AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT dated as of May 5, 2015 among NORTHSTAR REALTY FINANCE LIMITED PARTNERSHIP, as Borrower, NORTHSTAR REALTY FINANCE CORP., as Parent Guarantor CERTAIN SUBSIDIARIES OF PARENT GUARANTOR, as Guarantors,...
Exhibit 10.34
Execution Version
AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT
dated as of May 5, 2015
among
NORTHSTAR REALTY FINANCE LIMITED PARTNERSHIP,
as Borrower,
as Parent Guarantor
CERTAIN SUBSIDIARIES OF PARENT GUARANTOR,
as Guarantors,
VARIOUS LENDERS,
DEUTSCHE BANK SECURITIES INC.,
as Sole Lead Arranger and Sole Bookrunner,
and
DEUTSCHE BANK AG NEW YORK BRANCH,
as Administrative Agent and Collateral Agent
________________________________________________________
$500,000,000 Senior Secured Credit Facility
________________________________________________________
LA\4027402.11
TABLE OF CONTENTS
Page | ||
i
LA\4027402.11
ii
LA\4027402.11
iii
LA\4027402.11
iv
LA\4027402.11
APPENDICES: | A | Revolving Commitments |
B | Notice Addresses | |
SCHEDULES: | 1.1(a) | Borrowing Base |
1.1(b) | Amendment and Restatement Date Guarantors | |
3.1(c) | Amendment and Restatement Date Pledged Entities | |
4.12 | Title to Properties | |
6.1 | Existing Indebtedness | |
6.2 | Existing Liens | |
6.9 | Existing Transactions with Shareholders and Affiliates | |
EXHIBITS: | A‑1 | Funding Notice |
A‑2 | Conversion/Continuation Notice | |
A‑3 | Issuance Notice | |
B‑1 | Revolving Loan Note | |
B‑2 | Swing Line Note | |
C | Compliance Certificate | |
D | Assignment Agreement | |
E‑1 | Amendment and Restatement Date Certificate | |
E‑2 | Solvency Certificate | |
F | Counterpart Agreement | |
G | Pledge Agreement | |
H | Borrowing Base Certificate | |
I | Joinder Agreement | |
J-1 | Form of U.S. Tax Compliance Certificate | |
J-2 | Form of U.S. Tax Compliance Certificate | |
J-3 | Form of U.S. Tax Compliance Certificate | |
J-4 | Form of U.S. Tax Compliance Certificate | |
v
LA\4027402.11
AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT
This AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT, dated as of May 5, 2015, is entered into by and among NORTHSTAR REALTY FINANCE LIMITED PARTNERSHIP, a Delaware limited partnership (the “Borrower”), NORTHSTAR REALTY FINANCE CORP., a Maryland corporation (the “Parent Guarantor”), CERTAIN SUBSIDIARIES OF THE PARENT GUARANTOR, as Guarantors, the Lenders party hereto from time to time, DEUTSCHE BANK AG NEW YORK BRANCH (“DBNY”), as administrative agent (together with its permitted successors in such capacity, “Administrative Agent”) and as collateral agent (together with its permitted successors in such capacity, “Collateral Agent”), and DEUTSCHE BANK SECURITIES INC., as Sole Lead Arranger and Sole Bookrunner (in such capacity, “Lead Arranger”).
RECITALS:
WHEREAS, capitalized terms used in these Recitals shall have the respective meanings set forth for such terms in Section 1.1 hereof; and
WHEREAS, the Parent Guarantor, certain Guarantors, the Administrative Agent and certain banks and certain other parties thereto entered into a Credit and Guaranty Agreement, dated as of August 5, 2014 (as amended by that certain First Amendment to Credit and Guaranty Agreement, dated as of November 19, 2014, the “Original Credit Agreement”), pursuant to which the Lenders party thereto agreed to extend certain credit facilities to Parent Guarantor as the “Borrower” thereunder;
WHEREAS, on March 9, 2015, the Parent Guarantor formed the Borrower as a direct majority-owned Subsidiary of the Parent Guarantor;
WHEREAS, pursuant to a Counterpart Agreement, dated as of March 13, 2015, delivered by the Borrower in favor of the Administrative Agent, the Borrower became a Guarantor under the Original Credit Agreement;
WHEREAS, the Credit Parties have requested that the Borrower assume all of the Parent Guarantor’s obligations and liabilities as the “Borrower” under the Original Credit Agreement and that the Parent Guarantor be released from its obligations and liabilities as the “Borrower” under the Original Credit Agreement and become a Guarantor, in each case, in accordance with Sections 10.24 and 10.25 of this Agreement (collectively, the “Borrower Assignment”);
WHEREAS, the parties hereto desire to amend and restate the Original Credit Agreement in the form hereof in order to make certain modifications in order to reflect the assumption by the Borrower of the Parent Guarantor’s obligations and liabilities as the “Borrower” thereunder and to permit certain additional Real Estate Assets (as defined herein) to be included in the Borrowing Base;
WHEREAS, it is the intent of the parties hereto that the terms of this Agreement not constitute a novation of the obligations and liabilities of the parties under the Original Credit
Agreement and that this Agreement amend and restate in its entirety the Original Credit Agreement; and
WHEREAS, it is the intent of the Credit Parties to confirm that all Obligations of the Credit Parties under the Credit Documents, as amended hereby, shall continue in full force and effect and that, from and after the Amendment and Restatement Date, all references to the “Credit Agreement” contained in the Credit Documents shall be deemed to refer to the Original Credit Agreement as amended and restated hereby.
NOW, THEREFORE, in consideration of the foregoing, and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree to amend and restate the Original Credit Agreement as follows:
SECTION 1. DEFINITIONS AND INTERPRETATION
1.1. Definitions. The following terms used herein, including (except to the extent specifically stated otherwise) in the preamble, recitals, exhibits and schedules hereto, shall have the following meanings:
“Adjusted EBITDA” means, for any period, without duplication, an amount equal to CAD of the Parent Guarantor and its Consolidated Subsidiaries on a consolidated basis for such period plus, to the extent deducted in computing CAD for such period, Interest Expense for such period plus the provision for Federal, state, local and foreign income taxes payable of the Parent Guarantor and its Consolidated Subsidiaries plus the amount of dividends or distributions paid or required to be paid during such period in respect of preferred Equity Interests (excluding any balloon payments payable on maturity of such Equity Interests). Notwithstanding anything herein to the contrary, Adjusted EBITDA for the four-Fiscal Quarter period ending (a) on March 31, 2015 shall equal (x) Adjusted EBITDA for the three consecutive Fiscal Quarter period ending March 31, 2015 times (y) 4/3; and (b) after March 31, 2015 shall be Adjusted EBITDA for the most recent four-Fiscal Quarter period then ended.
“Adjusted Eurodollar Rate” means for any Interest Period with respect to a Eurodollar Rate Loan, a rate per annum determined by the Administrative Agent pursuant to the following formula:
Adjusted | Eurodollar Rate |
Eurodollar Rate = | 1.00 – Eurodollar Reserve Percentage |
“Administrative Agent” as defined in the preamble hereto.
“Adverse Proceeding” means any action, suit, proceeding, hearing (in each case, whether administrative, judicial or otherwise), governmental investigation or arbitration (whether or not purportedly on behalf of the Parent Guarantor or any of its Subsidiaries) at law or in equity, or before or by any Governmental Authority, whether pending or, to the knowledge of the Parent
Guarantor or any of its Subsidiaries, threatened in writing against or affecting the Parent Guarantor or any of its Subsidiaries or any property of the Parent Guarantor or any of its Subsidiaries.
“Affected Lender” as defined in Section 2.18(b).
“Affected Loans” as defined in Section 2.18(b).
“Affiliate” means, as applied to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with, that Person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power (a) to vote 15% or more of the Equity Interests having ordinary voting power for the election of directors of such Person or (b) to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting Equity Interests or by contract or otherwise. In no event shall the Administrative Agent or any Lender be deemed to be an Affiliate of the Parent Guarantor or any of its Subsidiaries as a result of the transactions contemplated by this Agreement.
“Agent” means each of (a) Administrative Agent, (b) Lead Arranger and (c) any other Person appointed under and in accordance with the Credit Documents to serve in an agent or similar capacity.
“Agent Affiliates” as defined in Section 10.1(b)(iii).
“Aggregate Amounts Due” as defined in Section 2.17.
“Aggregate Payments” as defined in Section 7.2.
“Agreement” means this Amended and Restated Credit and Guaranty Agreement, dated as of the Amendment and Restatement Date, as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“Amendment and Restatement Date” means May 5, 2015.
“Amendment and Restatement Date Certificate” means an Amendment and Restatement Date Certificate substantially in the form of Exhibit E‑1.
“Amendment and Restatement Date Pledged Entity” as defined in Section 3.1(c).
“Applicable Margin” means (a) in the case of Eurodollar Rate Loans, 3.50% per annum and (b) in the case of Base Rate Loans, 2.50% per annum.
“Applicable Revolving Commitment Fee Percentage” means 0.35% per annum; provided that at any time that the Total Utilization of Revolving Commitments equals or exceeds 50% of the aggregate Revolving Commitments, the Applicable Revolving Commitment Fee Percentage shall equal 0.25% per annum.
“Approved Electronic Communications” means any notice, demand, communication, information, document or other material that any Credit Party provides to Administrative Agent pursuant to any Credit Document or the transactions contemplated therein which is distributed to Agents, Lenders or Issuing Bank by means of electronic communications pursuant to Section 10.1(b).
“Asset Sale” means a sale, lease (as lessor or sublessor), sale and leaseback, assignment, conveyance, exclusive license (as licensor or sublicensor), transfer or other disposition to, or any exchange of property with, any Person, in one transaction or a series of transactions, of all or any part of the Parent Guarantor’s or any of its Subsidiaries’ businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including the Equity Interests of any of the Parent Guarantor’s Subsidiaries or any joint ventures owned by the Parent Guarantor or any of its Subsidiaries.
“Assignment Agreement” means an Assignment and Assumption Agreement substantially in the form of Exhibit D, with such amendments or modifications as may be approved by Administrative Agent.
“Assignment Effective Date” as defined in Section 10.6(b).
“Assigned Value” means the appraised value of each Real Estate Asset as set forth in its Real Estate Asset Qualified Appraisal delivered to the Administrative Agent upon its admission to the Borrowing Base; provided, that (i) the Administrative Agent shall have the right to request (and shall, upon receipt of a written request of the Requisite Lenders, request), at Borrower’s expense, a new Real Estate Asset Qualified Appraisal for any Real Estate Asset included in the Borrowing Base if the Administrative Agent determines, in its reasonable discretion (or if the Requisite Lenders determine, in their reasonable discretion, as the case may be), that there has been a material change in the value or condition of such Real Estate Asset, and thereafter the value of such Real Estate Asset shall be as set forth in such updated Real Estate Asset Qualified Appraisal, (ii) as long as there is no Event of Default that is continuing, such request in the foregoing clause (i) shall be limited to once per calendar year and (iii) to the extent the Parent Guarantor records (or is otherwise required to record) an asset impairment charge with respect to any such Real Estate Asset on the financial statements of the Parent Guarantor in accordance with GAAP, the “Assigned Value” with respect to such Real Estate Asset shall be the lesser of (x) the appraised value of such Real Estate Asset as set forth in its Real Estate Asset Qualified Appraisal delivered to the Administrative Agent upon its admission to the Borrowing Base (as updated in accordance with the foregoing clause (i)) and (y) the book value of such Real Estate Asset until such time as an updated Real Estate Asset Qualified Appraisal for such Real Estate Asset is provided to Administrative Agent.
“Authorized Officer” means, as applied to any Person, any individual holding the position of chairman of the board (if an officer), chief executive officer, president, chief operating officer, executive vice president of finance or chief financial officer of such Person; provided that the secretary or any assistant secretary of such Person shall have delivered an incumbency certificate to Administrative Agent as to the authority of such Authorized Officer.
“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor statute.
“Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus ½ of 1% and (c) the Eurodollar Rate for a period equal to one month plus 1%. Any change in the Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective on the effective day of such change in the Prime Rate or the Federal Funds Effective Rate, respectively.
“Base Rate Loan” means a Loan bearing interest at a rate determined by reference to the Base Rate.
“Board of Governors” means the Board of Governors of the United States Federal Reserve System, or any successor thereto.
“Borrower” as defined in the preamble hereto.
“Borrower Assignment” as defined in the preamble hereto.
“Borrowing Base” means, collectively, the Borrowing Base Assets.
“Borrowing Base Asset” means (a) each CDO Bond, (b) each Unencumbered Loan, (c) each Industrial Portfolio Interest and (d) each Real Estate Asset, in each case, that are set forth on Schedule 1.1(a) (as such Schedule may be updated from time to time with respect to Unencumbered Loans, CDO Bonds and Real Estate Assets in accordance with Section 2.26); provided that (A) no CDO Bond, Unencumbered Loan or Industrial Portfolio Interest Borrowing Base Asset shall be included in the Borrowing Base if (i) such Borrowing Base Asset is subject to a Lien, other than in favor of Collateral Agent; (ii) if an “event of default” or similar event or condition has occurred and is continuing under the agreements or instruments governing such CDO Bond, Unencumbered Loan or Industrial Portfolio Interest; or (iii) if as a result of the inclusion of such Borrowing Base Asset in the Borrowing Base, the right of Borrower or its applicable Subsidiary to own, hold, or encumber (in favor of Collateral Agent) the Equity Interests in the Pledged Entities is or would be reasonably expected to be, restricted, abridged, or otherwise limited under any Contractual Obligation; provided, however that solely with respect to the loans evidenced by the Industrial Portfolio Interests Loan Documents, the limited restrictions on transfer set forth therein that are in effect on the Original Closing Date (without giving effect to any amendment, modification or waiver thereof) shall be permitted, (B) no CDO Bond Borrowing Base Asset shall be included in the Borrowing Base unless the underlying collateralized debt obligation transaction was sponsored or originated by the Borrower or its Affiliates (other than CDO Bonds issued by the CSE RE 2006-A CDO and the CapLease 2005-1 CDO), (C) no Industrial Portfolio Interest Borrowing Base Asset shall be included in the Borrowing Base if the Organizational Documents of the applicable Pledged Entity holding the Industrial Portfolio Interest Borrowing Base Asset are amended, restated, supplemented, waived or otherwise modified after the date of its first inclusion in the Borrowing Base without the prior written consent of Administrative Agent and Requisite Lenders and (D) no Real Estate Asset shall be included in the Borrowing Base unless it satisfies the Real Estate Asset Eligibility Criteria.
5
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
“Borrowing Base Certificate” means a certificate substantially in the form of Exhibit H duly certified by the chief financial officer (or other Authorized Officer performing similar functions) of Borrower.
“Borrowing Base Eligible Real Estate Asset” means any Real Estate Asset the primary use of which is retail, hotel, office, industrial, lodging, multi-family housing and/or healthcare.
“Borrowing Base Interest Coverage Ratio” means the ratio, for any Fiscal Quarter, of (a) the sum of (i) the net cash flow actually received by the Pledged Entities during such Fiscal Quarter in respect of the CDO Bonds, Unencumbered Loans and Industrial Portfolio Interests in the Borrowing Base (including the interest payments received with respect to the CDO Bonds, the interest payments (but not principal or principal amortization payments) received with respect to the Unencumbered Loans and the investment return distributions (but not return of capital) made in respect of the Industrial Portfolio Interests) plus (ii) the Real Estate Asset Net Operating Income for each Real Estate Asset included in the Borrowing Base to (b) total interest expense paid of the Parent Guarantor, the Borrower and their Subsidiaries with respect to the Commitments, Loans and Letters of Credit hereunder for such Fiscal Quarter determined in accordance with GAAP.
“Borrowing Base Value” means, as of any date of determination, (i) the aggregate net carrying value of the CDO Bonds and the Unencumbered Loans plus (ii) the value of Industrial Portfolio Interests included in the Borrowing Base plus (iii) the Assigned Value of Real Estate Assets included in the Borrowing Base; provided that:
(a)the Borrowing Base Value attributable to the CDO Bonds included in the Borrowing Base shall not exceed 20% of the Total Borrowing Base Value; and
(b)the Borrowing Base Value attributable to the Unencumbered Loans and Borrowing Base Eligible Real Estate Assets included in the Borrowing Base shall not, collectively, be less than 40% of the total Borrowing Base Value.
“Business Day” means (a) any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of New York or is a day on which banking institutions located in such state are authorized or required by law or other governmental action to close and (b) with respect to all notices, determinations, fundings and payments in connection with the Adjusted Eurodollar Rate or any Eurodollar Rate Loans, the term “Business Day” means any day which is a Business Day described in clause (a) and which is also a day for trading by and between banks in Dollar deposits in the London interbank market.
“CAD” means net income (loss) attributable to common stockholders in the Parent Guarantor calculated in accordance with GAAP, adjusted by adding (or subtracting) non-controlling interests attributable to the Borrower as the operating partnership, if any, and the following items: depreciation and amortization items including depreciation and amortization, straight-line rental income or expense, amortization of above/below market leases, amortization of deferred financing costs, amortization of discount on financings, and equity-based compensation; cash flow related to CDO equity interests; accretion of unconsolidated CDO bond discounts; non-cash net interest
6
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
income in consolidated CDOs; unrealized gain (loss) from the change in fair value; realized gain (loss) on investments and other, excluding accelerated amortization related to sales of CDO bonds or other investments; provision for (reversal of) loan losses; impairment on property; acquisition gains or losses; distributions to joint venture partners; transaction costs; foreign currency gains (losses); impairment on goodwill and other intangible assets and gains (losses) on sales; and one-time events pursuant to changes in GAAP and certain other non-recurring items. For example, CAD has been adjusted to exclude non-recurring gain (loss) from deconsolidation of certain CDOs. These items, if applicable, include any adjustments for unconsolidated ventures. For the avoidance of doubt, the calculation of “CAD” as provided herein should be consistent with the calculation of CAD disclosed in any financial statements of the Parent Guarantor.
“Capital Lease” means, as applied to any Person, any lease of any property (whether real, personal or mixed) by a Person as lessee which, in conformity with GAAP, is accounted for as a capital lease on the balance sheet of that Person; provided, however, that notwithstanding the foregoing, in no event will any lease that would have been categorized as an operating lease in accordance with GAAP as of the Original Closing Date be considered to be a Capital Lease for any purpose under this Agreement.
“Capital Lease Obligations” means, with respect to any Person, the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as Capital Leases on a balance sheet of such Person under GAAP; and, for the purposes of the Credit Documents, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP.
“Cash” means money, currency or a credit balance in any demand or Deposit Account.
“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the Issuing Bank or Swing Line Lender (as applicable) and the Lenders, as collateral for L/C Obligations, Obligations in respect of Swing Line Loans, or obligations of Lenders to fund participations in respect of either thereof (as the context may require), cash or deposit account balances or, if the Administrative Agent, the Issuing Bank or Swing Line Lender shall agree in their sole discretion, one or more letters of credit issued by a commercial bank, or if the Administrative Agent, the Issuing Bank or Swing Line Lender, as applicable, and the Requisite Lenders agree, other credit support, in each case pursuant to documentation in form and substance satisfactory to (a) the Administrative Agent, (b) the Issuing Bank or the Swing Line Lender (as applicable) and (c) in the case of other credit support only, the Requisite Lenders. “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
“Cash Equivalents” means, as at any date of determination, any of the following: (a) marketable direct obligations issued by, or unconditionally guaranteed by, the United States government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition; (b) certificates of deposit, time deposits, eurodollar time deposits, bankers’ acceptances or overnight bank deposits having
7
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
maturities of one year or less from the date of acquisition issued by any Lender or by any commercial bank organized under the laws of the United States of America, any state thereof, the District of Columbia, any foreign bank, or its branches or agencies (fully protected against currency fluctuations), in each case, having combined capital and surplus of not less than $500,000,000; (c) commercial paper of an issuer rated at least A-2 by S&P or P-2 by Moody’s, or carrying an equivalent rating by a nationally recognized rating agency, if both of the two named rating agencies cease publishing ratings of commercial paper issuers generally, and maturing one year or less from the date of acquisition; (d) repurchase obligations of any Lender or of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of no more than 30 days with respect to securities issued or fully guaranteed or insured by the United States government; (e) shares of money market mutual or similar funds which invest exclusively in assets satisfying the requirements of clauses (a) through (d) of this definition; and (f) the equivalents of the foregoing in any jurisdiction in which any Consolidated Subsidiary or Non-Consolidated Entity is organized or doing business.
