable area, determined on a square footage basis, for retail properties, Retail Mixed-Use Properties and industrial properties, plus (b) an amount equal to the product of (i) $0.50 multiplied by (ii) the aggregate net rentablegross leasable area, determined on a square footage basis, for officeall other properties, plus (c) an amount equal to the product of (i) four percent (4.0%) multiplied by (ii) the gross revenues from any hotels, motels and resorts; provided, however, that this definition of Annual Capital Expenditure Reserve shall not apply to any Land Assets or any Ground Leases; provided that so long as the Borrower is not obligated for such Capital Expenditures.
“Anti-Corruption Law” means the FCPA and any law, rule or regulation of any jurisdiction concerning or relating to bribery or corruption that are applicable to Borrower or any Subsidiary or Affiliate.
“Applicable Margin” means, with respect to Loans, Reimbursement Obligations, and the commitment fees and letter of credit fees payable under Section 2.1 hereof, until the first Pricing Date, the rates shown opposite Level III below, and thereafter, from one Pricing Date to the next the rates per annum determined in accordance with the following schedule:
LEVEL | TOTAL INDEBTEDNESS TO TOTAL ASSET VALUE RATIO FOR SUCH PRICING DATE | APPLICABLE MARGIN FOR BASE RATE LOANS (OTHER THAN 2028 TERM LOANS) AND REIMBURSEMENT OBLIGATIONS SHALL BE: | APPLICABLE MARGIN FOR EURODOLLARTERM SOFR RATE LOANS , DAILY SIMPLE SOFR RATE LOANS (OTHER THAN 2028 TERM LOANS) AND LETTER OF CREDIT FEEFEES SHALL BE: | APPLICABLE MARGIN FOR 2028 TERM LOANS AS BASE RATE LOANS SHALL BE: | APPLICABLE MARGIN FOR 2028 TERM LOANS AS TERM SOFR RATE LOANS AND DAILY SIMPLE SOFR RATE SHALL BE: |
|---|---|---|---|---|---|
I | Less than or equal to 0.450.40 to 1.00 | 0.35%0.25% | 1.35%1.25% | 0.20% | 1.20% |
II | Less than or equal to 0.500.45 to 1.00, but greater than 0.450.40 to 1.00 | 0.50%0.35% | 1.50%1.35% | 0.30% | 1.30% |
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LEVEL | TOTAL INDEBTEDNESS TO TOTAL ASSET VALUE RATIO FOR SUCH PRICING DATE | APPLICABLE MARGIN FOR BASE RATE LOANS (OTHER THAN 2028 TERM LOANS) AND REIMBURSEMENT OBLIGATIONS SHALL BE: | APPLICABLE MARGIN FOR EURODOLLARTERM SOFR RATE LOANS , DAILY SIMPLE SOFR RATE LOANS (OTHER THAN 2028 TERM LOANS) AND LETTER OF CREDIT FEEFEES SHALL BE: | APPLICABLE MARGIN FOR 2028 TERM LOANS AS BASE RATE LOANS SHALL BE: | APPLICABLE MARGIN FOR 2028 TERM LOANS AS TERM SOFR RATE LOANS AND DAILY SIMPLE SOFR RATE SHALL BE: |
|---|---|---|---|---|---|
III | Less than or equal to 0.550.50 to 1.00, but greater than 0.500.45 to 1.00 | 0.65%0.50% | 1.65%1.50% | 0.45% | 1.45% |
IV | Less than or equal to 0.55 to 1.00, but greater than 0.50 to 1.00 | 0.65% | 1.65% | 0.60% | 1.60% |
V | Less than or equal to 0.60 to 1.00, but greater than 0.55 to 1.00 | 0.95% | 1.95% | 0.90% | 1.90% |
IVVI | Greater than 0.550.60 to 1.00 | 0.95%1.20% | 1.95 %2.20% | 1.15% | 2.15% |
For purposes hereof, the term “Pricing Date” means, for any fiscal quarter of the Borrower, the last date on which the Borrower’s most recent Compliance Certificate and financial statements (and, in the case of the year-end financial statements, audit report) for the fiscal quarter then ended are due, pursuant to Section 8.5 hereof. The Applicable Margin shall be established based on the Total Indebtedness to Total Asset Value Ratioratio for the most recently completed fiscal quarter and the Applicable Margin established on a Pricing Date shall remain in effect until the next Pricing Date. If the Borrower has not delivered its Compliance Certificate and financial statements by the date the Compliance Certificate and financial statements (and, in the case of the year-end financial statements, audit report) are required to be delivered under Section 8.5 hereof, then until such Compliance Certificate and financial statements and/or audit report are delivered, the Applicable Margin shall be the highest Applicable Margin (i.e., Level IVVI shall apply). If the Borrower subsequently delivers such Compliance Certificate and financial statements before the next Pricing Date, the Applicable Margin established by such late delivered Compliance Certificate and financial statements shall take effect from the date of delivery until the next Pricing Date. In all other circumstances, the Applicable Margin established by such Compliance Certificate and financial statements shall be in effect from the Pricing Date that occurs immediately after the end of the fiscal quarter covered by such financial statements until the next Pricing Date.