“CDO Bonds” mean the collateralized debt obligation securities owned or otherwise held (including via book entry) directly by each of NRFC SBK Holdings, LLC and NRFC SBK Subsidiary, LLC in accordance with this Agreement; provided that to the extent such securities are not held via book entry, either the Borrower, an Affiliate of the Borrower or an agent or custodian acting on behalf of one of the foregoing shall possess an instrument evidencing such securities.
“Change in Law” means the occurrence, after the Original Closing Date, 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, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States 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:
(a)any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of 50% or more of the equity securities of the Parent Guarantor entitled to vote for members of the board of directors or equivalent governing body of the Parent Guarantor on a fully-diluted basis (and taking into
8
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\0000000.11
account all such securities that such “person” or “group” has the right to acquire pursuant to any option right); or
(b)during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Parent Guarantor cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body; or
(c)at any time, (i) the Parent Guarantor shall cease to be the sole general partner of the Borrower or shall cease to own, directly, (x) 100% of the general partnership interests of the Borrower or (y) Equity Interests of the Borrower representing at least 60% of the total economic interests of the Equity Interests of the Borrower, in each case free and clear of all Liens or (ii) any holder of a limited partnership interest in the Borrower is provided with or obtains voting rights with respect to such limited partnership interest that deprive the Parent Guarantor, in its capacity as general partner of the Borrower, of its right to manage the Borrower in the ordinary course of business and consistent with its practice on the Amendment and Restatement Date.
“Collateral” means, collectively, all of the real, personal and mixed property (including Equity Interests) in which Liens are purported to be granted pursuant to the Collateral Documents as security for the Obligations.
“Collateral Agent” as defined in the preamble hereto.
“Collateral Documents” means the Pledge Agreement and all other instruments, documents and agreements delivered by or on behalf of any Credit Party pursuant to this Agreement or any of the other Credit Documents in order to grant to Collateral Agent, for the benefit of Secured Parties, a Lien on any real, personal or mixed property of that Credit Party as security for the Obligations.
“Combined Total Debt” means, as at any date of determination, total Indebtedness (calculated at the outstanding principal amount based on the contract and not reflecting purchase accounting adjustments pursuant to GAAP) of (i) the Parent Guarantor and its Consolidated Subsidiaries, in each case, as determined on a consolidated basis in accordance with GAAP, and (ii) Non-Consolidated Real Estate Entities (only to the extent allocable (based on the percentage ownership) to the Parent Guarantor, the Borrower or any Wholly Owned Subsidiary of the Parent Guarantor or the Borrower), excluding Excluded Indebtedness and Junior Subordinated Notes.
“Combined Total Recourse Debt” means, as at any date of determination, total Recourse Indebtedness (calculated at the outstanding principal amount based on the contract and
9
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
not reflecting purchase accounting adjustments pursuant to GAAP) of the Parent Guarantor and its Consolidated Subsidiaries, in each case, as determined on a consolidated basis in accordance with GAAP, excluding Excluded Indebtedness and Junior Subordinated Notes.
“Commitment” means any Revolving Commitment.
“Compliance Certificate” means a Compliance Certificate substantially in the form of Exhibit C.
“Consolidated Cash Management System” means the cash management system of the Parent Guarantor and its Subsidiaries substantially as in effect on the Original Closing Date.
“Consolidated Subsidiary” means, with respect to any Person, (a) any Subsidiary of such Person and (b) any Person consolidated in the financial statements of such Person in accordance with GAAP. Unless otherwise expressly provided, all references in the Credit Documents to a “Consolidated Subsidiary” means a Consolidated Subsidiary of the Parent Guarantor.
“Consolidated Tangible Net Worth” means, as of any date of determination, for the Parent Guarantor and its Consolidated Subsidiaries on a consolidated basis, (a) consolidated total shareholders’ equity of the Parent Guarantor and its Consolidated Subsidiaries on that date determined in accordance with GAAP, minus (b) the Intangible Assets of the Parent Guarantor and its Consolidated Subsidiaries on that date (other than Intangible Assets relating to purchase price accounting for real property), plus (c) accumulated depreciation and amortization expense on the assets of the Parent Guarantor and its Consolidated Subsidiaries on that date determined in accordance with GAAP less (d) GAAP equity related to consolidated CDOs.
“Contingent Obligations” means, as to any Person, without duplication, (a) any contingent obligation with respect to Indebtedness of such Person required to be included in such Person’s balance sheet in accordance with GAAP, and (b) any obligation required to be included in the disclosure contained in the footnotes to such Person’s financial statements in accordance with GAAP, guaranteeing partially or in whole any Indebtedness, exclusive of (i) contractual indemnities (including, without limitation, any indemnity or price-adjustment provision relating to the purchase or sale of securities or other assets) and (ii) guarantees of non-monetary obligations (other than guarantees of completion), in each case under clauses (i) and (ii) which have not yet been called on or quantified, of such Person or of any other Person. The amount of any Contingent Obligation described in clause (b) above in this definition shall be deemed to be (A) with respect to a guaranty of interest, interest and principal, or operating income, the sum of all payments required to be made thereunder (which in the case of an operating income guaranty shall be deemed to be equal to the debt service for the note secured thereby), calculated at the interest rate applicable to such Indebtedness, through (x) in the case of an interest or interest and principal guaranty, the stated date of maturity of the obligation (and commencing on the date interest could first be payable thereunder), or (y) in the case of an operating income guaranty, the date through which such guaranty will remain in effect, and (B) with respect to all guarantees not covered by the preceding clause (A), an amount equal to the stated or determinable amount of the primary obligation in respect of which such guaranty is made or, if not stated or determinable, the maximum reasonably anticipated liability in
10
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
respect thereof (assuming such Person is required to perform thereunder) as recorded on the balance sheet and in the footnotes to the most recent financial statements required to be delivered pursuant to Sections 5.1(a) and 5.1(b). Notwithstanding anything contained herein to the contrary, guarantees of completion or other performance shall not be deemed to be Contingent Obligations unless and until a claim for payment has been made thereunder, at which time any such guaranty of completion or other performance shall be deemed to be a Contingent Obligation in an amount equal to any such claim. Subject to the preceding sentence, (1) in the case of a joint and several guaranty given by such Person and another Person (but only to the extent such guaranty is Recourse Indebtedness, directly or indirectly to such Person or any of its Subsidiaries), the amount of the guaranty shall be deemed to be 100% thereof unless and only to the extent that (i) such other Person has delivered Cash or Cash Equivalents to secure all or any part of such Person’s obligations under such joint and several guaranty or (ii) such other Person holds an Investment Grade Credit Rating from any of Fitch, Xxxxx’x or S&P, or has creditworthiness otherwise reasonably acceptable to the Administrative Agent, and (2) in the case of a guaranty (whether or not joint and several) of an obligation otherwise constituting Indebtedness of such Person, the amount of such guaranty shall be deemed to be only that amount in excess of the amount of the obligation constituting Indebtedness of such Person. Notwithstanding anything contained herein to the contrary, “Contingent Obligations” shall not be deemed to include guarantees of loan commitments or of construction loans to the extent the same have not been drawn.
“Contractual Obligation” means, as applied to any Person, any provision of any Equity Interests issued by that Person or of any indenture, mortgage, deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties is bound or to which it or any of its properties is subject.
“Contributing Guarantors” as defined in Section 7.2.
“Control” means the possession, directly or indirectly, by ownership, contract or otherwise, of the power to direct or cause the direction of the management or policies of a Person.
“Conversion/Continuation Date” means the effective date of a continuation or conversion, as the case may be, as set forth in the applicable Conversion/Continuation Notice.
“Conversion/Continuation Notice” means a Conversion/Continuation Notice substantially in the form of Exhibit A‑2.
“Counterpart Agreement” means a Counterpart Agreement substantially in the form of Exhibit F delivered by a Credit Party pursuant to Section 5.8.
“Credit Date” means the date of a Credit Extension.
“Credit Document” means any of this Agreement, the Notes, if any, the Collateral Documents, any documents or certificates executed by the Borrower in favor of Issuing Bank relating to Letters of Credit, and all other documents, certificates, instruments or agreements executed and delivered by or on behalf of a Credit Party for the benefit of any Agent, Issuing Bank or any Lender required to be delivered under any of the foregoing.
11
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
“Credit Extension” means the making of a Loan or the issuing of a Letter of Credit.
“Credit Party” means the Borrower and the other Guarantors from time to time party to a Credit Document.
“Default” means a condition or event that, with notice or lapse of time or both, shall become an Event of Default.
“Default Rate” means (a) when used with respect to Obligations other than Letter of Credit fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Margin applicable to Base Rate Loans, plus (iii) 3% per annum, and (b) when used with respect to Letter of Credit fees, a rate equal to the Applicable Margin for Base Rate Loans plus 3% per annum.
“Defaulting Lender” means, subject to Section 2.22(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the Issuing Bank, the Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swing Line Loans) within two Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent, the Issuing Bank or the Swing Line Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under the Bankruptcy Code, or any 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, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interests in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental
12
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.22(b)) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Borrower, the Issuing Bank, the Swing Line Lender and each other Lender promptly following such determination.
“De-Minimis Subsidiary” means, at any time, any Subsidiary of the Parent Guarantor that, on a consolidated basis with its Subsidiaries, has shareholders’ equity of less than $5,000,000.
“Deposit Account” means a demand, time, savings, passbook or like account with a bank, savings and loan association, credit union or like organization, other than an account evidenced by a negotiable certificate of deposit.
“Designated Jurisdiction” means any country or territory to the extent that such country or territory itself is the subject of any Sanction.
“Disqualified Equity Interests” means, with respect to any Person, any Equity Interests of such Person which, by its terms, or by the terms of any security into which it is convertible or for which it is putable or exchangeable, or upon the happening of any event, matures or is mandatorily redeemable (other than solely for Equity Interests which are not Disqualified Equity Interests) pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (in each case, other than solely as a result of a change of control or asset sale), in whole or in part, in each case prior to the date that is 91 days after the Revolving Commitment Termination Date; provided, however, that if such Equity Interests are issued to any plan for the benefit of employees of the Parent Guarantor or its direct or indirect Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Equity Interests solely because they may be required to be repurchased in order to satisfy applicable statutory or regulatory obligations.
“Dollars” and the sign “$” mean the lawful money of the United States of America.
“Domestic Subsidiary” means any Subsidiary organized under the laws of the United States of America, any State thereof or the District of Columbia.
“Eligible Assignee” means any Person other than a natural Person that is (a) a Lender, an Affiliate of any Lender or a Related Fund (any two or more Related Funds being treated as a single Eligible Assignee for all purposes hereof), or (b) a commercial bank, insurance company, investment or mutual fund or other entity that is an “accredited investor” (as defined in Regulation D under the Securities Act) and which extends credit or buys loans in the ordinary course of business; provided no Credit Party nor any Affiliate thereof shall be an Eligible Assignee.
13
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
“Eligible Real Estate Asset” means any Real Estate Asset the primary use of which is retail, hotel, office, industrial, lodging, multi-family housing, manufactured housing and/or healthcare.
“Employee Benefit Plan” means (a) any “employee benefit plan” as defined in Section 3(3) of ERISA which is or was sponsored, maintained or contributed to by, or required to be contributed to by, the Parent Guarantor or any of its Subsidiaries other than a Multiemployer Plan or (b) any “employee benefit plan” as defined in Section 3(3) of ERISA, other than a Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code or Section 302 of ERISA, with respect to any ERISA Affiliates of the Parent Guarantor or any of its Subsidiaries.
“Environmental Claim” means any investigation, notice of violation, claim, action, suit, proceeding, demand, abatement order or other order or directive (conditional or otherwise), by any Governmental Authority, arising or resulting from or related to any Hazardous Material Activity or violation of any Environmental Law.
“Environmental Laws” means any and all applicable foreign or domestic, federal or state (or any subdivision of either of them), statutes, ordinances, orders, rules, regulations, judgments, Governmental Authorizations, or any other legally binding requirements of Governmental Authorities relating to (a) the protection of the environment, including those relating to any Hazardous Materials Activity; or (b) the generation, use, storage, transportation or disposal of Hazardous Materials, in any manner applicable to the Parent Guarantor or any of its Subsidiaries or any Facility.
“Equity Interests” means the capital stock of a corporation, the membership interests of a limited liability company, the partnership interests in a partnership, the joint venture interests in a joint venture, the interests of a beneficiary under a trust or business trust, and all other evidence or instruments of ownership in any legal entity or trust, together with (i) any rights to receive distributions or payments from such corporation, limited liability company, partnership, joint venture, trust, business trust or other legal entity, and all other economic rights and interests of any nature arising from such Person, (ii) any management and voting rights with respect to such corporation, limited liability company, partnership, joint venture, trust, business trust or other legal entity, and (iii) all other rights of and benefits of any nature arising or accruing with respect to the ownership of the capital stock, membership interests, partnership interests, joint venture interests or beneficial interests in such corporation, limited liability company, partnership, joint venture, trust, business trust or other legal entity.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor thereto.
“ERISA Affiliate” means, as applied to any Person, (a) any corporation which is a member of a controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code of which that Person is a member; (b) any trade or business (whether or not incorporated) which is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Internal Revenue Code of which that Person is a member; and (c) any member of an affiliated service group within the meaning of Section 414(m) or (o) of the
14
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
Internal Revenue Code of which that Person, any corporation described in clause (a) above or any trade or business described in clause (b) above is a member. Any former ERISA Affiliate of the Parent Guarantor or any of its Subsidiaries shall continue to be considered an ERISA Affiliate of the Parent Guarantor or any such Subsidiary within the meaning of this definition with respect to the period such entity was an ERISA Affiliate of the Parent Guarantor or such Subsidiary and with respect to liabilities arising after such period for which the Parent Guarantor or such Subsidiary could be liable under the Internal Revenue Code or ERISA.
“ERISA Event” means (a) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder with respect to any Pension Plan (excluding those for which the provision for 30‑day notice to the PBGC has been waived by regulation); (b) the failure to meet the minimum funding standard of Section 412 of the Internal Revenue Code with respect to any Pension Plan (whether or not waived in accordance with Section 412(c) of the Internal Revenue Code) or the failure to make by its due date a required installment under Section 430(j) of the Internal Revenue Code with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (c) the provision by the administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA; (d) the withdrawal by the Parent Guarantor, any of its Subsidiaries or any of their respective ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting in liability to the Parent Guarantor, any of its Subsidiaries or any of their respective Affiliates pursuant to Section 4063 or 4064 of ERISA; (e) the institution by the PBGC of proceedings to terminate any Pension Plan, or the occurrence of any event or condition which might constitute grounds under ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (f) the imposition of liability on the Parent Guarantor, any of its Subsidiaries or any of their respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (g) the withdrawal of the Parent Guarantor, any of its Subsidiaries or any of their respective ERISA Affiliates in a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential liability therefore, or the receipt by the Parent Guarantor, any of its Subsidiaries or any of their respective ERISA Affiliates of notice from any Multiemployer Plan that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; (h) the occurrence of an act or omission which could give rise to the imposition on the Parent Guarantor, any of its Subsidiaries or any of their respective ERISA Affiliates of fines, penalties, taxes or related charges under Chapter 43 of the Internal Revenue Code or under Section 409, Section 502(c), (i) or (l), or Section 4071 of ERISA in respect of any Employee Benefit Plan; (i) receipt from the Internal Revenue Service of notice of the failure of any Pension Plan (or any other Employee Benefit Plan intended to be qualified under Section 401(a) of the Internal Revenue Code) to qualify under Section 401(a) of the Internal Revenue Code, or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the Internal Revenue Code; or (j) the imposition of a lien pursuant to Section 430(k) of the Internal Revenue Code or ERISA or a violation of Section 436 of the Internal Revenue Code.
“Eurodollar Rate” means for any Interest Rate Determination Date with respect to an Interest Period for a Eurodollar Rate Loan, the rate per annum equal to (a) the London interbank
15
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
offered rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate for U.S. Dollars) for deposits in Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period and amounts in same day funds comparable to the principal amount of the Eurodollar Rate Loan, determined as of approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date, as displayed on pages LIBOR01 or LIBOR02 of the Reuters screen that displays such rate (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by Administrative Agent in its reasonable discretion), or (b) in the event the rates referenced in the preceding clause (a) are not available, the rate per annum equal to the offered quotation rate to first class banks in the London interbank market by DBNY for deposits (for delivery on the first day of the relevant period) in Dollars of amounts in same day funds comparable to the principal amount of the Eurodollar Rate Loan for which the Eurodollar Rate is then being determined with maturities comparable to such period as of approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date.
“Eurodollar Rate Loan” means a Loan bearing interest at a rate determined by reference to the Adjusted Eurodollar Rate.
“Eurodollar Reserve Percentage” means, for any day during any Interest Period, the reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such day, whether or not applicable to any Lender, under regulations issued from time to time by the Federal Reserve Board for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”). The Adjusted Eurodollar Rate for each outstanding Eurodollar Rate Loan shall be adjusted automatically as of the effective date of any change in the Eurodollar Reserve Percentage.
“Event of Default” means each of the conditions or events set forth in Section 8.1.
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and any successor statute.
“Excluded Indebtedness” means Indebtedness included in the Parent Guarantor’s financial statements in accordance with GAAP but which none of the Parent Guarantor or its Subsidiaries (other than Subsidiaries that are CDOs or other securitization entities) is obligated to pay, including all CDOs or other securitization vehicles that are consolidated in accordance with GAAP.
“Excluded Subsidiary” means (i) a Foreign Subsidiary, (ii) any De-Minimis Subsidiary, (iii) any Subsidiary that is prohibited by applicable Law or by a Contractual Obligation in existence or created at the time of the Subsidiary’s creation or acquisition (other than any Contractual Obligation entered into solely for the purpose of causing such Subsidiary to be an Excluded Subsidiary) from guaranteeing the Guaranteed Obligations, if and for so long as such prohibition exists (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9406, 9407, 9408 or 9409 of the UCC (or any successor provision or provisions) of any
16
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
relevant jurisdiction or any other applicable Law or principles of equity); (iv) any Subsidiary that is neither a Wholly Owned Subsidiary of the Parent Guarantor nor a Wholly Owned Subsidiary of the Borrower; and (v) a Subsidiary that is a borrower or guarantor of secured Indebtedness (or a direct or indirect parent of such borrower or guarantor (other than the Borrower)), and the terms of such secured Indebtedness prohibit such Subsidiary from guaranteeing the Guaranteed Obligations; provided, however, that in the case of clauses (iii), (iv) and (v) above, such Subsidiary shall no longer constitute an Excluded Subsidiary at such time as the condition prohibiting it from guaranteeing the Guaranteed Obligations, to the extent severable, is no longer effective or enforceable. Notwithstanding the foregoing, in no event shall the Borrower be deemed to be an Excluded Subsidiary.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 2.23) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.20, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.20(g) and (d) any withholding Taxes imposed under FATCA.
“Facility” means any real property (including all buildings, fixtures or other improvements located thereon) at any time owned, leased, or operated by the Parent Guarantor or any of its Subsidiaries.
“Facility Increase” as defined in Section 2.24(a).
“Facility Increase Arrangers” as defined in Section 2.24(b).
“Fair Market Value” means the price that would be paid in an arm’s-length transaction between an informed and willing seller under no compulsion to sell and an informed and willing buyer under no compulsion to buy, as reasonably determined by the Person making an Asset Sale or other determination of Fair Market Value.
“Fair Share” as defined in Section 7.2.
“Fair Share Contribution Amount” as defined in Section 7.2.
“FATCA” means Sections 1471 through 1474 of the Code, as of the Original Closing Date (or any amended or successor version that is substantively comparable and not materially more
17
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
onerous to comply with), any current or future Treasury regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to such intergovernmental agreement.
“Federal Funds Effective Rate” means for any day, the rate per annum (expressed, as a decimal, rounded upwards, if necessary, to the next higher 1/10,000 of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided, (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate charged to Administrative Agent on such day on such transactions as reasonably determined by Administrative Agent.
“Fee Letter” means that certain Fee Letter dated as of August 5, 2014 among the Parent Guarantor and the Lead Arranger.
“Financial Officer Certification” means, with respect to the financial statements for which such certification is required, the certification of the chief financial officer of the Borrower that such financial statements fairly present, in all material respects, the financial condition of the Parent Guarantor and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year‑end adjustments.
“First Amendment” means that certain First Amendment to Credit and Guaranty Agreement, dated as of November 19, 2014, among the Parent Guarantor, the other Guarantors, the Administrative Agent and the Lenders party thereto.
“First Priority” means, with respect to any Lien purported to be created in any Collateral pursuant to any Collateral Document, that such Lien is the only Lien to which such Collateral is subject, other than any Permitted Lien.
“Fiscal Quarter” means a fiscal quarter of any Fiscal Year.
“Fiscal Year” means the fiscal year of the Parent Guarantor and its Subsidiaries ending on December 31 of each calendar year.
“Fitch” means Fitch, Inc.
“Fixed Charge Coverage Ratio” means, as of any date of determination, the ratio of (a) Adjusted EBITDA to (b) Fixed Charges, in each case, for the most recently completed four (4) Fiscal Quarter period (with respect to the four (4) Fiscal Quarter period ending March 31, 2015,
18
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
calculated in accordance with the last sentence of the definitions of Adjusted EBITDA and Fixed Charges).
“Fixed Charges” means, for any period, without duplication, the sum of (a) Interest Expense of the type described in clause (i) of the definition thereof for such period but excluding non-cash Interest Expense relating to exchangeable notes and amortization of deferred financing costs, plus (b) the aggregate amount of scheduled principal payments attributable to Combined Total Debt (excluding optional prepayments and scheduled principal payments due on maturity of any such Indebtedness) required to be made during such period by the Parent Guarantor or any of its Consolidated Subsidiaries, plus (c) the amount of dividends or distributions paid or required to be paid during such period in respect of preferred Equity Interests (excluding any balloon payments payable on maturity of such Equity Interests), in each case of the Parent Guarantor and its Consolidated Subsidiaries. Notwithstanding anything herein to the contrary, Fixed Charges for the four-Fiscal Quarter period ending (a) on March 31, 2015 shall equal (x) Fixed Charges for the three consecutive Fiscal Quarter period ending March 31, 2015 times (y) 4/3; and (b) after March 31, 2015 shall be Fixed Charges for the most recent four-Fiscal Quarter period then ended.
“Foreign Lender” means a Lender that is not a U.S. Person.
“Foreign Subsidiary” means (a) any Subsidiary that is not a Domestic Subsidiary or (b) any Subsidiary that is a Domestic Subsidiary that is treated as a disregarded entity for U.S. federal income tax purposes and substantially all of the assets of which consists of Equity Interests of one or more Foreign Subsidiaries that are controlled foreign corporations within the meaning of Section 957 of the Internal Revenue Code.
“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to the Issuing Bank, such Defaulting Lender’s Pro Rata Share of the outstanding Letter of Credit Usage other than Letter of Credit Usage as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Pro Rata Share of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders in accordance with the terms hereof.
“Funding Guarantors” as defined in Section 7.2.
“Funding Notice” means a notice substantially in the form of Exhibit A‑1.
“GAAP” means, subject to the limitations on the application thereof set forth in Section 1.2, generally accepted accounting principles in the United States of America as in effect from time to time.
“Good Faith Contest” means, in the case of any disputed Tax, Lien, or Environmental Claim, that such matter is being contested in good faith by appropriate proceedings promptly instituted and diligently conducted, so long as (a) adequate reserves or other appropriate provision, as shall be required in conformity with GAAP shall have been made therefor, and (b) in the case of such matter which has or may become a Lien against any of the Collateral, such contest
19
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
proceedings conclusively operate to stay the sale of any portion of the Collateral to satisfy such Tax or claim.
“Governmental Acts” means any act or omission, whether rightful or wrongful, of any present or future Governmental Authority.
“Governmental Authority” means any nation or government, any state or other political subdivision thereof and any entity of competent authority and jurisdiction exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government.
“Governmental Authorization” means any permit, license, authorization, plan, directive, consent order or consent decree of or from any Governmental Authority.
“Guaranteed Obligations” as defined in Section 7.1.
“Guarantor” means (a) on the Amendment and Restatement Date, the Parent Guarantor, the Borrower and each of the entities listed on Schedule 1.1(b) hereto and (b) after the Amendment and Restatement Date, each Person listed in clause (a) and each other Subsidiary of the Parent Guarantor required to deliver a guaranty or guaranty supplement pursuant to Section 5.8.
“Guarantor Subsidiary” means each Guarantor other than the Parent Guarantor and the Borrower.
“Guaranty” means the guaranty of each Guarantor set forth in Section 7.
“Hazardous Materials” means any substance, material, or waste that is classified, characterized or regulated as “hazardous”, “toxic”, a “pollutant”, or “contaminant”, or words of similar meaning under the Environmental Laws; provided, however, that “Hazardous Materials” shall not include the foregoing items to the extent (a) the same exist on the applicable Real Estate Asset in retail packaging for sale as consumer products or are present in negligible amounts in connection with the construction, heating and cooling or repair and maintenance activities at such property and are stored and used in accordance with all Environmental Laws or (b) are used in connection with a tire or battery retail store provided the same are stored, sold and used in accordance with all Environmental Laws.
“Hazardous Materials Activity” means any condition, event or occurrence involving any Hazardous Material that has resulted in a violation of Environmental Laws, including the use, manufacture, possession, storage, holding, presence, existence, location, Release, threatened Release, discharge, placement, generation, transportation, processing, construction, treatment, abatement, removal, remediation, disposal, disposition or handling of any Hazardous Materials in violation of Environmental Laws.
“Hedge Agreement” means an interest rate or currency swap, cap or collar agreement, foreign exchange agreement, commodity contract or similar arrangement entered into by the Parent Guarantor or any of its Subsidiaries providing for protection against fluctuations in
20
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
interest rates, currency exchange rates, commodity prices or the exchange of nominal interest obligations, either generally or under specific contingencies.
“Highest Lawful Rate” means the maximum lawful interest rate, if any, that at any time or from time to time may be contracted for, charged, or received under the laws applicable to any Lender which are presently in effect or, to the extent allowed by law, under such applicable laws which may hereafter be in effect and which allow a higher maximum nonusurious interest rate than applicable laws now allow.
“Historical Financial Statements” means as of the Original Closing Date, (a) the audited consolidated financial statements of the Parent Guarantor and its Subsidiaries, for the Fiscal Year ended December 31, 2013, consisting of a consolidated balance sheet and the related consolidated statements of income and cash flows for such Fiscal Year, and (b) the unaudited financial statements of the Parent Guarantor and its Subsidiaries for each Fiscal Quarter ended after December 31, 2013 and that have been issued since December 13, 2013 and prior to the Original Closing Date, consisting of a consolidated balance sheet and the related consolidated statements of income and cash flows for the three‑, six‑ or nine‑month period, as applicable, ending on such date. The financial statements filed with or furnished to the SEC by the Parent Guarantor (and which are available online) shall be deemed to have been provided by the Parent Guarantor.
“Imputed Value” means (i) the appraised value (based on the most recent appraisal received by the applicable lender(s)) of the underlying property with respect to the applicable mezzanine loan less, in each case, (ii) the amount of any subsequent loan loss impairment of the subject mezzanine loan.
“Increased Amount Date” as defined in Section 2.24(a).
“Increased‑Cost Lenders” as defined in Section 2.23.
“Indebtedness” means, with respect to any Person at any date, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of property or services (other than trade payables and accrued expenses incurred by such Person in the ordinary course of business) and only to the extent such obligations constitute indebtedness for purposes of GAAP, (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all Capital Lease Obligations of such Person, (f) all obligations of such Person, contingent or otherwise, as an account party or applicant under acceptance, letter of credit or similar facilities, (g) all obligations of such Person, contingent or otherwise, to purchase, redeem, retire or otherwise acquire for value any Disqualified Equity Interests of such Person (other than (i) obligations existing on the Original Closing Date that any direct or indirect parent of such Person has the right (subject to satisfaction of applicable securities law requirements, including the filing of registration statements) to satisfy by delivery of its Qualified Equity Interests and (ii) obligations that any direct or indirect parent of such Person is given the right to satisfy by delivery of its Qualified Equity Interests), (h) all Contingent
21
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
Obligations of such Person in respect of the foregoing items (a) through (g), (i) all obligations of the kind referred to in clause (a) through (h) above secured by any Lien on property (including, without limitation, accounts and contract rights) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation, and (j) the net obligations of such Person in respect of Hedge Agreements. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness expressly provide that such Person is not liable therefor. The amount of any Indebtedness under clause (i) above shall be limited to the lesser of the amount of such Indebtedness that is Non-Recourse Indebtedness or the fair market value of the assets securing such Indebtedness that is Non-Recourse Indebtedness, as reasonably determined by the Parent Guarantor. The amount of Indebtedness of any Person shall be calculated at the outstanding principal amount based on the contract and not reflecting purchase accounting or other adjustments pursuant to GAAP.
“Indemnified Liabilities” means, collectively, any and all liabilities, obligations, losses, damages (including natural resource damages), penalties, claims, actions, judgments, suits, costs (including the costs of any investigation, study, sampling, testing, abatement, cleanup, removal, remediation or other response action necessary to remove, remediate, clean up or xxxxx any Hazardous Materials present in the environment at concentrations exceeding those allowed by Environmental Laws), expenses and disbursements of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel for Indemnitees in connection with any investigative, administrative or judicial proceeding or hearing commenced or threatened by any Person, whether or not any such Indemnitee shall be designated as a party or a potential party thereto, and any fees or expenses incurred by Indemnitees in enforcing this indemnity; provided that the Indemnitees shall use a single outside counsel for all such Indemnitees taken as a whole (and, if reasonably necessary, one local counsel in any relevant material jurisdiction) to represent them, with exceptions in the case of conflicts of interest) (but excluding “overhead” costs and expenses), whether direct, indirect, special or consequential (but subject to Section 10.3(b)) and whether based on any federal, state or foreign laws, statutes, rules or regulations (including securities and commercial laws, statutes, rules or regulations and Environmental Laws), on common law or equitable cause or on contract or otherwise, that may be imposed on, incurred by, or asserted against any such Indemnitee, in any manner relating to or arising out of (a) an investigation, suit, action or other legal proceedings relating to this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby (including the Lenders’ agreement to make Credit Extensions, the syndication of the credit facilities provided for herein or the use or intended use of the proceeds thereof, any amendments, waivers or consents with respect to any provision of this Agreement or any of the other Credit Documents, or any enforcement of any of the Credit Documents (including any sale of, collection from, or other realization upon any of the Collateral or the enforcement of the Guaranty)); (b) the Fee Letter and any related fee letter delivered to the Parent Guarantor or the Borrower with respect to the transactions contemplated by this Agreement; or (c) any Environmental Claim or any Hazardous Materials Activity relating to or arising from any past or present activity, operation, land ownership, or practice of the Parent Guarantor or any of its Subsidiaries.
22
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Credit Party under any Credit Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Indemnitee” as defined in Section 10.3(a).
“Industrial Portfolio Interests” means the preferred equity interests issued by Lower Terra JV, LLC that are owned or otherwise held directly by USIP Terra Preferred-T, LLC in accordance with this Agreement, valued as undepreciated carrying value of gross assets less impairments, total liabilities, value of common equity and minority interests.
“Industrial Portfolio Interests Loan Documents” means that certain Reaffirmation, Consent To Transfer and Confirmation of Obligations dated on or around the Original Closing Date among, inter alios, UB II (Angstrom), LLC and the other borrowers named therein, the guarantors named therein and U.S Bank National Association, as trustee and all material agreements entered into in connection therewith.
“Intangible Assets” means assets that are considered to be intangible assets under GAAP, including customer lists, goodwill, computer software, copyrights, trade names, trademarks, patents, franchises, licenses, unamortized deferred charges, unamortized debt discount and capitalized research and development costs.
“Interest Expense” means, for any period, the sum (without duplication) for such period of: (i) total interest expense, whether paid or accrued, of the Parent Guarantor and its Consolidated Subsidiaries, including fees payable in connection with this Agreement, charges in respect of letters of credit and the portion of any Capital Lease Obligations allocable to interest expense, but excluding amortization or write-off of debt discount and expense (except as provided in clause (ii) below), (ii) amortization of costs related to interest rate protection contracts and rate buydowns, (iii) capitalized interest and (iv) interest incurred on any liability or obligation that constitutes a Contingent Obligation of the Parent Guarantor or any of its Consolidated Subsidiaries, but excluding interest expense arising with respect to Excluded Indebtedness and non-cash interest expense relating to exchangeable notes.
“Interest Payment Date” means with respect to (a) any Loan that is a Base Rate Loan, each January 1, April 1, July 1 and October 1, commencing on the first such date to occur after the Original Closing Date and the final maturity date of such Loan; and (b) any Loan that is a Eurodollar Rate Loan, the last day of each Interest Period applicable to such Loan; provided, in the case of each Interest Period of longer than three months “Interest Payment Date” shall also include each date that is three months, or an integral multiple thereof, after the commencement of such Interest Period.
“Interest Period” means, in connection with a Eurodollar Rate Loan, an interest period of one‑, two‑, three‑ or six- months, as selected by the Borrower in the applicable Funding Notice or Conversion/Continuation Notice, (a) initially, commencing on the Credit Date or Conversion/Continuation Date thereof, as the case may be; and (b) thereafter, commencing on the day on which the immediately preceding Interest Period expires; provided, (i) if an Interest Period
23
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on the next succeeding Business Day unless no further Business Day occurs in such month, in which case such Interest Period shall expire on the immediately preceding Business Day; (ii) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to clause (iii) of this definition, end on the last Business Day of a calendar month; and (iii) no Interest Period with respect to any portion of the Revolving Loans shall extend beyond the Revolving Commitment Termination Date.
“Interest Rate Determination Date” means, with respect to any Interest Period, the date that is two Business Days prior to the first day of such Interest Period.
“Internal Revenue Code” means the Internal Revenue Code of 1986.
“Investment” means (a) any purchase or other acquisition by the Parent Guarantor or any of its Subsidiaries of, or of a beneficial interest in, any Equity Interests, indebtedness or other securities of any other Person; (b) any loan, advance (other than advances to employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures in the ordinary course of business) or capital contributions by the Parent Guarantor or any of its Subsidiaries to any other Person, including all Indebtedness of that other Person that are not current assets or did not arise from sales to that other Person in the ordinary course of business, (c) the purchase or other acquisition (in one transaction or a series of transactions) of all or substantially all of the property and assets or business of another Person or assets constituting a business unit, line of business or division of such Person, (d) the purchase or other acquisition (in one transaction or a series of transactions) of any Real Estate Asset (and in the case of a Real Estate Asset under development or constituting an unimproved property, capital expenditures with respect to the development or redevelopment thereof, as the case may be) and (e) all investments consisting of any exchange traded or over the counter derivative transaction, including any Hedge Agreement, whether entered into for hedging or speculative purposes or otherwise. The amount of any Investment of the type described in clauses (a), (b), (c), (d) and (e) shall be the original cost of such Investment plus the cost of all additions thereto, minus repayment of or returns of invested capital on such Investment, but without any adjustments for increases or decreases in value, or write‑ups, write‑downs or write‑offs with respect to such Investment.
“Investment Grade Credit Rating” means (a) with respect to Fitch, a credit rating of BBB- or higher, (b) with respect to Xxxxx’x, a credit rating of Baa3 or higher and (c) with respect to S&P, a credit rating of BBB- or higher.
“IRS” means the United States Internal Revenue Service.
“Issuance Notice” means an Issuance Notice substantially in the form of Exhibit A‑3.
“Issuing Bank” means DBNY as Issuing Bank hereunder and other Lenders with a Revolving Commitment that agree in writing with the Borrower and Administrative Agent to issue
24
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
Letters of Credit hereunder, in each case, together with their respective permitted successors and assigns in such capacity.
“Joinder Agreement” means an agreement in the form of Exhibit I.
“Junior Subordinated Notes” means, collectively, (i) the junior subordinated notes Trust I of the Parent Guarantor due March 2035 (currently bearing an interest rate of 8.15%), (ii) the junior subordinated notes Trust II of the Parent Guarantor due June 2035 (currently bearing an interest rate of 7.74%), (iii) the junior subordinated notes Trust III of the Parent Guarantor due January 2036 (currently bearing an interest rate of 7.81%), (iv) the junior subordinated notes Trust IV of the Parent Guarantor due June 2036 (currently bearing an interest rate of 7.95%), (v) the junior subordinated notes Trust V of the Parent Guarantor due September 2036 (currently bearing an interest rate of Libor plus 2.70%), (vi) the junior subordinated notes Trust VI of the Parent Guarantor due December 2036 (currently bearing an interest rate of Libor plus 2.90%), (vii) the junior subordinated notes Trust VII of the Parent Guarantor due April 2037 (currently bearing an interest rate of Libor plus 2.50%), and (viii) the junior subordinated notes Trust VIII of the Parent Guarantor due July 2037 (currently bearing an interest rate of Libor plus 2.70%).
“Lead Arranger” as defined in the preamble hereto.
“Lender” means each financial institution party hereto as a Lender, and any other Person that becomes a party hereto pursuant to an Assignment Agreement.
“Letter of Credit” means a standby letter of credit issued or to be issued by Issuing Bank pursuant to this Agreement.
“Letter of Credit Sublimit” means the lesser of (a) $25,000,000 and (b) the aggregate unused amount of the Revolving Commitments then in effect.
“Letter of Credit Usage” means, as at any date of determination, the sum of (a) the maximum aggregate amount which is, or at any time thereafter may become, available for drawing under all Letters of Credit then outstanding, and (b) the aggregate amount of all drawings under Letters of Credit honored by Issuing Bank and not theretofore reimbursed by or on behalf of the Borrower.
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge or other security interest or any preference, priority or other security agreement in respect of the property of a Person, in each case, in the nature of security (including, without limitation, any conditional sale or other title retention agreement and any Capital Lease having substantially the same economic effect as any of the foregoing).
“Liquidity” means the sum of (i) the aggregate sum of all unrestricted and unencumbered (other than pursuant to the Collateral Documents) Cash and Cash Equivalents, determined in accordance with GAAP, held by the Parent Guarantor and its Consolidated Subsidiaries plus (ii) Undrawn Availability.
25
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
“Loan” means a Revolving Loan and a Swing Line Loan.
“Loan to Value” means the ratio (expressed as a percentage) of (a) the sum of the outstanding principal amount of the subject mezzanine loan and any other indebtedness for borrowed money senior to the subject mezzanine loan that is related to the applicable underlying property over (b) the Imputed Value of such underlying property.
“Margin Stock” as defined in Regulation U of the Board of Governors as in effect from time to time.
“Material Adverse Effect” means, a material adverse effect on (a) the business, operations, properties or condition (financial or otherwise) of the Parent Guarantor and its Subsidiaries, taken as a whole; (b) the rights and remedies of Administrative Agent, the Collateral Agent and the Lenders under any Credit Document; or (c) the legality, validity or enforceability of any Credit Document.
“Material Contract” means any contract or other arrangement to which the Parent Guarantor or any of its Subsidiaries is a party (other than the Credit Documents) for which breach, nonperformance, cancellation or failure to renew could reasonably be expected to have a Material Adverse Effect and, in any event, shall include the Organizational Documents of Lower Terra JV, LLC.
“Material Subsidiary” means, at any time, any Subsidiary of the Parent Guarantor that, on a consolidated basis with its Subsidiaries, has shareholders’ equity of greater than 5% of total shareholders’ equity of the Parent Guarantor and its Subsidiaries, provided that the aggregate shareholders’ equity of all Subsidiaries that are not Material Subsidiaries shall not in any event exceed 15% of total shareholders’ equity of the Parent Guarantor and its Subsidiaries.
“Maximum Increase Amount” as defined in Section 2.24(a).