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Borrower, Administrative Agent, L/C Issuer and Xxxxxxx understand that the applicable interest rate for the Obligations and certain fees set forth herein may be determined and/or adjusted from time to time based upon certain financial ratios and/or other information to be provided or certified to the Administrative Agent and Lenders by Borrower (the "Borrower Information"). If it is subsequently determined that any such Borrower Information was incorrect (for whatever reason, including, without limitation, because of a subsequent restatement of earnings by the Borrower) at the time it was delivered to the Administrative Agent, and if the applicable interest rate or fees calculated for any period were lower than they should have been had the correct information been timely provided, then, such interest rate and such fees for such period shall be automatically recalculated using correct Borrower Information; provided that no recalculation shall be done for any period that is more than 2 years earlier than the date of recalculation. The Administrative Agent shall promptly notify Borrower in writing of any additional interest and fees due because of such recalculation, and the Borrower shall pay such additional interest or fees due to the Administrative Agent, for the account of each Lender or the L/C Issuer, within five (5) Business Days of receipt of such written notice. Any recalculation of interest or fees required by this provision shall survive the termination of this Agreement, and this provision shall not in any way limit any of the Administrative Agent's, the L/C Issuer’s, or any Lender's other rights under this Agreement. Each determination of the Applicable Margin made by the Administrative Agent in accordance with the foregoing shall be conclusive, absent manifest error, and binding on the Borrower and the Lenders if reasonably determined.
“Application” is defined in Section 1.3(b) hereof.
“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.
“Assets Under Development” means any real property under construction (excluding any completed Property under minor renovation) until such property has received a certificate of occupancy.
“Assignment and Acceptance” means an assignment and acceptance entered into by a Xxxxxx and an Eligible Assignee (with the consent of any party whose consent is required by Section 12.12 hereof), and accepted by the Administrative Agent, in substantially the form of Exhibit F or any other form approved by the Administrative Agent.
“Authorized Representative” means those persons shown on the list of officers provided by the Borrower pursuant to Section 7.2 hereof or on any update of any such list provided by the Borrower to the Administrative Agent, or any further or different officers of the Borrower so named by any Authorized Representative of the Borrower in a written notice to the Administrative Agent.
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement or (y) otherwise, any payment period for interest calculated with
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reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 10.2(b)(iv).
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an AffectedEEA 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, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bankruptcy Event” means, with respect to any Person, any event of the type described in clause (j) or (k) of Section 9.1 hereof with respect to such Person.
“Base Rate” is defined in Section 1.4(a) hereofmeans, for any day, the rate per annum equal to the greatest of: (a) the rate of interest announced or otherwise established by the Administrative Agent from time to time as its prime commercial rate, or its equivalent, for U.S. Dollar loans to borrowers located in the United States as in effect on such day, with any change in the Base Rate resulting from a change in said prime commercial rate to be effective as of the date of the relevant change in said prime commercial rate (it being acknowledged and agreed that such rate may not be the Administrative Agent’s best or lowest rate), (b) the sum of (i) the Federal Funds Rate for such day, plus (ii) 1/2 of 1%, or (c) the sum of (i) Adjusted Term SOFR for a one-month tenor in effect on such day plus (ii) 1.0%. Any change in the Base Rate due to a change in the prime rate, the Federal Funds Rate or Term SOFR, as applicable, shall be effective from and including the effective date of the change in such rate. If the Base Rate is being used as an alternative rate of interest pursuant to Section 10.2, then the Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above, provided that if the Base Rate as determined above shall ever be less than the Floor, then Base Rate shall be deemed to be the Floor.
“Base Rate Loan” means a Loan bearing interest at a rate specified in Section 1.4(a) hereofthe Base Rate.
“Benchmark” means, initially, (a) with respect to Daily Simple SOFR Rate Loans, Daily Simple SOFR and (b) with respect to Term SOFR Rate Loans, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that
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such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 10.2(b).
“Benchmark Replacement” means, the sum of (i) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for U.S. Dollar-denominated syndicated credit facilities and (ii) the related Benchmark Replacement Adjustment. If the Benchmark Replacement as determined pursuant hereto would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. Dollar-denominated syndicated credit facilities.
“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:
(a) in the case of clause (a) or (b) 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
(b) in the case of clause (c) 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 or on behalf of the administrator of such Benchmark (or such component thereof) or the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be no longer representative or not to comply with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks; provided, that such non-representativeness or non-compliance will be determined by reference to the most recent statement or publication referenced in such clause (c) 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, 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
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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).
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
(a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), 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 such component thereof);
(b) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) 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 such component thereof); or
(c) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) or the regulatory supervisor for the administrator of such Benchmark (or such component thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer, or as of a specified future date will no longer be, representative or do not, or as a specified future date will not, comply with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” means the period (if any) (a) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 10.2(b) and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 10.2(b).
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“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.
“Borrower” is defined in the introductory paragraph of this Agreement.
“Borrowing” means the total of Loans of a single type advanced, continued for an additional Interest Period, or converted from a different type into such type by the Lenders on a single date and, in the case of EurodollarTerm SOFR Rate Loans, for a single Interest Period. Borrowings of Loans are made and maintained ratably from each of the Lenders according to their Percentages. A Borrowing is “advanced” on the day Lenders advance funds comprising such Borrowing to the Borrower, is “continued” on the date a new Interest Period for the same type of Loans commences for such Borrowing, and is “converted” when such Borrowing is changed from one type of Loans to the other, all as determined pursuant to Section 1.6 hereof. Borrowings of Swing Loans are made by the Swing Line Lender in accordance with the procedures set forth in Section 1.17 hereof.
“Borrowing Base” means, at any date of its determination, an amount equal to:
(x) (i) the lesser of (A) 60% of(i) (x) during a Leverage Ratio Increase Period, 65% and (y) at all other times, 60%, multiplied by (ii) the Borrowing Base Value of all Eligible Properties on such date and (B) the Debt Service Coverage Amount of all Eligible Properties on such date, minus
(y) the aggregate amount of Other Unsecured Indebtedness if an Other Guaranty Trigger has occurred (but a Collateral Trigger Event has not occurred.
“2026 Term Loan” means the Term Loan made by each Lender in the amount of such Lender’s 2026 Term Loan Commitment on the Sixth Amendment Effective Date and the Incremental Term Loan made by Xxxxx Fargo in the amount of its 2026 Term Loan Commitment on June 17, 2021.
“2026 Term Loan Commitment” means, as to any Lender, the obligation of such Lender to make its Term Loan on Sixth Amendment Effective Date or June 17, 2021, as applicable in the principal amount not to exceed the amount set forth opposite such Xxxxxx’s name under the heading 2026 Term Loan Commitment on Schedule 1 attached hereto and made a part hereof. The Borrower and the Lenders acknowledge and agree that the 2026 Term Loan Commitments of the Lenders aggregate $65,000,000 as of June 17, 2021.
“2027 Term Loan” means the Incremental Term Loan made by each Lender in the amount of such Lender’s 2027 Term Loan Commitment pursuant to Section 1.15 hereof.