“Minimum Capital Expenditures” means, for each Real Estate Asset, the applicable amount from the following chart:
Type of Real Estate Asset | Minimum Capital Expenditures |
Multi-family | $250 per unit |
Retail | $0.25 per leasable square foot |
Office | $0.25 per leasable square foot |
Lodging | 4% of gross revenues |
Industrial | $0.15 per leasable square foot |
Healthcare | $0.30 per leasable square foot |
“Minimum Collateral Amount” means, at any time, (i) with respect to Cash Collateral consisting of cash or deposit account balances provided to reduce or eliminate Fronting Exposure during the existence of a Defaulting Lender, an amount equal to 100% of the Fronting
26
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
Exposure of Issuing Bank with respect to Letters of Credit issued and outstanding at such time, (ii) with respect to Cash Collateral consisting of cash or deposit account balances provided in accordance with the provisions of Section 2.25(a)(i), (a)(ii) or (a)(iii), an amount equal to 100% of the Outstanding Amount of all L/C Obligations, and (iii) otherwise, an amount determined by the Administrative Agent and Issuing Bank in their sole discretion.
“Minimum Management Fee Percentage” means, for each Real Estate Asset, the applicable percentage from the following chart:
Type of Real Estate Asset | Minimum Management Fee |
Multi-family | 4% of gross revenues |
Retail | 3% of gross revenues |
Office | 3% of gross revenues |
Lodging | 3% of gross revenues |
Industrial | 3% of gross revenues |
Healthcare | 4% of gross revenues |
“Xxxxx’x” means Xxxxx’x Investors Services, Inc.
“Multiemployer Plan” means any Employee Benefit Plan which is a “multiemployer plan” as defined in Section 3(37) of ERISA.
“NAIC” means The National Association of Insurance Commissioners, and any successor thereto.
“Narrative Report” means, with respect to the financial statements for which such narrative report is required, a customary narrative report describing the operations of the Parent Guarantor and its Subsidiaries in the form prepared for presentation to senior management thereof for the applicable Fiscal Quarter or Fiscal Year and for the period from the beginning of the then current Fiscal Year to the end of such period to which such financial statements relate. For the avoidance of doubt, any such narrative report and/or management discussion and analysis that is in compliance with the requirements of Form 10-Q (in the case of each applicable Fiscal Quarter) and Form 10-K (in the case of each Fiscal Year) under the Exchange Act shall satisfy this definition.
“New Revolving Loan Commitments” as defined in Section 2.24(a).
“New Revolving Loan Lender” as defined in Section 2.24(a).
“New Revolving Loan” as defined in Section 2.24(d).
“Non-Consenting Lender” as defined in Section 2.23.
“Non-Consolidated Entity” means, with respect to any Person, any other Person in which such Person owns, directly or indirectly, Equity Interests but is not a Consolidated Subsidiary of such Person. Unless otherwise expressly provided, all references in the Credit
27
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
Documents to a “Non-Consolidated Entity” means a Non-Consolidated Entity of the Parent Guarantor.
“Non-Consolidated Real Estate Entity” means a Non-Consolidated Entity that owns, directly or indirectly, as its principal Investment, real property, but shall exclude any such Non-Consolidated Entity that holds, as a material portion of its business, Investments in operating businesses, private equity funds, profit interests and other similar Investments (as determined by the Parent Guarantor acting in good faith and on a basis consistent with past practice).
“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
“Non-Public Information” means material information which has not been disseminated in a manner making it available to investors generally, within the meaning of Regulation FD.
“Non-Recourse Indebtedness” means Indebtedness which is not Recourse Indebtedness and in any event shall include Indebtedness incurred as part of an acquisition of a portfolio of assets whereby one pool of assets within such portfolio is financed separately from another pool of assets within such portfolio and such Indebtedness is recourse to both pools of assets within such porfolio, so long as such Indebtedness remains solely with recourse to the assets within such portfolio and to no other assets.
“Non-Recourse Indebtedness Foreclosure” as defined in the definition of Turn-Over Subsidiary.
“Note” means a Revolving Loan Note or a Swing Line Note.
“Notice” means a Funding Notice, an Issuance Notice, or a Conversion/ Continuation Notice.
“Obligations” means all obligations of every nature of each Credit Party owing from time to time to Agents (including former Agents), Lead Arranger, Lenders or any of them under any Credit Document, whether for principal, interest (including interest which, but for the filing of a petition in bankruptcy with respect to such Credit Party, would have accrued on any Obligation, whether or not a claim is allowed against such Credit Party for such interest in the related bankruptcy proceeding), reimbursement of amounts drawn under Letters of Credit, fees, expenses, indemnification or otherwise required under any Credit Document.
“Obligee Guarantor” as defined in Section 7.7.
“OFAC” means the Office of Foreign Assets Control of the U.S. Treasury Department.
“Organizational Documents” means (a) with respect to any corporation or company, its certificate, memorandum or articles of incorporation, organization or association, as amended, and its by‑laws, as amended, (b) with respect to any limited partnership, its certificate
28
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
or declaration of limited partnership, as amended, and its partnership agreement, as amended, (c) with respect to any general partnership, its partnership agreement, as amended, (d) with respect to any limited liability company, its articles of organization, as amended, and its operating agreement, as amended, and (e) for any trust, the trust agreement and any other instrument or agreement relating to the rights between the trustors, trustees and beneficiaries or pursuant to which such trust is formed. In the event any term or condition of this Agreement or any other Credit Document requires any Organizational Document to be certified by a secretary of state or similar Governmental Authority, the reference to any such “Organizational Document” shall only be to a document of a type customarily certified by such Governmental Authority.
“Original Closing Date” means August 5, 2014.
“Original Closing Date Consolidated Tangible Net Worth” means $3,073,017,000.
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Credit Document, or sold or assigned an interest in any Loan or Credit Document).
“Other Taxes” means any and all present or future stamp or documentary, intangible, recording, filing or similar Taxes arising from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement or any other Credit Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.23).
“Paid in Full” means the termination of all the Commitments, payment in full, in cash, of all of the Obligations (other than any unasserted contingent reimbursement or indemnity obligations) (or with respect to Letters of Credit, the Cash Collateralization thereof).
“Parent Guarantor” as defined in the preamble hereto.
“Participant Register” as defined in Section 10.6(g)(i).
“PATRIOT Act” as defined in Section 3.1(l).
“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.
“Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code or Section 302 of ERISA.
“Permitted Liens” means each of the Liens permitted pursuant to Section 6.2.
29
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
“Permitted Project Level Financing” means any Indebtedness secured by a mortgage (or negative pledge (which, for purposes of this Agreement and the other Credit Documents, shall constitute a Lien) or similar security instrument in lieu of any of the foregoing) on any Real Estate Asset (or, for convenience, to avoid expense or for other bona fide business purposes of the Parent Guarantor, secured by rentals or cash flow of one or more Real Estate Assets but not by a mortgage) or secured by a Lien on any Equity Interests of any Person whose primary asset is (a) the Real Estate Asset financed by such Indebtedness or (b) the Equity Interests of an entity that directly or indirectly owns such Real Estate Asset; provided, that Permitted Project Level Financing shall not be secured by any Collateral.
“Permitted Refinancing” means, with respect to any Person, any modification, amendment, restatement, amendment and restatement, refinancing, refunding, renewal or extension of any Indebtedness of such Person (the “Original Indebtedness”); provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Original Indebtedness except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such modification, amendment, restatement, amendment and restatement, refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder (to the extent such commitments could be drawn at the time of such refinancing in compliance with this Agreement) or as otherwise permitted pursuant to Section 6.1, (b) if the Original Indebtedness is subordinated in right of payment to the Obligations, such modification, amendment, restatement, amendment and restatement, refinancing, refunding, renewal or extension is subordinated in right of payment to the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Original Indebtedness, (c) such modification, amendment, restatement, amendment and restatement, refinancing, refunding, renewal or extension shall not be secured (i) by any Lien on any asset other than the assets that secured the Original Indebtedness (or would have been required to secure such Original Indebtedness pursuant to the terms thereof); provided, that this clause (c) shall not prohibit such modification, amendment, restatement, amendment and restatement, refinancing, refunding, renewal or extension to be secured by a Lien on assets other than those that secured the Original Indebtedness if such Indebtedness may be secured pursuant to a Permitted Lien or (ii), in the event Liens securing such Original Indebtedness shall have been contractually subordinated to any Lien securing the Obligations, by any Lien that shall not have been contractually subordinated to at least the same extent and (d) at the time thereof, no Event of Default shall have occurred and be continuing.
“Person” means an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature.
“Platform” as defined in Section 5.1(j).
“Pledge Agreement” means the Amended and Restated Pledge Agreement to be executed by the Pledgors substantially in the form of Exhibit G, as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
30
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
“Pledged Entities” means, collectively, the Amendment and Restatement Date Pledged Entities and the additional Equity Interests subject to the Lien of the Collateral Documents in favor of Collateral Agent, for the benefit of Secured Parties, after the Amendment and Restatement Date pursuant to the requirements of Sections 5.8 and 5.9.
“Pledgor” as defined in the Pledge Agreement.
“Prime Rate” means the rate of interest quoted in the print edition of The Wall Street Journal, Money Rates Section as the Prime Rate (currently defined as the base rate on corporate loans posted by at least 75% of the nation’s thirty (30) largest banks), as in effect from time to time. The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer. Administrative Agent or any other Lender may make commercial loans or other loans at rates of interest at, above or below the Prime Rate.
“Principal Office” means, for each of Administrative Agent, Swing Line Lender and Issuing Bank, such Person’s “Principal Office” as set forth on Appendix B, or such other office or office of a third party or sub-agent, as appropriate, as such Person may from time to time designate in writing to the Borrower, Administrative Agent and each Lender.
“Projections” as defined in Section 4.8.
“Pro Rata Share” with respect to any Lender means the percentage obtained by dividing (a) the Revolving Exposure of that Lender, by (b) the aggregate Revolving Exposure of all Lenders.
“Public Lenders” means Lenders that do not wish to receive Non-Public Information with respect to the Borrower, its Subsidiaries or their securities.
“Qualified Equity Interests” means Equity Interests that are not Disqualified Equity Interests.
“Qualified Permitted Liens” as defined in the Pledge Agreement.
“Qualifying Ground Lease” means a ground lease that (i) has a remaining term of at least thirty (30) years including, for this purpose, any renewal option exercisable at the sole option of the ground lessee thereunder, with no veto or approval rights by the ground lessor or any lender to such ground lessor; (ii) can be mortgaged without the consent of the ground lessor thereunder; (iii) contains customary leasehold mortgagee protection rights reasonably satisfactory to the Administrative Agent; (iv) can be transferred without the consent of the ground lessor thereunder (or if consent of such ground lessor is required, such consent is subject to either an express reasonableness standard or an objective financial standard for the transferee that is reasonably satisfactory to the Administrative Agent); and (v) provides that the tenant under the ground lease is entitled to all insurance proceeds and condemnation awards (other than the amount attributable to landlord’s fee interest in the land if an adjustment in rent is provided for in connection therewith).
31
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
“Real Estate Asset” means, at any time of determination, any interest (fee, leasehold or otherwise) then directly owned by any Credit Party or any Subsidiary of a Credit Party in any real property.
“Real Estate Asset Eligibility Criteria” means, each of the following:
(a) the Borrower shall have provided the Administrative Agent on behalf of the Lenders with a written request for such Real Estate Asset to be admitted into the Borrowing Base, which request shall be provided by the Administrative Agent to the Lenders and shall be accompanied by (w) reasonably detailed property diligence materials (including, without limitation, historical operating statements and third party reports (including, without limitation, a title report and a FIRREA-compliant appraisal delivered by an appraiser selected by the Administrative Agent (a “Real Estate Asset Qualified Appraisal”)) with respect to such Real Estate Asset, (x) with respect to any Real Estate Asset that has been owned by the Borrower or its Subsidiaries for less than two full fiscal quarters for which financial statements are available, a calculation in reasonable detail of the acquisition cost of such Real Estate Asset, (y) a description of such Real Estate Asset (including, without limitation, whether such Real Estate Asset is a retail property, a hotel, an office property, an industrial property, a lodging property, multi-family housing and/or a healthcare property) and (z) such additional documents and information as reasonably requested by the Administrative Agent (or by any Lender through the Administrative Agent);
(b) the Administrative Agent, in its sole discretion, shall have approved the inclusion of such Real Estate Asset in the Borrowing Base;
(c) the Real Estate Asset shall either be (i) wholly-owned in fee simple or (ii) wholly ground leased pursuant to a Qualifying Ground Lease, in each case by a Wholly-Owned Subsidiary of the Borrower that is organized under the laws of the United States or any State thereof, and all of the Equity Interests of such Subsidiary (together with all of the Equity Interests of any direct or indirect Subsidiary of the Borrower that owns Equity Interests of such Subsidiary) are pledged as Collateral in favor of the Collateral Agent, for the benefit of the Secured Parties, pursuant to the Pledge Agreement, which Subsidiary has no material assets other than such Real Estate Asset; provided that not less than 85% of Real Estate Assets included in the Borrowing Base (determined by Borrowing Base Value) must be wholly-owned in fee simple;
(d) such Real Estate Asset shall be (i) a Borrowing Base Eligible Real Estate Asset located in one of the top 00 xxxxxxxxxxxx xxxxxxxxxxx xxxxx xx xxx Xxxxxx Xxxxxx of America or such other location as Administrative Agent shall approve in its sole discretion, (ii) free of material physical defects and (iii) not subject to any outstanding written order, consent decree or settlement agreement with any Person relating to any Environmental Law, any Environmental Claim, or any Hazardous Materials Activity that could reasonably be expected to, individually or in the aggregate, result in a material liability;
(e) (i) the Subsidiary of the Borrower that owns such Real Estate Asset (a “Real Estate Asset Holding Subsidiary”) shall be a Guarantor, (ii) each Subsidiary of the Borrower that directly owns any Equity Interests in the applicable Real Estate Asset Holding Subsidiary
32
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
shall be a Guarantor and (iii) each Subsidiary of the Borrower (other than any such Subsidiary that is an Excluded Subsidiary but solely to the extent that (i) all of the Equity Interests in such Excluded Subsidiary are held by the Borrower or a Guarantor and (ii) the Equity Interests held by such Excluded Subsidiary in any Subsidiary that directly or indirectly owns any Equity Interests in a Real Estate Asset Holding Subsidiary are, in each case, free and clear of all Liens) that indirectly owns any Equity Interests in the applicable Real Estate Asset Holding Subsidiary shall be a Guarantor;
(f) such Real Estate Asset shall be free and clear of all negative pledges or any restrictions on the ability of the Subsidiary of the Borrower that owns such Real Estate Asset to transfer or encumber such Real Estate Asset, except for (1) customary restrictions on Liens, assignments and transfers of assets contained in leases, licenses and other Contractual Obligations entered into in the ordinary course of business that (x) do not prevent the grant of a Lien on such Real Estate Asset to secure the Obligations, (y) would not prevent a mortgagee of such Real Estate Asset from transferring such Real Estate Asset in the event such mortgagee were to foreclose on its Lien on such Real Estate Asset and (z) do not materially impair or interfere in the use or operations of such Real Estate Asset or any Agent’s or the Secured Parties’ rights and remedies under the Loan Documents;
(g) the Subsidiary of the Borrower that owns such Real Estate Asset shall not have any Indebtedness (other than the Obligations) and shall not be subject to any proceedings under the Bankruptcy Code, or any 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;
(h) there shall not exist any Lien or other encumbrance or title defect on (i) such Real Estate Asset, other than Liens permitted under Section 6.2(a), (b), (g), (j), (s) and (q) (in the case of clause (q), securing amounts not in excess of $1,000,000 for any single Real Estate Asset or such greater amount as may be agreed to by the Administrative Agent in its sole discretion), (ii) any other assets or property of the Subsidiary of the Borrower that owns such Real Estate Asset (including, without limitation, any income derived from such Real Estate Asset), other than Liens permitted under Section 6.2 or (iii) any of the Equity Interests of the Subsidiary of the Borrower that owns such Real Estate Asset (or any direct or indirect Subsidiary of the Borrower that owns Equity Interests of such Subsidiary), including any right to receive distributions or other amounts in respect of such Equity Interests, other than Liens permitted under Section 6.2(a) or (b); and
(i) the Borrower shall have complied with Section 5.9 with respect to such Real Estate Asset.
“Real Estate Asset Holding Subsidiary” as defined in the definition of “Real Estate Asset Eligibility Criteria.”
“Real Estate Asset Net Operating Income” means, with respect to any Real Estate Asset for any period, an amount equal to (i) the aggregate gross revenues from the operation of
33
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
such Real Estate Asset from tenants in occupancy and paying rent during such period (or, in the case of a Real Estate Asset that is a hotel property, from the operation of such Real Estate Asset during such period), minus (ii) all expenses and other proper charges incurred by Parent Guarantor and its Subsidiaries during such period in connection with the operation of such Real Estate Asset (including accruals for real estate taxes and insurance, but excluding any management fees, capital expenditures, income taxes, depreciation, amortization and other non-cash expenses), which expenses and accruals shall be calculated in accordance with GAAP minus (iii) management fees and franchise fees equal to the greater of (x) the actual management fees paid, and (y) the Minimum Management Fee Percentage for such Real Estate Asset of such aggregate gross revenues from the operations of such Real Estate Asset during such period, minus (iv) capital expenditures equal to the greater of (x) the actual capital expenditures for such Real Estate Asset and (y) the Minimum Capital Expenditures for such Real Estate Asset; provided, that clauses (iii) and/or (iv), as applicable, shall not apply to any Real Estate Asset that is 100% leased pursuant to one or more “triple-net” leases where the tenants are responsible for such items or for any Real Estate Asset for which the Administrative Agent has determined, in its sole discretion, that such fees and/or expenses, as applicable, are paid by the tenant under the applicable lease.
“Real Estate Asset Qualified Appraisal” as defined in the definition of “Real Estate Asset Eligibility Criteria.
“Recipient” means (a) Administrative Agent, (b) any Lender and (c) any Issuing Bank, as applicable.
“Recourse Indebtedness” means any Indebtedness, to the extent that recourse of the applicable lender for non-payment is not limited to (i) such lender’s Liens on a particular asset or group of assets or (ii) a single Person or group of Persons that own only the particular asset or group of assets; provided that customary “bad acts” guarantees, environmental guarantees and similar agreements shall not constitute recourse.
“Refunded Swing Line Loans” as defined in Section 2.3(b)(iv).
“Register” as defined in Section 2.7(b).
“Regulation D” means Regulation D of the Board of Governors, as in effect from time to time.
“Regulation FD” means Regulation FD as promulgated by the U.S. Securities and Exchange Commission under the Securities Act and Exchange Act as in effect from time to time.
“Reimbursement Date” as defined in Section 2.4(d).
“REIT” means a domestic trust or corporation that qualifies as a real estate investment trust under the provisions of Sections 856, et seq. of the Internal Revenue Code.
34
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
“Related Fund” means, with respect to any Lender that is an investment fund, any other investment fund that invests in commercial loans and that is managed or advised by the same investment advisor as such Lender or by an Affiliate of such investment advisor.
“Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material into the environment, including the movement of any Hazardous Material through the air, soil, surface water or groundwater.
“Replacement Lender” as defined in Section 2.23.
“Requisite Lenders” means one or more Lenders having or holding Revolving Exposure and representing more than 50% of the aggregate Revolving Exposure of all Lenders; provided that the Revolving Exposure held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Requisite Lenders.
“Restricted Junior Payment” means any dividend or other distribution, direct or indirect, on account of any shares of any class of Equity Interests of any Person now or hereafter outstanding, except a dividend payable solely in shares of Qualified Equity Interests of such Person or of any direct or indirect parent of such Person or in rights to subscribe for the purchase of such Qualified Equity Interests.
“Revolving Commitment” means the commitment of a Lender to make or otherwise fund any Revolving Loan and to acquire participations in Letters of Credit and Swing Line Loans hereunder and “Revolving Commitments” means such commitments of all Lenders in the aggregate. The amount of each Lender’s Revolving Commitment, if any, is set forth on Appendix A or in the applicable Assignment Agreement, subject to any adjustment or reduction pursuant to the terms and conditions hereof. The aggregate amount of the Revolving Commitments as of the Amendment and Restatement Date is $500,000,000.
“Revolving Commitment Period” means the period from the Original Closing Date to but excluding the Revolving Commitment Termination Date.
“Revolving Commitment Termination Date” means the earliest to occur of (a) the third anniversary of the Original Closing Date, (b) the date the Revolving Commitments are permanently reduced to zero pursuant to Section 2.13(b), and (c) the date of the termination of the Revolving Commitments pursuant to Section 8.1.