“2027 Term Loan Commitment” means, as to any Lender, the obligation of such Lender to make its 2027 Term Loan on the Seventh Amendment Effective Date in the principal amount
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not to exceed the amount set forth opposite such Xxxxxx’s name under the heading 2027 Term Loan Commitment on Schedule 1 attached hereto and made a part hereof. The Borrower and the Lenders acknowledge and agree that the 2027 Term Loan Commitments of the Lenders aggregate $100,000,000 on the Seventh Amendment Effective Date), the aggregate amount of Other Unsecured Indebtedness including the Convertible Senior Notes.
“Borrowing Base Certificate” means the certificate in the form of Exhibit I hereto, or in such other form acceptable to the Administrative Agent, to be delivered to the Administrative Agent pursuant to Sections 7.2(i), 7.3 and 8.5(d) hereof.
“Borrowing Base Determination Date” means each date on which the Borrowing Base is certified in writing to the Administrative Agent, as follows:
(a) Quarterly. As of the last day of each Fiscal Quarter.
(b) Property Adjustments. Following each addition or deletion of an Eligible Property, the Borrowing Base Value shall be adjusted accordingly.
“Borrowing Base NOI” means for the most recent Rolling Period, the aggregate Property NOI attributable to the Eligible Properties.
“Borrowing Base Requirements” means with respect to the calculation of the Borrowing Base, collectively that :
(a) at all times such calculation shall be based on no less than twentyfifteen (2015) Eligible Properties with a gross leasable area of not less than 25,000 square feet each;
(b) $200,000,000 the Borrowing Base Value shall not be less than $400,000,000;
(c) no more than 3515% of the Borrowing Base Value may be comprised of Eligible Properties which are not used as retail, office or mixed-use retail/office Properties; (d) no more than 25% of the Borrowing Base Value may be comprised of any one Eligible Property properties, Retail Mixed-Use Properties or office properties (for the avoidance of doubt, an Eligible Property that exceeds this sublimit may be included in the calculation of Borrowing Base Value, provided any amount over 2515% of the Borrowing Base Value is excluded from the calculation of the Borrowing Base Value); (e)
(d) no more than 20% of the Borrowing Base Value may be fromcomprised of any single Tenant unless such Tenant’s Rating is equal to or better than BBB-/Baa3 from S&P or Moody’s, respectivelyone Eligible Property (for the avoidance of doubt, an Eligible Property that exceeds this sublimit may be included in the calculation of Borrowing Base Value, provided any amount over 20% of the Borrowing Base Value is excluded from the calculation of the Borrowing Base Value), (f) ;
(e) no more than 30% of Borrowing Base Value may be comprised of Permitted Ground Lease Investments, (gA) no more than 20% of the Borrowing Base Value may be
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comprised of Eligible Properties which are operated as hotels, motels or resorts, (h) the Eligible Properties (other than Permitted Ground Lease Investments) must have an aggregate Occupancy Rate of at least 85% and no more thanprior to September 20, 2025, 35% and (B) on and after September 20, 2025, 25% of the Borrowing Base Value may be comprised of Eligible Properties which are located in the same MSA (for the avoidance of doubt, an Eligible Property that exceeds this sublimit may be included in the calculation of Borrowing Base Value, provided any amount over 35% or 25%, as applicable, of the Borrowing Base Value is excluded from the calculation of the Borrowing Base Value);
(f) the Eligible Properties must have a weighted average Occupancy Rate of at least 85%; and
(g) no more than 15% of the Borrowing Base Value may be comprised of Eligible Properties constituting Eligible Leasehold Interests (for the avoidance of doubt, an Eligible Property that exceeds this sublimit may be included in the calculation of Borrowing Base Value, provided any amount over 15% of the Borrowing Base Value is excluded from the calculation of the Borrowing Base Value).
“Borrowing Base Value” means an amount equal to the sum of (a) for all Eligible Properties owned for more than twelve (12) months, the quotient of (i) the Borrowing Base NOI divided by (ii) the Capitalization Rate plus (b) for all Eligible Properties owned for twelve (12) months or less, the lesser of (i) theundepreciated book value (as defined by GAAP) of any such Eligible Property and (ii), the value of any such Eligible Property as determined by the calculation in clause (a) above measured on an annualized basis rather than for the most recently ended period of four quarters; provided that Borrowing Base Value shall be reduced by excluding a portion of the Property NOI or book value of any Eligible Properties attributable to any Eligible Properties that exceed the concentration limits in the Borrowing Base Requirements.