“Revolving Exposure” means, with respect to any Lender as of any date of determination, (a) prior to the termination of the Revolving Commitments, that Lender’s Revolving Commitment; and (b) after the termination of the Revolving Commitments, the sum of (i) the aggregate outstanding principal amount of the Revolving Loans of that Lender, (ii) in the case of Issuing Bank, the aggregate Letter of Credit Usage in respect of all Letters of Credit issued by that Lender (net of any participations by Lenders in such Letters of Credit), (iii) the aggregate amount of all participations by that Lender in any outstanding Letters of Credit or any unreimbursed drawing under any Letter of Credit, (iv) in the case of Swing Line Lender, the aggregate outstanding principal
35
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
amount of all Swing Line Loans (net of any participations therein by other Lenders), and (v) the aggregate amount of all participations therein by that Lender in any outstanding Swing Line Loans.
“Revolving Loan” means a Loan made by a Lender to the Borrower pursuant to Section 2.2(a).
“Revolving Loan Note” means a promissory note in the form of Exhibit B‑1, as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“S&P” means Standard & Poor’s, a Division of The XxXxxx-Xxxx Companies, Inc.
“Sanction(s)” means any sanction administered or enforced by the United States Government (including without limitation, OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury or other relevant sanctions authority.
“Secured Parties” has the meaning assigned to that term in the Pledge Agreement.
“Securities Act” means the Securities Act of 1933, as amended from time to time, and any successor statute.
“Solvency Certificate” means a Solvency Certificate of the chief financial officer of the Borrower substantially in the form of Exhibit E‑2.
“Solvent” means, with respect to any Person on any date of determination, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature, (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital, and (e) such Person is able to pay its debts and liabilities, contingent obligations and other commitments as they mature in the ordinary course of business. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
“Subject Transaction” as defined in Section 6.7(g).
“Subordinated Indebtedness” means any Indebtedness expressly subordinated in right of payment to the Obligations or that is secured on a junior lien basis to the Liens securing the Obligations.
“Subsidiary” means, as to any Person, a corporation, partnership, limited liability company, trust, estate or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only
36
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership, limited liability company or other entity are at the time owned, directly or indirectly through one or more intermediaries, or both, by such Person.
“Swing Line Lender” means DBNY in its capacity as Swing Line Lender hereunder, together with its permitted successors and assigns in such capacity.
“Swing Line Loan” means a Loan made by Swing Line Lender to the Borrower pursuant to Section 2.3.
“Swing Line Note” means a promissory note in the form of Exhibit B‑2, as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“Swing Line Sublimit” means the lesser of (i) $10,000,000, and (ii) the aggregate unused amount of Revolving Commitments then in effect.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Terminated Lender” as defined in Section 2.23.
“Total Asset Value” means, as at any date of determination, solely with respect to the Parent Guarantor and its Consolidated Subsidiaries, the sum of (without duplication):
(i)Cash and Cash Equivalents excluding restricted Cash other than restricted Cash that is being held for future capital expenditures or restricted Cash Collateral posted in respect of Indebtedness; plus
(ii)operating real estate, including operating real estate that may be held for sale, valued at the lower of (a) the cost basis, and (b) the undepreciated carrying value, each in accordance with GAAP and including intangible amounts associated with purchase price accounting for owned assets; plus
(iii)real estate debt investments, valued at carrying value in accordance with GAAP; plus
(iv)Investments in private equity funds, valued at carrying value in accordance with GAAP; plus
(v)real estate securities, valued at carrying value in accordance with GAAP; plus
(vi)Investments in Non-Consolidated Entities (other than Investments in Non-Consolidated Real Estate Entities), valued at carrying value in accordance with GAAP; plus
37
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
(vii)other assets, to the extent such assets represent deposits or investments in real property, real estate debt investments or real estate securities investments, valued at carrying value in accordance with GAAP; plus
(viii)with respect to the real property assets held, directly or indirectly, by a Non-Consolidated Real Estate Entity, each such real property asset valued based on (x) Parent Guarantor’s ownership share, multiplied by (y) the lesser of (a) the cost basis, and (b) the undepreciated carrying value of each such real property asset, each in accordance with GAAP;
provided that “Total Asset Value” shall exclude the assets of any CDO that has been consolidated on the Parent Guarantor’s and its Consolidated Subsidiaries’ consolidated financial statements in accordance with GAAP.
“Total Indebtedness to Total Assets Ratio” means the ratio as of the last day of any Fiscal Quarter of (a) Combined Total Debt to (b) Total Asset Value.
“Total Recourse Indebtedness to Total Assets Ratio” means, as at any date of determination, the ratio as of (a) Combined Total Recourse Debt to (b) Total Asset Value.
“Total Utilization of Revolving Commitments” means, as at any date of determination, the sum of (a) the aggregate principal amount of all outstanding Revolving Loans (other than Revolving Loans made for the purpose of repaying any Refunded Swing Line Loans or reimbursing Issuing Bank for any amount drawn under any Letter of Credit, but not yet so applied), (b) the aggregate principal amount of all outstanding Swing Line Loans, and (c) the Letter of Credit Usage.
“Turn-Over Subsidiary” means any Subsidiary of the Parent Guarantor with respect to which: (i) such Subsidiary is a borrower of Non-Recourse Indebtedness that has either matured or that is the subject of an event of default or equivalent condition beyond the applicable grace period, if any, provided therefor and such event of default or equivalent condition has caused the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders), to accelerate such Indebtedness; (ii) the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) has initiated foreclosure proceedings against the collateral securing such Indebtedness (a “Non-Recourse Indebtedness Foreclosure”); (iii) Borrower has advised Administrative Agent in writing that either the applicable Subsidiary does not intend to contest such Non-Recourse Indebtedness Foreclosure or the applicable Subsidiary intends to convey the collateral subject to such Non-Recourse Indebtedness Foreclosure to the lenders of such Indebtedness; and (iv) after giving effect to such Non-Recourse Indebtedness Foreclosure, and the transfer of any and all collateral subject to such Non-Recourse Indebtedness Foreclosure, the Subsidiary would no longer own or control assets (and therefore there would no longer be residual shareholder’s equity in such Subsidiary) sufficient to make it a Material Subsidiary. Notwithstanding the foregoing, in no event shall the Borrower be deemed to be a Turn-Over Subsidiary.
“Type of Loan” means (a) with respect to Revolving Loans, a Base Rate Loan or a Eurodollar Rate Loan, and (b) with respect to Swing Line Loans, a Base Rate Loan.
38
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
“UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in effect from time to time in any applicable jurisdiction.
“Undrawn Availability” means (a) the Borrowing Base Value, minus (b) Total Utilization of Revolving Commitments.
“Unencumbered Loans” means each subordinated loan, mezzanine loan and mortgage loan (including preferred equity that has a stated maturity that is not greater than five years and is classified as debt under GAAP) owned or otherwise held either (a) directly by BSL Holdings-T, LLC or (b) directly by any Unencumbered Loans SPV, in each case in accordance with this Agreement so long as (i) the lender under such subordinated loan, mezzanine loan or mortgage loan, as the case may be, is not restricted under any Contractual Obligation from transferring its rights, obligations and other interests thereunder, (ii) BSL Holdings-T, LLC or the applicable Unencumbered Loans SPV, as the case may be, is in possession of (x) the original promissory note evidencing such subordinated loan, mezzanine loan or mortgage loan, as the case may be, and (y) all other material loan documents governing such subordinated loan, mezzanine loan or mortgage loan, as the case may be, (iii) BSL Holdings-T, LLC or the applicable Unencumbered Loan SPV, as the case may be, has incurred no Indebtedness other than Contingent Obligations in respect of the Obligations hereunder, (iv) BSL Holdings-T, LLC or the applicable Unencumbered Loan SPV, as the case may be, has not granted or suffered to exist any Liens on any of its assets other than Liens in favor of the Collateral Agent; (v) the lender under such subordinated loan, mezzanine loan or mortgage loan, as the case may be, shall have received an appraisal of the underlying property with respect to such loan; and (vi) with respect to any mezzanine loans that have a Loan to Value of over 85%, such mezzanine loans shall not constitute more than 30% of the aggregate net carrying value of all Unencumbered Loans.
“Unencumbered Loans SPV” means any wholly-owned direct Subsidiary of BSL Holdings-T, LLC that holds subordinated loans, mezzanine loans or mortgage loans (including preferred equity that has a stated maturity that is not greater than five years and is classified as debt under GAAP) to be included in the Borrowing Base, and which (a) is a Guarantor hereunder, (b) has had all of its Equity Interests pledged to the Collateral Agent, for the benefit of the Secured Parties, to secure the Obligations, and (c) has no other assets other than those described above.
“U.S. Person” means any Person that is a “United States person” as defined in Section 7701(a)(30) of the Internal Revenue Code.
“U.S. Tax Compliance Certificate” as defined in Section 2.20(f).
“Utilization of Revolving Commitments” means, as at any date of determination, with respect to any Lender, the sum of (i) the aggregate outstanding principal amount of the Revolving Loans of that Lender (other than Revolving Loans made for the purpose of repaying any Refunded Swing Line Loans or reimbursing Issuing Bank for any amount drawn under any Letter of Credit, but not yet so applied), (ii) the aggregate amount of all participations by that Lender in any outstanding Letters of Credit or any unreimbursed drawing under any Letter of Credit and (iii) the aggregate amount of all participations by that Lender in any outstanding Swing Line Loans.
39
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
“Wholly Owned Subsidiary” means, as to any Person or Persons, any Subsidiary of any of such Person or Persons all of the Equity Interests of which (other than directors’ qualifying shares) is owned by such Person or Persons directly or indirectly.
“Withholding Agent” means any Credit Party and Administrative Agent.
1.2. Accounting Terms. Except as otherwise expressly provided herein, all accounting terms not otherwise defined herein shall have the meanings assigned to them in conformity with GAAP. Financial statements required to be delivered by the Borrower to Administrative Agent pursuant to Section 5.1(a) and 5.1(b) shall be prepared in accordance with GAAP as in effect at the time of such preparation. Subject to the foregoing, calculations in connection with the definitions, covenants and other provisions hereof shall (i) utilize accounting principles and policies in conformity with GAAP and (ii) shall not give effect to any election made by the Parent Guarantor or any of its Subsidiaries under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value Indebtedness or other liabilities of any Credit Party or any Subsidiary of any Credit Party or any Non-Consolidated Real Estate Entity at “fair value.” If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Credit Document, and the Borrower shall so request, Administrative Agent and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of Requisite Lenders), provided that, until so amended, such ratio or requirement shall continue to be computed in conformity with those accounting principles and policies in effect before giving effect to such change in GAAP.
1.3. Interpretation, Etc. Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural, depending on the reference. References herein to any Section, Appendix, Schedule or Exhibit shall be to a Section, an Appendix, a Schedule or an Exhibit, as the case may be, hereof unless otherwise specifically provided. The use herein of the word “include” or “including”, when following any general statement, term or matter, shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not non-limiting language (such as “without limitation” or “but not limited to” or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that fall within the broadest possible scope of such general statement, term or matter. The terms lease and license shall include sub-lease and sub-license, as applicable. The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Credit Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “hereto,” “herein,” “hereof” and “hereunder,” and words of similar import when used in any Credit Document, shall be construed to refer to such Credit Document in its entirety and not to any particular provision thereof, (iv) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or
40
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (v) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights. Whenever any payment to be made hereunder shall be stated to be due on a day that is not a Business Day, such payment shall be made as set forth in Section 2.16(e) and (f), the provisos set forth in the definition of “Interest Period”, or, to the extent provided in any amendment, waiver, or modification of a Credit Document, as provided therein, as applicable. Whenever performance of any other obligation or agreement is required on a day that is not a Business Day, the date for such performance shall be extended to the next succeeding Business Day.
SECTION 2. LOANS AND LETTERS OF CREDIT
2.1. Intentionally Omitted.
2.2. Revolving Loans.
(a) Revolving Commitments. During the Revolving Commitment Period, subject to the terms and conditions hereof, each Lender severally agrees to make Revolving Loans denominated in Dollars to the Borrower in an aggregate amount up to but not exceeding such Lender’s Revolving Commitment; provided, that after giving effect to the making of any Revolving Loans in no event shall (i) the Total Utilization of Revolving Commitments exceed the Revolving Commitments then in effect or (ii) the ratio of the Borrowing Base Value to the Total Utilization of Revolving Commitments be less than 1.50:1.00. Amounts borrowed pursuant to this Section 2.2(a) may be repaid and reborrowed during the Revolving Commitment Period. Each Lender’s Revolving Commitment shall expire on the Revolving Commitment Termination Date and all Revolving Loans and all other amounts owed hereunder with respect to the Revolving Loans and the Revolving Commitments shall be paid in full no later than such date.
(b) Borrowing Mechanics for Revolving Loans.
(i) Revolving Loans that are Base Rate Loans (other than Revolving Loans made pursuant to Section 2.4(d)), shall be made in an aggregate minimum amount of $500,000 and integral multiples of $250,000 in excess of that amount, and Revolving Loans that are Eurodollar Rate Loans shall be in an aggregate minimum amount of $1,000,000 and integral multiples of $500,000 in excess of that amount.
(ii) Subject to Section 3.2(b), whenever the Borrower desires that Lenders make Revolving Loans, the Borrower shall deliver to Administrative Agent a fully executed and delivered Funding Notice no later than 11:00 a.m. (New York City time) at least three Business Days in advance of the proposed Credit Date in the case of a Eurodollar Rate Loan, and at least one Business Day in advance of the proposed Credit Date in the case of a Revolving Loan that is a Base Rate Loan. Except as otherwise provided herein, a Funding Notice for a Revolving Loan that is a Eurodollar Rate Loan shall be irrevocable
41
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
on and after the related Interest Rate Determination Date, and the Borrower shall be bound to make a borrowing in accordance therewith.
(iii) Notice of receipt of each Funding Notice in respect of Revolving Loans, together with the amount of each Lender’s Pro Rata Share thereof, if any, together with the applicable interest rate, shall be provided by Administrative Agent to each applicable Lender by facsimile or electronic mail with reasonable promptness, but (provided Administrative Agent shall have received such notice by 11:00 a.m. (New York City time)) not later than 3:00 p.m. (New York City time) on the same day as Administrative Agent’s receipt of such Notice from the Borrower.
(iv) Each Lender shall make the amount of its Revolving Loan available to Administrative Agent not later than 12:00 p.m. (New York City time) on the applicable Credit Date by wire transfer of same day funds in Dollars, at the Principal Office of Administrative Agent. Except as provided herein, upon satisfaction or waiver of the conditions precedent specified herein, Administrative Agent shall make the proceeds of such Revolving Loans available to the Borrower on the applicable Credit Date by causing an amount of same day funds in Dollars equal to the proceeds of all such Revolving Loans received by Administrative Agent from Lenders to be credited to the account of the Borrower at the Principal Office of Administrative Agent or such other account as may be designated in writing to Administrative Agent by the Borrower.
2.3. Swing Line Loans.
(a) Swing Line Loans Commitments. During the Revolving Commitment Period, subject to the terms and conditions hereof, Swing Line Lender may, in its sole discretion, make Swing Line Loans denominated in Dollars to the Borrower in the aggregate amount up to but not exceeding the Swing Line Sublimit; provided, that after giving effect to the making of any Swing Line Loan, in no event shall (i) the Total Utilization of Revolving Commitments exceed the Revolving Commitments then in effect or (ii) the ratio of the Borrowing Base Value to the Total Utilization of Revolving Commitments be less than 1.50:1.00. Amounts borrowed pursuant to this Section 2.3 may be repaid and reborrowed during the Revolving Commitment Period. Swing Line Lender’s Revolving Commitment shall expire on the Revolving Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans and the Revolving Commitments shall be paid in full no later than the earlier of (i) five (5) Business Days after the date such Swing Line Loan was drawn and (ii) the Revolving Commitment Termination Date.
(b) Borrowing Mechanics for Swing Line Loans.
(i) Swing Line Loans shall be made in an aggregate minimum amount of $250,000 and integral multiples of $50,000 in excess of that amount.
(ii) Subject to Section 3.2(b), whenever the Borrower desires that Swing Line Lender make a Swing Line Loan, the Borrower shall deliver to Administrative Agent a Funding Notice no later than 1:00 p.m. (New York City time) on the proposed Credit Date.
42
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
(iii) Swing Line Lender shall make the amount of its Swing Line Loan available to Administrative Agent not later than 3:00 p.m. (New York City time) on the applicable Credit Date by wire transfer of same day funds in Dollars, at Administrative Agent’s Principal Office. Except as provided herein, upon satisfaction or waiver of the conditions precedent specified herein, Administrative Agent shall make the proceeds of such Swing Line Loans available to the Borrower on the applicable Credit Date by causing an amount of same day funds in Dollars equal to the proceeds of all such Swing Line Loans received by Administrative Agent from Swing Line Lender to be credited to the account of the Borrower at Administrative Agent’s Principal Office, or to such other account as may be designated in writing to Administrative Agent by the Borrower.
(iv) With respect to any Swing Line Loans which have not been voluntarily prepaid by the Borrower pursuant to Section 2.13 or mandatorily prepaid by the Borrower in accordance with the last sentence of Section 2.3(a), Swing Line Lender may at any time in its sole and absolute discretion, deliver to Administrative Agent (with a copy to the Borrower), no later than 11:00 a.m. (New York City time) at least one Business Day in advance of the proposed Credit Date, a notice (which shall be deemed to be a Funding Notice given by Borrower) requesting that each Lender holding a Revolving Commitment make Revolving Loans that are Base Rate Loans to the Borrower on such Credit Date in an aggregate amount equal to the amount of such Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given which Swing Line Lender requests Lenders to prepay. Anything contained in this Agreement to the contrary notwithstanding, (1) the proceeds of such Revolving Loans made by the Lenders other than Swing Line Lender shall be immediately delivered by Administrative Agent to Swing Line Lender (and not to the Borrower) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (2) on the day such Revolving Loans are made, Swing Line Lender’s Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender to the Borrower, and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due under the Swing Line Note, if any, of Swing Line Lender but shall instead constitute part of Swing Line Lender’s outstanding Revolving Loans to the Borrower and shall be due under the Revolving Loan Note, if any, issued by the Borrower to Swing Line Lender. If any portion of any such amount paid (or deemed to be paid) to Swing Line Lender should be recovered by or on behalf of the Borrower from Swing Line Lender in bankruptcy, by assignment for the benefit of creditors or otherwise, the loss of the amount so recovered shall be ratably shared among all Lenders in the manner contemplated by Section 2.17.
(v) If for any reason Revolving Loans are not made pursuant to Section 2.3(b)(iv) in an amount sufficient to repay any amounts owed to Swing Line Lender in respect of any outstanding Swing Line Loans on or before the third Business Day after written demand for the making thereof by Swing Line Lender, each Lender holding a Revolving Commitment shall be deemed to, and hereby agrees to, have purchased a participation in such outstanding Swing Line Loans in an amount equal to its Pro Rata Share of the applicable unpaid amount together with accrued interest thereon. Upon one Business
43
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
Day’s notice from Swing Line Lender, each Lender holding a Revolving Commitment shall deliver to Swing Line Lender an amount equal to its respective participation in the applicable unpaid amount in same day funds at the Principal Office of Swing Line Lender. In order to evidence such participation, each Lender holding a Revolving Commitment agrees to enter into a participation agreement at the request of Swing Line Lender in form and substance reasonably satisfactory to Swing Line Lender. In the event any Lender holding a Revolving Commitment fails to make available to Swing Line Lender the amount of such Lender’s participation as provided in this paragraph, Swing Line Lender shall be entitled to recover such amount on written demand from such Lender together with interest thereon for three Business Days at the rate customarily used by Swing Line Lender for the correction of errors among banks and thereafter at the Base Rate, as applicable.