“Business Day” means any day (other than a Saturday or Sunday) on which banks are not authorized or required to close in Chicago, Illinois and, if the applicable Business Day relates to the advance or continuation of, or conversion into, or payment of a Eurodollar Loan, on which banks are dealing in U.S. Dollar deposits in the interbank eurodollar market in London, England.
“Capital Expenditures” means, with respect to any Person for any period, the aggregate amount of all expenditures (whether paid in cash or accrued as a liability) by such Person during that period for the acquisition or leasing (pursuant to a Capital Lease) of fixed or capital assets or additions to property, plant, or equipment (including replacements, capitalized repairs, and improvements) which are required to be capitalized on the balance sheet of such Person in accordance with GAAP.
“Capital Lease” means any lease of Property which in accordance with GAAP is required to be capitalized on the balance sheet of the lessee.
“Capitalization Rate” means (i) 6.25% for existing single-tenant Properties occupied by tenants maintaining a (A) BBB- Rating or better from S&P’s or Fitch, or (B) Baa3 Rating or better from S&P’s or Moody’s, respectively(ii) 6.50% for grocery anchored retail properties, (iiiii) 7.00%
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for all other retail Properties, including mixed-use retail/officeand Retail Mixed-Use Properties not covered under the foregoing clause (i), (iiiiv) 8.00% for all office Properties not covered under the foregoing clause (i), (iv) 9.25% for hotel, motel or resort Properties and (v) 10% for all other Properties not covered under the foregoing clauses (i), (ii), or (iii) or (iv); provided, that for all Properties that are subject to Permitted Ground Lease InvestmentsLeases, the applicable Capitalization Rate shall be determined as if Borrower was the owner of the fully-completed building located on such Property.
“Capitalized Lease Obligation” means, for any Person, the amount of the liability shown on the balance sheet of such Person in respect of a Capital Lease determined in accordance with GAAP.
“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §§9601 et seq., and any future amendments.
“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 Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines or directives thereunder or issued in connection therewith shall be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
“Change of Control” means any of (a) the acquisition by any “person” or “group” (as such terms are used in sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) at any time that causes such person or group to become the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, as amended) of 51% or more of the outstanding capital stock or other equity interests of the Borrower on a fully-diluted basis, other than acquisitions of such interests by any party who is an officer or director of the Borrower as of the Closing Date or (b) the failure of individuals who are members of the board of directors (or similar governing body) of Borrower on the Closing Date (together with any new or replacement directors whose initial nomination for election was approved by a majority of the directors who were either directors on the Closing Date or previously so approved) to constitute a majority of the board of directors (or similar governing body) of Borrower.
“Closing Date” means the date of this Agreement or such later Business Day upon which each condition described in Section 7.2 shall be satisfied or waived in a manner acceptable to the Administrative Agent in its discretion.
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“Code” means the Internal Revenue Code of 1986, as amended, and any successor statute thereto.
“Collateral” means all properties, rights, interests, and privileges from time to time subject to the Liens granted to the Administrative Agent, or any security trustee therefor, by the Collateral Documents.
“Collateral Account” is defined in Section 9.4(b) hereof.
“Collateral Documents” means the Pledge Agreement, Mortgages, (if any), the Omnibus Amendment and General Reaffirmation Agreement, the 1031 Property Security Documents (ifand any), and all other mortgages, deeds of trust, security agreementsagreement, pledge agreements, assignments, financing statements, control agreements, and other documents as shall from time to time secureagreement or other security document that shall be executed by the Borrower or relate to the Obligations or any part thereofGuarantors in favor of the Administrative Agent and the Lenders pursuant to Section 8.24(c) hereunder, as the same may be amended, modified, supplemented or restated from time to time.
“Collateral Trigger Event” is defined in Section 8.24(b) hereof.
“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.
“Compliance Certificate” is defined in Section 8.5(e) hereof.
“Conforming Changes” means, with respect to either the use or administration of Daily Simple SOFR or Term SOFR, or the use, administration, adoption or implementation of 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” or any similar or analogous definition (or the addition of a concept 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 applicability of Section 1.11 and other technical, administrative or operational matters) that the Administrative Agent reasonably decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and 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 any such rate 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).
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profit Taxes.
“Controlled Group” means all members of a controlled group of corporations and all
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trades or businesses (whether or not incorporated) under common control which, together with the Borrower, are treated as a single employer under Section 414 of the Code.
“Convertible Senior Notes” means the Borrower’s 3.875% Convertible Senior Notes due 2025.
“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
“Credit Event” means the advancing of any Loan, or the issuance of, or extension of the expiration date or increase in the amount of, any Letter of Credit.
“Daily Simple SOFR” means, for any day (a “SOFR Rate Day”), a rate per annum equal to SOFR for the day (such day, the “SOFR Determination Day”) that is five (5) U.S. Government Securities Business Days prior to (i) if such SOFR Rate Day is a U.S. Government Securities Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not a U.S. Government Securities Business Day, the U.S. Government Securities Business Day immediately preceding such SOFR Rate Day, in each case, as and when SOFR for such SOFR Rate Day is published by the SOFR Administrator on the SOFR Administrator’s Website. If by 5:00 pm (New York City time) on the second (2nd) U.S. Government Securities Business Day immediately following any SOFR Determination Day, SOFR in respect of such SOFR Determination Day has not been published on the SOFR Administrator’s Website and a Benchmark Replacement Date with respect to Daily Simple SOFR has not occurred, then SOFR for such SOFR Determination Day will be SOFR as published in respect of the first preceding U.S. Government Securities Business Day for which such SOFR was published on the SOFR Administrator’s Website; provided, that any SOFR determined pursuant to this sentence shall be utilized for purposes of calculation of Daily Simple SOFR for no more than three (3) consecutive SOFR Rate Days. Any change in Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to the Borrower.
“Daily Simple SOFR Rate Loan” means a Loan bearing interest at a rate based on Adjusted Daily Simple SOFR.
“Debt Service Coverage Amount” means the principal amount of a loan that would be serviced by the Borrowing Base NOI for the Rolling Period most recently ended for which financial statements have been delivered pursuant to Section 8.5 hereof at a debt service coverage ratio of 1.501.40 to 1.00 with interest and principal payments (in each case assuming a 30-year amortization) at the greatergreatest of (i) 6.55.75% per annum, (ii) a EurodollarTerm SOFR Rate Loan with an Interest Period of one (1) month (including the Applicable Margin) as of the last day of the most recent fiscal quarter and (iii) the 10-year treasury rate on the last day of such period plus 2.5%; provided that Borrowing Base NOI shall be reduced by excluding a portion of Property NOI attributable to Eligible Properties that exceed the concentration limits in the Borrowing Base Requirements.
“Debtor Relief Laws” means the Bankruptcy Code of the United States of America, and
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all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect.
“Default” means any event or condition the occurrence of which would, with the passage of time or the giving of notice, or both, constitute an Event of Default.
“Defaulted Loan” is defined in the definition of “Defaulting Lender” in this Section 5.1.
“Defaulting Lender” means any Lender that (a) has failed to fund any portion of the Loans or participations in L/C Obligations or Swing Loans required to be funded by it hereunder (herein, a “Defaulted Loan”) within two (2) Business Days of the date required to be funded by it hereunder unless such failure has been cured, (b) has otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder (except for up to $25,000 in the aggregate from a Lender which is owing for less than five (5) Business Days) within two (2) Business Days of the date when due, unless the subject of a good faith dispute or unless such failure has been cured, (c) has experienced a Bankruptcy Event or (d) a receiver or conservator has been appointed for such Lender or (e) has become the subject of a Bail-In Action.
“Defaulting Lender Excess” means, with respect to any Defaulting Lender, the excess, if any, of such Defaulting Lender’s Revolver Percentage of the aggregate outstanding principal amount of Loans of all Lenders (calculated as if all Defaulting Lenders other than such Defaulting Lender had funded all of their respective Defaulted Loans) over the aggregate outstanding principal amount of all Loans of such Defaulting Lender.