(vi) Notwithstanding anything contained herein to the contrary, (1) each Lender’s obligation to make Revolving Loans for the purpose of repaying any Refunded Swing Line Loans pursuant to the second preceding paragraph and each Lender’s obligation to purchase a participation in any unpaid Swing Line Loans pursuant to the immediately preceding paragraph shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any set‑off, counterclaim, recoupment, defense or other right which such Lender may have against Swing Line Lender, any Credit Party or any other Person for any reason whatsoever; (B) the occurrence or continuation of a Default or Event of Default; (C) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of any Credit Party; (D) any breach of this Agreement or any other Credit Document by any party thereto; or (E) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing; provided that such obligations of each Lender are subject to the condition that Swing Line Lender had not received prior notice from the Borrower or Requisite Lenders that any of the conditions under Section 3.2 to the making of the applicable Refunded Swing Line Loans or other unpaid Swing Line Loans were not satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made; and (2) Swing Line Lender shall not be obligated to make any Swing Line Loans (A) if it has elected not to do so after the occurrence and during the continuation of a Default or Event of Default, (B) it does not in good faith believe that all conditions under Section 3.2 to the making of such Swing Line Loan have been satisfied or waived by Requisite Lenders or (C) at a time when any Lender is a Defaulting Lender unless (x) first, Administrative Agent is holding sufficient Cash Collateral for the obligations of such Defaulting Lender, (y) second, after taking into account the reallocation of such Defaulting Lender’s participation obligations pro rata, among the non-Defaulting Lenders, the Utilization of Revolving Commitments of such Lenders does not exceed their respective Revolving Commitments or (z) third, Swing Line Lender has entered into arrangements reasonably satisfactory to it and the Borrower to eliminate Swing Line Lender’s risk with respect to the Defaulting Lender’s participation obligations in respect of such Swing Line Loan, including by Cash collateralizing such Defaulting Lender’s Pro Rata Share of the outstanding Swing Line Loans.
(c) Resignation and Removal of Swing Line Lender. Swing Line Lender may resign as Swing Line Lender upon 30 days prior written notice to Administrative Agent, Lenders
44
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
and the Borrower. Swing Line Lender may be replaced at any time by written agreement among the Borrower, Administrative Agent, the replaced Swing Line Lender (provided that no consent of the replaced Swing Line Lender will be required if the replaced Swing Line Lender has no Swing Line Loans outstanding) and the successor Swing Line Lender. Administrative Agent shall notify Lenders of any such replacement of Swing Line Lender. At the time any such replacement or resignation shall become effective, (i) the Borrower shall prepay any outstanding Swing Line Loans made by the resigning or removed Swing Line Lender, (ii) upon such prepayment, the resigning or removed Swing Line Lender shall surrender any Swing Line Note held by it to the Borrower for cancellation, and (iii) the Borrower shall issue, if so requested by the successor Swing Line Loan Lender, a new Swing Line Note to the successor Swing Line Lender, in the principal amount of the Swing Line Sublimit then in effect and with other appropriate insertions. From and after the effective date of any such replacement or resignation, (x) any successor Swing Line Lender shall have all the rights and obligations of a Swing Line Lender under this Agreement with respect to Swing Line Loans made thereafter and (y) references herein to the term “Swing Line Lender” shall be deemed to refer to such successor or to any previous Swing Line Lender, or to such successor and all previous Swing Line Lenders, as the context shall require.
2.4. Issuance of Letters of Credit and Purchase of Participations Therein.
(a) Letters of Credit. During the Revolving Commitment Period, subject to the terms and conditions hereof, Issuing Bank agrees to issue Letters of Credit for the account of the Borrower in the aggregate amount up to but not exceeding the Letter of Credit Sublimit; provided, (i) each Letter of Credit shall be denominated in Dollars; (ii) the stated amount of each Letter of Credit shall not be less than $25,000 or such lesser amount as the Issuing Bank and the Borrower may agree; (iii) after giving effect to such issuance, in no event shall (x) the Total Utilization of Revolving Commitments exceed the Revolving Commitments then in effect or (y) the ratio of the Borrowing Base Value to the Total Utilization of Revolving Commitments be less than 1.50:1.00; (iv) after giving effect to such issuance, in no event shall the Letter of Credit Usage exceed the Letter of Credit Sublimit then in effect; and (v) no Letter of Credit shall have an expiration date later than the earlier of (1) five days prior to the third anniversary of the Original Closing Date (the “Letter of Credit Expiration Date”) and (2) the date which is one year from the date of issuance of such Letter of Credit; provided, however, that Issuing Bank may agree in its reasonable discretion that a Letter of Credit will automatically be extended for one or more successive periods not to exceed one year each (but in any event, not beyond the Letter of Credit Expiration Date unless the Borrower shall, not later than five days preceding the Letter of Credit Expiration Date, Cash Collateralize in accordance with Section 2.25, an amount equal to the Minimum Collateral Amount with respect to any Letters of Credit having an expiry date later than the Letter of Credit Expiration Date; provided, further, that the obligations under this Section 2.4 in respect of such Letters of Credit of (i) the Borrower shall survive the Revolving Commitment Termination Date and shall remain in effect until no such Letters of Credit remain outstanding and (ii) each Lender shall be reinstated, to the extent any such Cash Collateral, the application thereof or reimbursement in respect thereof is required to be returned to the Borrower by Issuing Bank after the Revolving Commitment Termination Date and while the related Letter of Credit remains outstanding. Amounts held in such cash collateral account shall be held and applied by Administrative Agent in the manner and for the purposes set forth in Section 2.4(d)), unless Issuing
45
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\0000000.11
Bank elects not to extend for any such additional period; provided, Issuing Bank shall not extend any such Letter of Credit if it has received written notice that an Event of Default has occurred and is continuing at the time Issuing Bank must elect to allow such extension; provided, further, if any Lender is a Defaulting Lender, Issuing Bank shall not be required to issue any Letter of Credit unless (x) first, Administrative Agent is holding sufficient Cash Collateral for the obligations of such Defaulting Lender, (y) second, after taking into account the reallocation of such Defaulting Lender’s participation obligations pro rata, among the non-Defaulting Lenders, the Utilization of Revolving Commitments of such Lenders does not exceed their respective Revolving Commitments or (z) third, Issuing Bank has entered into arrangements reasonably satisfactory to it and the Borrower to eliminate Issuing Bank’s risk with respect to the Defaulting Lenders’ participation obligations in respect of Letters of Credit of the Defaulting Lender, including by Cash Collateralizing such Defaulting Lender’s Pro Rata Share of the Letter of Credit Usage.
(b) Notice of Issuance. Subject to Section 3.2(b), whenever the Borrower desires the issuance of a Letter of Credit, it shall deliver to Administrative Agent an Issuance Notice no later than 12:00 p.m. (New York City time) at least three Business Days, or such shorter period as may be agreed to by Issuing Bank in any particular instance, in advance of the requested date of issuance. Subject to satisfaction or waiver of the conditions set forth in Section 3.2, Issuing Bank shall issue the requested Letter of Credit on the requested date of issuance in accordance with Issuing Bank’s standard operating procedures. Upon the issuance of any Letter of Credit or amendment or modification to a Letter of Credit, Issuing Bank shall promptly notify each Lender with a Revolving Commitment of such issuance, and, if requested by a Lender, provide a copy of such Letter of Credit or amendment or modification to a Letter of Credit and the amount of such Lender’s respective participation in such Letter of Credit pursuant to Section 2.4(e).
(c) Responsibility of Issuing Bank With Respect to Requests for Drawings and Payments. In determining whether to honor any drawing under any Letter of Credit by the beneficiary thereof, Issuing Bank shall be responsible only to examine the documents delivered under such Letter of Credit with reasonable care so as to ascertain whether they appear on their face to be in accordance with the terms and conditions of such Letter of Credit. As between the Borrower and Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit issued by Issuing Bank by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, Issuing Bank shall not be responsible for: (i) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in connection with the application for and issuance of any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) failure of the beneficiary of any such Letter of Credit to comply fully with any conditions required in order to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (v) errors in interpretation of technical terms; (vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any
46
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
such Letter of Credit or of the proceeds thereof; (vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or (viii) any consequences arising from causes beyond the control of Issuing Bank, including any Governmental Acts; none of the above shall affect or impair, or prevent the vesting of, any of Issuing Bank’s rights or powers hereunder. Without limiting the foregoing and in furtherance thereof, any action taken or omitted by Issuing Bank under or in connection with the Letters of Credit or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not give rise to any liability on the part of Issuing Bank to the Borrower. Notwithstanding anything to the contrary contained in this Section 2.4(c), each Borrower shall retain any and all rights it may have against Issuing Bank for any liability arising solely out of the gross negligence or willful misconduct of Issuing Bank as determined by a final, non-appealable judgment of a court of competent jurisdiction.
(d) Reimbursement by the Borrower of Amounts Drawn or Paid Under Letters of Credit. In the event Issuing Bank has determined to honor a drawing under a Letter of Credit, it shall immediately notify the Borrower and Administrative Agent, and the Borrower shall reimburse Issuing Bank on or before the Business Day immediately following the date on which such drawing is honored (the “Reimbursement Date”) in an amount in Dollars and in same day funds equal to the amount of such honored drawing; provided, anything contained herein to the contrary notwithstanding, (i) unless the Borrower shall have notified Administrative Agent and Issuing Bank prior to 10:00 a.m. (New York City time) on the date such drawing is honored that the Borrower intends to reimburse Issuing Bank for the amount of such honored drawing with funds other than the proceeds of Revolving Loans, the Borrower shall be deemed to have given a timely Funding Notice to Administrative Agent requesting Lenders with Revolving Commitments to make Revolving Loans that are Base Rate Loans on the Reimbursement Date in an amount in Dollars equal to the amount of such honored drawing, and (ii) subject to satisfaction or waiver of the conditions specified in Section 3.2, Lenders with Revolving Commitments shall, on the Reimbursement Date, make Revolving Loans that are Base Rate Loans in the aggregate amount of such honored drawing, the proceeds of which shall be applied directly by Administrative Agent to reimburse Issuing Bank for the amount of such honored drawing; and provided further, if for any reason proceeds of Revolving Loans are not received by Issuing Bank on the Reimbursement Date in an amount equal to the amount of such honored drawing, the Borrower shall reimburse Issuing Bank, on written demand, in an amount in same day funds equal to the excess of the amount of such honored drawing over the aggregate amount of such Revolving Loans, if any, which are so received. Nothing in this Section 2.4(d) shall be deemed to relieve any Lender with a Revolving Commitment from its obligation to make Revolving Loans on the terms and conditions set forth herein, and the Borrower shall retain any and all rights it may have against any such Lender resulting from the failure of such Lender to make such Revolving Loans under this Section 2.4(d).
(e) Lenders’ Purchase of Participations in Letters of Credit. Immediately upon the issuance of each Letter of Credit, each Lender having a Revolving Commitment shall be deemed to have purchased, and hereby agrees to irrevocably purchase, from Issuing Bank a participation in such Letter of Credit and any drawings honored thereunder in an amount equal to such Lender’s Pro Rata Share (with respect to the Revolving Commitments) of the maximum
47
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
amount which is or at any time may become available to be drawn thereunder. In the event that the Borrower shall fail for any reason to reimburse Issuing Bank as provided in Section 2.4(d), Issuing Bank shall promptly notify each Lender with a Revolving Commitment of the unreimbursed amount of such honored drawing and of such Lender’s respective participation therein based on such Lender’s Pro Rata Share of the Revolving Commitments. Each Lender with a Revolving Commitment shall make available to Issuing Bank an amount equal to its respective participation, in Dollars and in same day funds, at the office of Issuing Bank specified in such notice, not later than 12:00 p.m. (New York City time) on the first Business Day after the date notified by Issuing Bank. In the event that any Lender with a Revolving Commitment fails to make available to Issuing Bank on such Business Day the amount of such Lender’s participation in such Letter of Credit as provided in this Section 2.4(e), Issuing Bank shall be entitled to recover such amount on written demand from such Lender together with interest thereon for three Business Days at the rate customarily used by Issuing Bank for the correction of errors among banks and thereafter at the Base Rate. Nothing in this Section 2.4(e) shall be deemed to prejudice the right of any Lender with a Revolving Commitment to recover from Issuing Bank any amounts made available by such Lender to Issuing Bank pursuant to this Section in the event that the payment with respect to a Letter of Credit in respect of which payment was made by such Lender constituted gross negligence or willful misconduct on the part of Issuing Bank. In the event Issuing Bank shall have been reimbursed by other Lenders pursuant to this Section 2.4(e) for all or any portion of any drawing honored by Issuing Bank under a Letter of Credit, such Issuing Bank shall distribute to each Lender which has paid all amounts payable by it under this Section 2.4(e) with respect to such honored drawing such Lender’s Pro Rata Share of all payments subsequently received by Issuing Bank from the Borrower in reimbursement of such honored drawing when such payments are received. Any such distribution shall be made to a Lender at its primary address set forth below its name on Appendix B or at such other address as such Lender may request.
(f) Obligations Absolute. The obligation of the Borrower to reimburse Issuing Bank for drawings honored under the Letters of Credit issued by it and to repay any Revolving Loans made by Lenders pursuant to Section 2.4(d) and the obligations of Lenders under Section 2.4(e) shall be unconditional and irrevocable and shall be paid strictly in accordance with the terms hereof under all circumstances including any of the following circumstances: (i) any lack of validity or enforceability of any Letter of Credit; (ii) the existence of any claim, set‑off, defense or other right which the Borrower or any Lender may have at any time against a beneficiary or any transferee of any Letter of Credit (or any Persons for whom any such transferee may be acting), Issuing Bank, Lender or any other Person or, in the case of a Lender, against the Borrower, whether in connection herewith, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between the Borrower, the Parent Guarantor or one of their respective Subsidiaries and the beneficiary for which any Letter of Credit was procured); (iii) any draft or other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (iv) payment by Issuing Bank under any Letter of Credit against presentation of a draft or other document which does not strictly comply with the terms of such Letter of Credit; (v) any payment made by the Issuing Bank under any Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter
48
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
of Credit, including any arising in connection with any proceeding under the Bankruptcy Code; (vi) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of the Borrower, the Parent Guarantor or any of their respective Subsidiaries; (vii) any breach hereof or any other Credit Document by any party thereto; (viii) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing; or (ix) the fact that an Event of Default or a Default shall have occurred and be continuing; provided, in each case, that payment by Issuing Bank under the applicable Letter of Credit shall not have constituted gross negligence or willful misconduct of Issuing Bank under the circumstances in question as determined by a final, non-appealable judgment of a court of competent jurisdiction.
(g) Indemnification. Without duplication of any obligation of the Borrower under Sections 2.20, 10.2 or 10.3, in addition to amounts payable as provided herein, the Borrower hereby agrees to protect, indemnify, pay and save harmless Issuing Bank from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable fees, out-of-pocket expenses and disbursements of outside counsel) which Issuing Bank may incur or be subject to as a consequence, direct or indirect, of (i) the issuance of any Letter of Credit by Issuing Bank, other than as a result of (1) the gross negligence or willful misconduct of Issuing Bank as determined by a final, non-appealable judgment of a court of competent jurisdiction or (2) the wrongful dishonor by Issuing Bank of a proper written demand for payment made under any Letter of Credit issued by it, or (ii) the failure of Issuing Bank to honor a drawing under any such Letter of Credit as a result of any Governmental Act; provided, that to the extent such claims, demands, liabilities, damages, losses, costs, charges and expenses relate to Taxes, they shall be subject to the provisions of Section 2.20.
(h) Resignation and Removal of Issuing Bank. An Issuing Bank may resign as Issuing Bank upon 60 days prior written notice to Administrative Agent, Lenders and the Borrower. An Issuing Bank may be replaced at any time by written agreement among the Borrower, Administrative Agent, the replaced Issuing Bank (provided that no consent of the replaced Issuing Bank will be required if the replaced Issuing Bank has no Letters of Credit or reimbursement Obligations with respect thereto outstanding) and the successor Issuing Bank. Administrative Agent shall notify Lenders of any such replacement of such Issuing Bank. At the time any such replacement or resignation shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank. From and after the effective date of any such replacement or resignation, (i) any successor Issuing Bank shall have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term “Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require. After the replacement or resignation of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto to the extent that Letters of Credit issued by it remain outstanding and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such replacement or resignation, but shall not be required to issue additional Letters of Credit.
49
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
(i) Conflicts with Letter of Credit Documentation. In the event of any conflict or inconsistency between the terms hereof and any Letter of Credit documentation, the terms hereof shall control and all representations, warranties or covenants contained in any Letter of Credit documentation shall be qualified in the manner and to the extent set forth herein mutatis mutandis and to the extent not contained herein shall be null and void.
2.5. Pro Rata Shares; Availability of Funds.
(a) Pro Rata Shares. Subject to Section 2.22, all Loans shall be made, and all participations purchased, by Lenders simultaneously and proportionately to their respective Pro Rata Shares, it being understood that, except to the extent set forth in Section 2.22(a)(iv), no Lender shall be responsible for any default by any other Lender in such other Lender’s obligation to make a Loan requested hereunder or purchase a participation required hereby nor shall any Revolving Commitment of any Lender be increased or decreased as a result of a default by any other Lender in such other Lender’s obligation to make a Loan requested hereunder or purchase a participation required hereby.
(b) Availability of Funds. Unless Administrative Agent shall have been notified by any Lender prior to the applicable Credit Date that such Lender does not intend to make available to Administrative Agent the amount of such Lender’s Loan requested on such Credit Date, Administrative Agent may assume that such Lender has made such amount available to Administrative Agent on such Credit Date and Administrative Agent may, in its sole discretion, but shall not be obligated to, make available to the Borrower a corresponding amount on such Credit Date. If such corresponding amount is not in fact made available to Administrative Agent by such Lender, Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon, for each day from such Credit Date until the date such amount is paid to Administrative Agent, at the customary rate set by Administrative Agent for the correction of errors among banks for three Business Days and thereafter at the Base Rate. If such Lender does not pay such corresponding amount forthwith upon Administrative Agent’s demand therefor, Administrative Agent shall promptly notify the Borrower and the Borrower shall promptly pay such corresponding amount to Administrative Agent together with interest thereon, for each day from such Credit Date until the date such amount is paid to Administrative Agent, at the rate payable hereunder for Base Rate Loans for such Class of Loans. Nothing in this Section 2.5(b) shall be deemed to relieve any Lender from its obligation to fulfill its Revolving Commitments hereunder or to prejudice any rights that the Borrower may have against any Lender as a result of any default by such Lender hereunder.
2.6. Use of Proceeds. The proceeds of the Revolving Loans, Swing Line Loans and Letters of Credit made on and after the Original Closing Date may be applied by the Borrower for working capital and general corporate purposes of the Borrower, the Parent Guarantor and their respective Subsidiaries. No portion of the proceeds of any Credit Extension shall be used in any manner that causes or might cause such Credit Extension or the application of such proceeds to violate Regulation T, Regulation U or Regulation X of the Board of Governors or any other regulation thereof or to violate the Exchange Act.
50
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
2.7. Evidence of Debt; Register; Lenders’ Books and Records; Notes.
(a) Lenders’ Evidence of Debt. Each Lender shall maintain on its internal records an account or accounts evidencing the Obligations of the Borrower to such Lender, including the amounts of the Loans made by it and each repayment and prepayment in respect thereof. Subject to the entries in the Register (which shall be controlling), any such recordation shall be conclusive and binding on the Borrower, absent manifest error; provided, that the failure to make any such recordation, or any error in such recordation, shall not affect any Lender’s Revolving Commitments or the Borrower’ Obligations in respect of any applicable Loans; and provided further, in the event of any inconsistency between the Register and any Lender’s records, the recordations in the Register shall govern.
(b) Register. Administrative Agent (or its agent or sub-agent appointed by it), acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain at its Principal Office a register for the recordation of the names and addresses of Lenders and the Revolving Commitments and Loans of each Lender from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and Borrower, Administrative Agent and Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. Administrative Agent shall record, or shall cause to be recorded, in the Register the Revolving Commitments and the Loans in accordance with the provisions of Section 10.6, and each repayment or prepayment in respect of the principal amount of the Loans, and any such recordation shall be conclusive and binding on Borrower and each Lender, absent manifest error; provided, failure to make any such recordation, or any error in such recordation, shall not affect any Lender’s Revolving Commitments or Borrower’s Obligations in respect of any Loan. Borrower hereby designates Administrative Agent to serve as Borrower’s non-fiduciary agent solely for purposes of maintaining the Register as provided in this Section 2.7, and Borrower hereby agrees that, to the extent Administrative Agent serves in such capacity, Administrative Agent and its officers, directors, employees, agents, sub-agents and affiliates shall constitute “Indemnitees.”
(c) Notes. If so requested by any Lender by written notice to the Borrower (with a copy to Administrative Agent) at least three Business Days prior to the Amendment and Restatement Date, or at any time thereafter, the Borrower shall execute and deliver to such Lender (and/or, if applicable and if so specified in such notice, to any Person who is an assignee of such Lender pursuant to Section 10.6) on the Amendment and Restatement Date (or, if such notice is delivered after the Amendment and Restatement Date, promptly after the Borrower’ receipt of such notice) a Note or Notes to evidence such Lender’s Revolving Loan or Swing Line Loan, as the case may be.
2.8. Interest on Loans.
51
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
(a) Except as otherwise set forth herein, each Loan shall bear interest on the unpaid principal amount thereof from the date made through repayment (whether by acceleration or otherwise) thereof as follows:
(i) in the case of Revolving Loans:
(1) if a Base Rate Loan, at the Base Rate plus the Applicable Margin; or
(2) if a Eurodollar Rate Loan, at the Adjusted Eurodollar Rate plus the Applicable Margin; or
(ii) in the case of Swing Line Loans, at the Base Rate plus the Applicable Margin.
(b) The basis for determining the rate of interest with respect to any Loan (except a Swing Line Loan which can be made and maintained as Base Rate Loans only), and the Interest Period with respect to any Eurodollar Rate Loan, shall be selected by the Borrower and notified to Administrative Agent and Lenders pursuant to the applicable Funding Notice or Conversion/Continuation Notice, as the case may be.
(c) In connection with Eurodollar Rate Loans there shall be no more than eight (8) Interest Periods outstanding at any time. In the event the Borrower fails to specify between a Base Rate Loan or a Eurodollar Rate Loan in the applicable Funding Notice or Conversion/Continuation Notice, such Loan (if outstanding as a Eurodollar Rate Loan) will be automatically converted into a Base Rate Loan on the last day of the then‑current Interest Period for such Loan (or if outstanding as a Base Rate Loan will remain as, or (if not then outstanding) will be made as, a Base Rate Loan). In the event the Borrower fails to specify an Interest Period for any Eurodollar Rate Loan in the applicable Funding Notice or Conversion/Continuation Notice requesting a Eurodollar Rate Loan, the Borrower shall be deemed to have selected an Interest Period of one month. As soon as practicable after 10:00 a.m. (New York City time) on each Interest Rate Determination Date, Administrative Agent shall determine (which determination shall, absent manifest error, be final, conclusive and binding upon all parties) the interest rate that shall apply to the Eurodollar Rate Loans for which an interest rate is then being determined for the applicable Interest Period and shall promptly give notice thereof (in writing or by telephone confirmed in writing) to the Borrower and each Lender.
(d) Interest payable pursuant to Section 2.8(a) shall be computed (i) in the case of Base Rate Loans (including Swing Line Loans), on the basis of a 365‑day or 366‑day year, as the case may be, and (ii) in the case of all other Loans, on the basis of a 360‑day year, in each case for the actual number of days elapsed in the period during which it accrues. In computing interest on any Loan, the date of the making of such Loan or the first day of an Interest Period applicable to such Loan or, with respect to a Base Rate Loan being converted from a Eurodollar Rate Loan, the date of conversion of such Eurodollar Rate Loan to such Base Rate Loan, as the case may be, shall be included, and the date of payment of such Loan or the expiration date of an Interest Period applicable to such Loan or, with respect to a Base Rate Loan being converted to
52
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
a Eurodollar Rate Loan, the date of conversion of such Base Rate Loan to such Eurodollar Rate Loan, as the case may be, shall be excluded; provided, if a Loan is repaid on the same day on which it is made, one day’s interest shall be paid on that Loan.
(e) Except as otherwise set forth herein, interest on each Loan (i) shall accrue on a daily basis and shall be payable in arrears on each Interest Payment Date with respect to interest accrued on and to the day immediately preceding such payment date; (ii) shall accrue on a daily basis and shall be payable in arrears upon any prepayment of that Loan, whether voluntary or mandatory, to the extent accrued on the amount being prepaid; and (iii) shall accrue on a daily basis and shall be payable in arrears at maturity of the Loans, including final maturity of the Loans; provided, however, with respect to any voluntary prepayment of a Base Rate Loan, accrued interest shall instead be payable on the applicable Interest Payment Date.
(f) Except to the extent funded with Revolving Loans deemed made pursuant to Section 2.4(d), the Borrower agrees to pay to Issuing Bank, with respect to drawings honored under any Letter of Credit, interest on the amount paid by Issuing Bank in respect of each such honored drawing from the date such drawing is honored to but excluding the date such amount is reimbursed by or on behalf of the Borrower at a rate equal to (i) for the period from the date one Business Day following the date such drawing is honored to but excluding the applicable Reimbursement Date, the rate of interest otherwise payable hereunder with respect to Revolving Loans that are Base Rate Loans and (ii) thereafter, a rate determined in accordance with Section 2.10.
(g) Interest payable pursuant to Section 2.8(f) shall be computed on the basis of a 365/366‑day year for the actual number of days elapsed in the period during which it accrues, and shall be payable on written demand or, if no such demand is made, on the date on which the related drawing under a Letter of Credit is reimbursed in full. Promptly upon receipt by Issuing Bank of any payment of interest pursuant to Section 2.8(f), Issuing Bank shall distribute to each Lender, out of the interest received by Issuing Bank in respect of the period from the date such drawing is honored to but excluding the date on which Issuing Bank is reimbursed for the amount of such drawing (including any such reimbursement out of the proceeds of any Revolving Loans), the amount that such Lender would have been entitled to receive in respect of the letter of credit fee that would have been payable in respect of such Letter of Credit for such period if no drawing had been honored under such Letter of Credit. In the event Issuing Bank shall have been reimbursed by Lenders for all or any portion of such honored drawing, Issuing Bank shall distribute to each Lender which has paid all amounts payable by it under Section 2.4(e) with respect to such honored drawing such Lender’s Pro Rata Share of any interest received by Issuing Bank in respect of that portion of such honored drawing so reimbursed by Lenders for the period from the date on which Issuing Bank was so reimbursed by Lenders to but excluding the date on which such portion of such honored drawing is reimbursed by the Borrower.
2.9. Conversion/Continuation.
(a) Subject to Section 2.18 and so long as no Event of Default shall have occurred and then be continuing, the Borrower shall have the option:
53
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
(i) to convert at any time all or any part of any Revolving Loan equal to $1,000,000 and integral multiples of $250,000 in excess of that amount from one Type of Loan to another Type of Loan; provided, a Eurodollar Rate Loan may only be converted on the expiration of the Interest Period applicable to such Eurodollar Rate Loan unless the Borrower shall pay all amounts due under Section 2.18 in connection with any such conversion; or
(ii) upon the expiration of any Interest Period applicable to any Eurodollar Rate Loan, to continue all or any portion of such Loan equal to $1,000,000 and integral multiples of $250,000 in excess of that amount as a Eurodollar Rate Loan.
(b) Subject to Section 3.2(b), The Borrower shall deliver a Conversion/Continuation Notice to Administrative Agent no later than 11:00 a.m. (New York City time) at least one Business Day in advance of the proposed conversion date (in the case of a conversion to a Base Rate Loan) and at least three Business Days in advance of the proposed conversion/continuation date (in the case of a conversion to, or a continuation of, a Eurodollar Rate Loan). Except as otherwise provided herein, a Conversion/Continuation Notice for conversion to, or continuation of, any Eurodollar Rate Loans shall be irrevocable on and after the related Interest Rate Determination Date, and the Borrower shall be bound to effect a conversion or continuation in accordance therewith. If on any day a Loan is outstanding with respect to which a Funding Notice or Conversion/Continuation Notice has not been delivered to Administrative Agent in accordance with the terms hereof specifying the applicable basis for determining the rate of interest, then for that day such Loan shall be a Base Rate Loan.
2.10. Default Interest.
(a) Upon the occurrence and during the continuance of an Event of Default, the principal amount of Loans outstanding and, to the extent permitted by applicable law, any overdue interest payments on the Loans or any overdue fees or other amounts owed hereunder, shall thereafter bear interest (including post‑petition interest in any proceeding under the Bankruptcy Code or other applicable bankruptcy laws) payable on written demand at a rate equal to the Default Rate.
(b) Payment or acceptance of the increased rates of interest provided for in this Section 2.10 is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of Administrative Agent or any Lender.
2.11. Fees.
(a) The Borrower agrees to pay to Lenders having Revolving Exposure:
(i) commitment fees equal to (1) the daily difference between (a) the Revolving Commitments and (b) the aggregate principal amount of (x) all outstanding Revolving Loans (for the avoidance of doubt, excluding Swing Line Loans) plus (y) the
54
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
Letter of Credit Usage, times (2) the Applicable Revolving Commitment Fee Percentage; and
(ii) letter of credit fees equal to (1) the Applicable Margin for Revolving Loans that are Eurodollar Rate Loans, times (2) the aggregate daily maximum amount available to be drawn under all such Letters of Credit (regardless of whether any conditions for drawing could then be met and determined as of the close of business on any date of determination).
All fees referred to in this Section 2.11(a) shall be paid to Administrative Agent at its Principal Office and upon receipt, Administrative Agent shall promptly distribute to each Lender its Pro Rata Share thereof.
(b) The Borrower agrees to pay directly to Issuing Bank, for its own account, the following fees:
(i) a fronting fee equal to the lesser of (x) $1,500 per annum and (y) 0.125% per annum, times the aggregate daily maximum amount available to be drawn under all Letters of Credit (determined as of the close of business on any date of determination); and
(ii) such documentary and processing charges and courier delivery fees for any issuance, amendment, transfer or payment of a Letter of Credit as are in accordance with Issuing Bank’s standard schedule for such charges and as in effect at the time of such issuance, amendment, transfer or payment, as the case may be.
(c) All fees referred to in Section 2.11(a) and 2.11(b)(i) shall be calculated on the basis of a 360‑day year and the actual number of days elapsed and shall be payable quarterly in arrears on January 1, April 1, July 1 and October 1 of each year during the Revolving Commitment Period, commencing on the first such date to occur after the Original Closing Date, and on the Revolving Commitment Termination Date.
(d) In addition to any of the foregoing fees, the Borrower agrees to pay to Agents such other fees in the amounts and at the times separately agreed upon in writing.
2.12. Scheduled Payments/Commitment Reductions. The principal amounts of the Revolving Loans, together with all other amounts owed hereunder with respect thereto, shall be paid in full no later than the Revolving Commitment Termination Date.
2.13. Voluntary Prepayments/Commitment Reductions.
(a) Voluntary Prepayments.
(i) Any time and from time to time:
55
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
(1) with respect to Base Rate Loans, the Borrower may prepay any such Loans on any Business Day in whole or in part, in an aggregate minimum amount of $500,000 and integral multiples of $250,000 in excess of that amount (or the remaining outstanding balance of such Loans);
(2) with respect to Eurodollar Rate Loans, the Borrower may prepay any such Loans on any Business Day in whole or in part in an aggregate minimum amount of $1,000,000 and integral multiples of $500,000 in excess of that amount (or the remaining outstanding balance of such Loans); and
(3) with respect to Swing Line Loans, the Borrower may prepay any such Loans on any Business Day in whole or in part in an aggregate minimum amount of $250,000, and in integral multiples of $50,000 in excess of that amount (or the remaining outstanding balance of such Loans).
(ii) All such prepayments shall be made:
(1) upon not less than one Business Day’s prior written or telephonic notice in the case of Base Rate Loans;
(2) upon not less than three Business Days’ prior written or telephonic notice in the case of Eurodollar Rate Loans; and
(3) upon written or telephonic notice on the date of prepayment, in the case of Swing Line Loans;
in each case given to Administrative Agent or Swing Line Lender, as the case may be, by 12:00 p.m. (New York City time) on the date required and, if given by telephone, promptly confirmed by delivery of written notice thereof to Administrative Agent (and Administrative Agent will promptly transmit such original notice for Revolving Loans by facsimile, electronic mail or telephone to each Lender) or Swing Line Lender, as the case may be. Upon the giving of any such notice, the principal amount of the Loans specified in such notice shall become due and payable on the prepayment date specified therein; provided, that any such notice may be conditioned on the consummation of a refinancing or other transaction and may be rescinded or postponed on or prior to the proposed prepayment date if such refinancing or other transaction is not consummated or is delayed. Any such voluntary prepayment shall be applied as specified in Section 2.15(a).
(b) Voluntary Commitment Reductions.
(i) The Borrower may, upon not less than three Business Days’ prior written or telephonic notice promptly confirmed by delivery of written notice thereof to Administrative Agent (which original written notice Administrative Agent will promptly transmit by facsimile, electronic mail or telephone to each applicable Lender), at any time and from time to time terminate in whole or permanently reduce in part, without premium or penalty, the Revolving Commitments in an amount up to the amount by which the
56
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
Revolving Commitments exceed the Total Utilization of Revolving Commitments at the time of such proposed termination or reduction (after giving effect to any concurrent prepayments on such date); provided, any such partial reduction of the Revolving Commitments shall be in an aggregate minimum amount of $1,000,000 and integral multiples of $1,000,000 in excess of that amount.
(ii) The Borrower’s notice to Administrative Agent shall designate the date (which shall be a Business Day) of such termination or reduction and the amount of any partial reduction, and such termination or reduction of the Revolving Commitments shall be effective on the date specified in the Borrower’s notice and shall reduce the Revolving Commitment of each Lender proportionately to its Pro Rata Share thereof; provided, that any such notice may be conditioned on the consummation of a refinancing or other transaction and may be rescinded or postponed on or prior to the proposed reduction date if such refinancing or other transaction is not consummated or is delayed.
2.14. Mandatory Prepayments.
(a) If for any reason the Total Utilization of Revolving Commitments at any time exceeds the aggregate Revolving Commitments at such time, the Borrower shall immediately prepay Revolving Loans, Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess.
(b) If on the last day of any Fiscal Quarter, the ratio of the Borrowing Base Value (as calculated in the Borrowing Base Certificate required to be delivered for such Fiscal Quarter pursuant to Section 5.1(i) or the most recently delivered Borrowing Base Certificate delivered pursuant to Section 2.26) to the Total Utilization of Revolving Commitments is less than 1.50:1.00 at such time, the Borrower shall within five (5) Business Days after the date on which the financial statements for such Fiscal Quarter are required to be delivered pursuant to Section 5.1(a) either (i) prepay Revolving Loans, Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount sufficient to cause such ratio to be not less than 1.50:1.00 at such time or (ii) add additional CDO Bonds, Unencumbered Loans and/or Real Estate Assets to the Borrowing Base with aggregate net carrying values at least sufficient to cause such ratio to be not less than 1.50:1.00 at such time.
2.15. Application of Prepayments/Reductions.
(a) Application of Prepayments by Type of Loans. Except for any prepayments during the continuance of an Event of Default, any prepayment of any Loan pursuant to Section 2.13(a) shall be applied as specified by the Borrower in the applicable notice of prepayment. Except for any prepayments during the continuance of an Event of Default, any prepayment of any Loan pursuant to Section 2.14 and any prepayment of a Loan pursuant to Section 2.13(a) for which the Borrower has not specified the Loans to which any such prepayment shall be applied shall be applied as follows:
first, to repay outstanding Swing Line Loans to the full extent thereof;
57
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
second, to repay outstanding Revolving Loans to the full extent thereof;
and
third, to Cash Collateralize any outstanding Letters of Credit.
(b) Application of Prepayments of Loans to Base Rate Loans and Eurodollar Rate Loans. Any prepayment shall be applied first to Base Rate Loans to the full extent thereof before application to Eurodollar Rate Loans, in each case in a manner which minimizes the amount of any payments required to be made by the Borrower pursuant to Section 2.18(c).
(c) Application of Prepayments During the Continuance of an Event of Default. During the continuance of an Event of Default, Agent may, and shall upon the direction of Requisite Lenders, apply any and all payments received by Agent in respect of any Obligation in accordance with clauses first through fifth below.
first, to the payment of all costs and expenses of Administrative Agent and Collateral Agent to the extent such costs and expenses are payable or reimbursable by the Credit Parties hereunder and all amounts for which Administrative Agent and Collateral Agent are entitled to indemnification hereunder;
second, to the payment of all costs and expenses of the other Secured Parties to the extent such costs and expenses are payable or reimbursable by the Credit Parties hereunder and all amounts for which the other Secured Parties are entitled to indemnification hereunder;
third, to the payment in full in cash, pro rata, of interest and other amounts constituting Obligations (other than principal, reimbursement Obligations with respect to Letters of Credit and obligations to Cash Collateralize Letters of Credit), in each case equally and ratably in accordance with the respective amounts thereof then due and owing;
fourth, to the payment in full in cash, pro rata, of the principal amount of the Obligations and any premium thereon (including reimbursement Obligations with respect to Letters of Credit and obligations to Cash Collateralize Letters of Credit); and
fifth, the balance, if any, to the Person lawfully entitled thereto (including the applicable Credit Party or its successors or assigns) or as a court of competent jurisdiction may direct.
In the event that any such proceeds are insufficient to pay in full the items described in clauses first through fifth of this Section 2.15(c), the Credit Parties shall remain liable, jointly and severally, for any deficiency. The order of priority set forth in clauses first through fifth of this Section 2.15(c) and the related provisions of this Agreement are set forth solely to determine the rights and priorities of Administrative Agent, Collateral Agent and the Lenders as among themselves.
58
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
The order of priority set forth in clauses second through fifth of this Section 2.15(c) may at any time and from time to time be changed by the Requisite Lenders without necessity of notice to or consent of or approval by Borrower or any other Person; provided, however, that the foregoing shall not be deemed to diminish any consent rights of the Lenders under Section 10.5. The order of priority set forth in clause first of this Section 2.15(c) may be changed only with the prior written consent of Collateral Agent and Administrative Agent.
2.16. General Provisions Regarding Payments.
(a) All payments by the Borrower of principal, interest, fees and other Obligations shall be made in Dollars in same day funds, without defense, recoupment, set-off or counterclaim, free of any restriction or condition, and delivered to Administrative Agent not later than 2:00 p.m. (New York City time) on the date due at the Principal Office of Administrative Agent for the account of Lenders; for purposes of computing interest and fees, funds received by Administrative Agent after that time on such due date shall be deemed to have been paid by the Borrower on the next succeeding Business Day.
(b) All payments in respect of the principal amount of any Loan (other than voluntary prepayments of Revolving Loans and Swing Line Loans) shall be accompanied by payment of accrued interest on the principal amount being repaid or prepaid, and all such payments (and, in any event, any payments in respect of any Loan on a date when interest is due and payable with respect to such Loan) shall be applied to the payment of interest then due and payable before application to principal.
(c) Administrative Agent (or its agent or sub-agent appointed by it) shall promptly distribute to each Lender at such address as such Lender shall indicate in writing, such Lender’s applicable Pro Rata Share of all payments and prepayments of principal and interest due hereunder, together with all other amounts due thereto, including all fees payable with respect thereto, to the extent received by Administrative Agent.
(d) Notwithstanding the foregoing provisions hereof, if any Conversion/ Continuation Notice is withdrawn as to any Affected Lender or if any Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share of any Eurodollar Rate Loans, Administrative Agent shall give effect thereto in apportioning payments received thereafter.
(e) Subject to the provisos set forth in the definition of “Interest Period” as they may apply to Revolving Loans, whenever any payment to be made hereunder with respect to any Loan shall be stated to be due on a day that is not a Business Day, such payment shall be made on the next succeeding Business Day and, with respect to Revolving Loans only, such extension of time shall be included in the computation of the payment of interest hereunder or of the Revolving Commitment fees hereunder.
(f) Administrative Agent shall deem any payment by or on behalf of the Borrower hereunder that is not made in same day funds prior to 2:00 p.m. (New York City time) on the date due to be a non‑conforming payment. Any such payment shall not be deemed to have been received by Administrative Agent until the later of (i) the time such funds become available
59
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
funds, and (ii) the applicable next Business Day. Administrative Agent shall give prompt telephonic notice to the Borrower and each applicable Lender (confirmed in writing) if any payment is non‑conforming. Any non‑conforming payment may constitute or become a Default or Event of Default in accordance with the terms of Section 8.1(a). Interest shall continue to accrue on any principal as to which a non‑conforming payment is made until such funds become available funds (but in no event less than the period from the date of such payment to the next succeeding applicable Business Day) at the rate determined pursuant to Section 2.10 from the date such amount was due and payable until the date such amount is paid in full.