“Defaulting Lender Period” means, with respect to any Defaulting Lender, the period commencing on the date upon which such Lender first became a Defaulting Lender and ending on the earliest of the following dates: the date on which (a) such Defaulting Lender is no longer the subject of a Bankruptcy Event or, if applicable, under the direction of a receiver or conservator, (b) the Defaulting Lender Excess with respect to such Defaulting Lender shall have been reduced to zero (whether by the funding by such Defaulting Lender of any Defaulted Loans of such Defaulting Lender or otherwise), and (c) such Defaulting Lender shall have delivered to Borrower and the Administrative Agent a written reaffirmation of its intention to honor its obligations hereunder, including with respect to its Revolving Credit Commitments.
“Dividends” means any dividend paid (or declared and then payable), as the case may be, in cash on any equity security issued by the Borrower.
“EBITDA” means, for any period, determined on a consolidated basis of the Borrower and its Subsidiaries, in accordance with GAAP, the sum of net income (or loss) plus: (i) depreciation and amortization expense, to the extent included as an expense in the calculation of net income (or loss); (ii) Interest Expense; (iii) income tax expense, to the extent included as an expense in the calculation of net income (or loss); (iv) extraordinary, unrealized or non-recurring losses, including (A) impairment charges, and (B) losses from the sale of real property, and (v) non-cash compensation paid to employees of Borrower in the form of Xxxxxxxx’s equity securities, minus:
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(a) extraordinary, unrealized or non-recurring gains, including (x) the write-up or write-offs of assets and (y) gains (or losses) from the sale of real property and, (b) income tax benefits. Pro forma adjustments shall be made for any Property acquired or sold during any period as if the acquisition or disposition occurred on the first day of the applicable period, (c) stock-based compensation and (d) other non-cash items as mutually agreed upon by Xxxxxxxx and Administrative Agent. The Borrower’s Ownership Share of the EBITDA of its Unconsolidated Affiliates will be included when determining EBITDA of Borrower and its Subsidiaries.
“EEA Financial Institution” means (a) any institution 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 institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Eighth Amendment Effective Date” means September 20, 2022.
“Eighth Amendment Effective Date Properties” means collectively the Properties listed on Schedule 1.1 and “Eighth Amendment Effective Date Property” means any of such Properties.
“Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund, and (d) any other Person (other than a natural person) approved by (i) the Administrative Agent, (ii) the L/C Issuer, and (iii) unless an Event of Default has occurred and is continuing, the Borrower (each such approval not to be unreasonably withheld or delayed); provided that notwithstanding the foregoing, “Eligible Assignee” shall not include the Borrower or any Guarantor or any of the Borrower’s or such Guarantor’s Affiliates or Subsidiaries.
“Eligible Leasehold Interest” means a leasehold interest where Borrower or its Subsidiary is the lessee thereunder containing (a) the following terms and conditions: (i) a remaining term (inclusive of any unexercised extension options exercisable at lessee’s sole option) of thirty (30) years or more from the Eighth Amendment Effective Date or, with respect to any applicable Eligible Leasehold Interests, as previously approved by the Lenders prior to the Eighth Amendment Effective Date; (ii) the right of the lessee to mortgage and encumber its interest in the leased property without the consent of the lessor; (iii) the obligation of the lessor to give the holder of any mortgage Lien on such leased property written notice of any defaults on the part of the lessee and agreement of such lessor that such lease will not be terminated until such holder has had a reasonable opportunity to cure or complete foreclosure, and fails to do so; (iv) transferability and/or assignment of the lessee’s interest under such lease, including the ability to sublease, without consent; (v) such other rights customarily required by mortgagees making a loan secured
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by the interest of the holder of the leasehold estate demised pursuant to a ground lease; and (vi) in the event that such lease is terminated, such holder shall have the option to enter into a new lease having terms substantially identical to those contained in the terminated lease; or (b) terms and conditions otherwise reasonably acceptable to the Administrative Agent.
“Eligible Property” means, as of any Borrowing Base Determination Date, any Property owned by the Borrower, a Guarantor or a 1031 Property Holder which satisfies the following conditions:
(a) Is real property one hundred percent (100%) owned in fee simple, individually or collectively, by the Borrower, any Guarantor or any 1031 Property Holder, including Permitted Ground Lease Investmentsor is leased pursuant to an Eligible Leasehold Interest