(g) If an Event of Default shall have occurred and is continuing, and the maturity of the Obligations shall have been accelerated pursuant to Section 8.1, all payments or proceeds received by Agents in respect of any of the Obligations shall be applied in accordance with the application arrangements described in Section 8.2.
2.17. Ratable Sharing. Lenders hereby agree among themselves that if any of them shall, whether by voluntary payment (other than a voluntary prepayment of Loans made and applied in accordance with the terms hereof), through the exercise of any right of set‑off or banker’s lien, by counterclaim or cross action or by the enforcement of any right under the Credit Documents or otherwise, or as adequate protection of a deposit treated as cash collateral under the Bankruptcy Code, receive payment or reduction of a proportion of the aggregate amount of principal, interest, amounts payable in respect of Letters of Credit, fees and other amounts then due and owing to such Lender hereunder or under the other Credit Documents (collectively, the “Aggregate Amounts Due” to such Lender) which is greater than the proportion received by any other Lender in respect of the Aggregate Amounts Due to such other Lender, then the Lender receiving such proportionately greater payment shall (a) notify Administrative Agent and each other Lender of the receipt of such payment and (b) apply a portion of such payment to purchase participations (which it shall be deemed to have purchased from each seller of a participation simultaneously upon the receipt by such seller of its portion of such payment) in the Aggregate Amounts Due to the other Lenders so that all such recoveries of Aggregate Amounts Due shall be shared by all Lenders in proportion to the Aggregate Amounts Due to them; provided, if all or part of such proportionately greater payment received by such purchasing Lender is thereafter recovered from such Lender upon the bankruptcy or reorganization of the Borrower or otherwise, those purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such purchasing Lender ratably to the extent of such recovery, but without interest. The Borrower expressly consents to the foregoing arrangement and agrees that any holder of a participation so purchased may, to the extent not prohibited by law, exercise any and all rights of banker’s lien, consolidation, set‑off or counterclaim with respect to any and all monies owing by the Borrower to that holder with respect thereto as fully as if that holder were owed the amount of the participation held by that holder. The provisions of this Section 2.17 shall not be construed to apply to (a) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or (b) any payment obtained by any Lender as consideration for the assignment or sale of a participation in any of its Loans or other Obligations owed to it.
2.18. Making or Maintaining Eurodollar Rate Loans.
60
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
(a) Inability to Determine Applicable Interest Rate. In the event that Administrative Agent shall have determined in good faith (which determination shall be final and conclusive and binding upon all parties hereto), on any Interest Rate Determination Date with respect to any Eurodollar Rate Loans, that by reason of circumstances affecting the London interbank market adequate and fair means do not exist for ascertaining the interest rate applicable to such Loans on the basis provided for in the definition of Adjusted Eurodollar Rate, Administrative Agent shall on such date give notice (by facsimile, electronic mail or by telephone confirmed in writing) to the Borrower and each Lender of such determination, whereupon (i) no Loans may be made as, or converted to, Eurodollar Rate Loans until such time as Administrative Agent notifies the Borrower and Lenders that the circumstances giving rise to such notice no longer exist (which notice shall be given as soon as reasonably practicable), and (ii) any Funding Notice or Conversion/Continuation Notice given by the Borrower with respect to the Loans in respect of which such determination was made shall be deemed to be rescinded or converted into a request for borrowing of Base Rate Loans at the Borrower’s option, in each case without payment of any amount under Section 2.18(c).
(b) Illegality or Impracticability of Eurodollar Rate Loans. In the event that on any date any Lender shall have determined in good faith (which determination shall be final and conclusive and binding upon all parties hereto but shall be made only after consultation with the Borrower and Administrative Agent) that the making, maintaining or continuation of its Eurodollar Rate Loans (i) has become unlawful as a result of compliance by such Lender in good faith with any law, treaty, governmental rule, regulation, guideline or order (or would conflict with any such treaty, governmental rule, regulation, guideline or order not having the force of law even though the failure to comply therewith would not be unlawful), or (ii) has become impracticable, as a result of contingencies occurring after the Original Closing Date which materially and adversely affect the London interbank market or the position of such Lender in that market, then, and in any such event, such Lender shall be an “Affected Lender” and it shall on that day give notice (by e-mail or by telephone confirmed in writing) to the Borrower and Administrative Agent of such determination (which notice Administrative Agent shall promptly transmit to each other Lender). If Administrative Agent receives a notice from (x) any Lender pursuant to clause (i) of the preceding sentence or (y) a notice from Lenders constituting Requisite Lenders pursuant to clause (ii) of the preceding sentence, then (1) the obligation of the Lenders (or, in the case of any notice pursuant to clause (i) of the preceding sentence, such Lender) to make Loans as, or to convert Loans to, Eurodollar Rate Loans shall be suspended until such notice shall be withdrawn by each Affected Lender (which withdrawal shall be made as soon as reasonably practicable), (2) to the extent such determination by the Affected Lender relates to a Eurodollar Rate Loan then being requested by the Borrower pursuant to a Funding Notice or a Conversion/Continuation Notice, the Lenders (or in the case of any notice pursuant to clause (i) of the preceding sentence, such Lender) shall make such Loan as (or continue such Loan as or convert such Loan to, as the case may be) a Base Rate Loan, (3) the Lenders’ (or in the case of any notice pursuant to clause (i) of the preceding sentence, such Lender’s) obligations to maintain their respective outstanding Eurodollar Rate Loans (the “Affected Loans”) shall be terminated at the earlier to occur of the expiration of the Interest Period then in effect with respect to the Affected Loans or when required by law, and (4) the Affected Loans shall automatically convert into Base Rate Loans on the date of such termination. Notwithstanding the foregoing, to the extent a determination by an Affected
61
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
Lender as described above relates to a Eurodollar Rate Loan then being requested by the Borrower pursuant to a Funding Notice or a Conversion/Continuation Notice, the Borrower shall have the option, subject to the provisions of Section 2.18(c), to rescind such Funding Notice or Conversion/Continuation Notice as to all Lenders by giving written or telephonic notice (promptly confirmed by delivery of written notice thereof) to Administrative Agent of such rescission on the date on which the Affected Lender gives notice of its determination as described above (which notice of rescission Administrative Agent shall promptly transmit to each other Lender). Except as provided in the immediately preceding sentence, nothing in this Section 2.18(b) shall affect the obligation of any Lender other than an Affected Lender to make or maintain Loans as, or to convert Loans to, Eurodollar Rate Loans in accordance with the terms hereof.
(c) Compensation for Breakage or Non‑Commencement of Interest Periods. The Borrower shall compensate each Lender, upon written request by such Lender (which request shall set forth the basis for requesting such amounts), for all reasonable losses, expenses and liabilities (including any interest paid or payable by such Lender to lenders of funds borrowed by it to make or carry its Eurodollar Rate Loans and any loss, expense or liability sustained by such Lender in connection with the liquidation or re‑employment of such funds but excluding loss of anticipated profits) which such Lender may sustain: (i) if for any reason (other than a default by such Lender) a borrowing of any Eurodollar Rate Loan does not occur on a date specified therefor in a Funding Notice or a telephonic request for borrowing, or a conversion to or continuation of any Eurodollar Rate Loan does not occur on a date specified therefor in a Conversion/Continuation Notice or a telephonic request for conversion or continuation; (ii) if any prepayment or other principal payment of, or any conversion of, any of its Eurodollar Rate Loans occurs on a date prior to the last day of an Interest Period applicable to that Loan; or (iii) if any prepayment of any of its Eurodollar Rate Loans is not made on any date specified in a notice of prepayment given by the Borrower.
(d) Booking of Eurodollar Rate Loans. Any Lender may make, carry or transfer Eurodollar Rate Loans at, to, or for the account of any of its branch offices or the office of an Affiliate of such Lender.
(e) Assumptions Concerning Funding of Eurodollar Rate Loans. Calculation of all amounts payable to a Lender under this Section 2.18 and under Section 2.19 shall be made as though such Lender had actually funded each of its relevant Eurodollar Rate Loans through the purchase of a Eurodollar deposit bearing interest at the rate obtained pursuant to clause (i) of the definition of Adjusted Eurodollar Rate in an amount equal to the amount of such Eurodollar Rate Loan and having a maturity comparable to the relevant Interest Period and through the transfer of such Eurodollar deposit from an offshore office of such Lender to a domestic office of such Lender in the United States of America; provided, however, each Lender may fund each of its Eurodollar Rate Loans in any manner it sees fit and the foregoing assumptions shall be utilized only for the purposes of calculating amounts payable under this Section 2.18 and under Section 2.19.
2.19. Increased Costs; Capital Adequacy.
62
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
(a) Compensation For Increased Costs and Taxes. In the event that any Lender (which term shall include Issuing Bank for purposes of this Section 2.19(a)) shall determine (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto) that any Change in Law: (i) imposes, modifies or holds applicable any reserve (including any marginal, emergency, supplemental, special or other reserve), special deposit, compulsory loan, FDIC insurance or similar requirement against assets held by, or deposits or other liabilities in or for the account of, or advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of such Lender (other than any such reserve or other requirements with respect to Eurodollar Rate Loans that are reflected in the definition of Adjusted Eurodollar Rate); (ii) subjects any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes); or (iii) imposes any other condition, cost or expense (other than Taxes) on or affecting such Lender (or its applicable lending office) or its obligations hereunder or the London interbank market; and the result of any of the foregoing is to increase the cost to such Lender of agreeing to make, making or maintaining Loans hereunder or to reduce any amount received or receivable by such Lender (or its applicable lending office) with respect thereto; then, in any such case, the Borrower shall promptly, but in no event more than ten (10) Business Days after such Lender’s demand, pay to such Lender, upon receipt of the statement referred to in the next sentence, such additional amount or amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender in its sole discretion shall determine) as may be necessary to compensate such Lender for any such increased cost or reduction in amounts received or receivable hereunder, so long as such Lender generally requires similar obligors under other credit facilities of this type made available by such Lender to similarly so compensate such Lender. Such Lender shall deliver to the Borrower (with a copy to Administrative Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to such Lender under this Section 2.19(a), which statement shall be conclusive and binding upon all parties hereto absent manifest error.
(b) Capital Adequacy Adjustment. In the event that any Lender (which term shall include Issuing Bank for purposes of this Section 2.19(b)) shall have determined that any Change in Law or compliance by any Lender (or its applicable lending office) with any guideline, request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any Governmental Authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on the capital of such Lender or any corporation controlling such Lender as a consequence of, or with reference to, such Lender’s Loans or Revolving Commitments or Letters of Credit, or participations therein or other obligations hereunder with respect to the Loans or the Letters of Credit to a level below that which such Lender or such controlling corporation could have achieved but for such adoption, effectiveness, phase‑in, applicability, change or compliance (taking into consideration the policies of such Lender or such controlling corporation with regard to capital adequacy or liquidity), then from time to time, promptly but in any event no more than ten (10) Business Days after receipt by the Borrower from such Lender of the statement referred to in the next sentence, the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or such controlling corporation on an after‑tax basis for such reduction, so long as such Lender generally requires similar obligors under other credit facilities of this type made available by such Lender to similarly
63
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
so compensate such Lender. Such Lender shall deliver to the Borrower (with a copy to Administrative Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to Lender under this Section 2.19(b), which statement shall be conclusive and binding upon all parties hereto absent manifest error.
2.20. Taxes; Withholding, Etc.
(a) Defined Terms. For purposes of this Section 2.20, the term “Lender” includes any Issuing Bank and the term “applicable law” includes FATCA.
(b) Payments Free of Taxes. Any and all payments by or on account of any obligation of any Credit Party under any Credit Document shall be made without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Credit Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(c) Payment of Other Taxes by Credit Parties. The Credit Parties shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(d) Indemnification by Credit Parties. The Credit Parties shall jointly and severally indemnify each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to Borrower by a Lender (with a copy to Administrative Agent), or by Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. Notwithstanding the foregoing, no Recipient shall be entitled to any indemnification or reimbursement pursuant to this Section to the extent such Recipient has not made demand therefore (as set forth above) within one year after the payment of the Tax giving rise to such entitlement or, if later, such Recipient having knowledge of such Tax being applicable.
(e) Indemnification by the Lenders. Each Lender shall severally indemnify Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Credit Party has not already indemnified Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Credit
64
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.6(g) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by Administrative Agent in connection with any Credit Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Credit Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this Section 2.20(e).
(f) Evidence of Payments. As soon as practicable after any payment of Taxes by any Credit Party to a Governmental Authority pursuant to this Section 2.20, such Credit Party shall deliver to Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to Administrative Agent.
(g) Status of Lenders. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to Borrower and Administrative Agent (and, if requested, any other Credit Party), at the time or times reasonably requested by Borrower or Administrative Agent, such properly completed and executed documentation reasonably requested by a Credit Party or Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by a Credit Party or Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by a Credit Party or Administrative Agent as will enable a Credit Party or Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.20(g)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that Borrower is a U.S. Borrower,
(A) any Lender that is a U.S. Person shall deliver to Borrower and Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrower and Administrative Agent (in such number of copies as shall be requested by
65
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or Administrative Agent), whichever of the following is applicable:
(i) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Credit Document, executed originals of IRS Form W-8BEN or W-8BEN-E (or applicable successor form) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Credit Document, IRS Form W-8BEN or W-8BEN-E (or applicable successor form) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(ii) executed originals of IRS Form W-8ECI;
(iii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Internal Revenue Code, (x) a certificate substantially in the form of Exhibit J-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, a “10 percent shareholder” of Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Internal Revenue Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of IRS Form W-8BEN or W-8BEN-E (or applicable successor form); or
(iv) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E (or applicable successor form), a U.S. Tax Compliance Certificate substantially in the form of Exhibit J-2 or Exhibit J-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit J-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrower and Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit Borrower or Administrative Agent to determine the withholding or deduction required to be made; and
66
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
(D) if a payment made to a Lender under any Credit Document would be subject to withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Lender shall deliver to Borrower and Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by Borrower or Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by Borrower or Administrative Agent as may be necessary for Borrower and Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the Original Closing Date.
Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify Borrower and Administrative Agent in writing of its legal inability to do so.
(h) Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.20 (including by the payment of additional amounts pursuant to this Section 2.20), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 2.20 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this Section 2.20(h) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 2.20(h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 2.20(h) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This Section 2.20(h) shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(i) Survival. Each party’s obligations under this Section 2.20 shall survive the resignation or replacement of Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Credit Document.
67
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
2.21. Obligation to Mitigate. Each Lender (which term shall include Issuing Bank for purposes of this Section 2.21) agrees that, as promptly as practicable after the officer of such Lender responsible for administering its Loans or Letters of Credit, as the case may be, becomes aware of the occurrence of an event or the existence of a condition that would cause such Lender to become an Affected Lender or that would entitle such Lender to receive payments under Section 2.18, 2.19 or 2.20, it will, to the extent not inconsistent with the internal policies of such Lender and any corporation controlling such Lender and any applicable legal or regulatory restrictions, use reasonable efforts to (a) make, issue, fund or maintain its Credit Extensions, including any Affected Loans, through another office of such Lender, or (b) take such other measures as such Lender may deem reasonable, if as a result thereof the circumstances which would cause such Lender to be an Affected Lender would cease to exist or the additional amounts which would otherwise be required to be paid to such Lender pursuant to Section 2.18, 2.19 or 2.20 would be materially reduced and if, as determined by such Lender in its sole discretion, the making, issuing, funding or maintaining of such Revolving Commitments, Loans or Letters of Credit through such other office or in accordance with such other measures, as the case may be, would not otherwise adversely affect such Revolving Commitments, Loans or Letters of Credit or the interests of such Lender or any corporation controlling such Lender; provided, such Lender will not be obligated to utilize such other office pursuant to this Section 2.21 unless the Borrower agrees to pay all incremental expenses incurred by such Lender as a result of utilizing such other office as described above. A certificate as to the amount of any such expenses payable by the Borrower pursuant to this Section 2.21 (setting forth in reasonable detail the basis for requesting such amount) submitted by such Lender to the Borrower (with a copy to Administrative Agent) shall be conclusive absent manifest error. Notwithstanding anything in Section 2.18, 2.19 or 2.20 to the contrary, the Borrower shall not be required to compensate a Lender pursuant to such Sections for any amount incurred or reductions suffered more than one hundred and eighty (180) days prior to the date that such Lender obtains actual knowledge of the event that gives rise to such claim (except that, if the change giving rise to such claim is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof).
2.22. Defaulting Lenders.
(a) Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:
(i) Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 10.5 and in the definition of “Requisite Lenders”.
(ii) Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 8 or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.4 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the
68
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the Issuing Bank or Swing Line Lender hereunder; third, to Cash Collateralize the Issuing Bank’s Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.25; fourth, as the Borrower may request (so long as no Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize the Issuing Bank’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.25; sixth, to the payment of any amounts owing to the Lenders, the Issuing Bank or Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Bank or the Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Event of Default has occurred and is continuing, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Letter of Credit reimbursement obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 3.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Letter of Credit Usage owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Letter of Credit Usage owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letter of Credit Usage and Swing Line Loans are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effect to Section 2.22(a)(iv). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.22(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(iii) Certain Fees.
(A) No Defaulting Lender shall be entitled to receive any fee payable under Section 2.11(a)(i) for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).
(B) Each Defaulting Lender shall be entitled to receive letter of credit fees payable under Section 2.11(a)(ii) for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Pro Rata Share of the stated
69
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.24.
(C) With respect to any fee payable under Section 2.11(a)(i) or Section 2.11(a)(ii) not required to be paid to any Defaulting Lender pursuant to clause (A) or (B) above, the Borrower shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such De-faulting Lender with respect to such Defaulting Lender’s participation in Letter of Credit Usage or Swing Line Loans that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to the Issuing Bank and Swing Line Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such Issuing Bank’s or Swing Line Lender’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.
(iv) Reallocation of Pro Rata Shares to Reduce Fronting Exposure. All or any part of such Defaulting Lender’s participation in Letter of Credit Usage and Swing Line Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Shares (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that (x) the conditions set forth in Section 3.2 are satisfied at the time of such reallocation (and, unless the Borrower shall have otherwise notified the Administrative Agent at such time, the Borrower shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (y) such reallocation does not cause the Utilization of Revolving Commitments of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Commitment. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.
(v) Cash Collateral, Repayment of Swing Line Loans. If the real-location described in clause (a)(iv) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under applicable Law, (x) first, prepay Swing Line Loans in an amount equal to the Swing Line Lenders’ Fronting Exposure and (y) second, Cash Collateralize the Issuing Bank’s Fronting Exposure in accordance with the procedures set forth in Section 2.24.
(b) Defaulting Lender Cure. If the Borrower, the Administrative Agent, Swing Line Lender and the Issuing Bank agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to be held on a pro rata basis by the Lenders in accordance with their Pro Rata Shares (without giving effect to Section 2.22(a)
70
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
(iv)), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
2.23. Removal or Replacement of a Lender. Anything contained herein to the contrary notwithstanding, in the event that: (a) (i) any Lender (an “Increased‑Cost Lender”) shall give notice to the Borrower that such Lender is an Affected Lender or that such Lender is entitled to receive payments under Section 2.18, 2.19 or 2.20, (ii) the circumstances which have caused such Lender to be an Affected Lender or which entitle such Lender to receive such payments shall remain in effect, and (iii) such Lender shall fail to withdraw such notice within five Business Days after the Borrower’ request for such withdrawal; or (b) (i) any Lender shall be a Defaulting Lender (and shall continue to be on the date of the Borrower’s notice referred to below) and (ii) such Defaulting Lender shall fail to cure the default as a result of which it has become a Defaulting Lender within five Business Days after the Borrower’s request that it cure such default; or (c) in connection with any proposed amendment, modification, termination, waiver or consent with respect to any of the provisions hereof as contemplated by Section 10.5(b), the consent of Requisite Lenders shall have been obtained but the consent of one or more of such other Lenders (each a “Non‑Consenting Lender”) whose consent is required shall not have been obtained; then, with respect to each such Increased‑Cost Lender, Defaulting Lender or Non‑Consenting Lender (the “Terminated Lender”), the Borrower may, by giving written notice to Administrative Agent and any Terminated Lender of their election to do so, elect to cause such Terminated Lender (and such Terminated Lender hereby irrevocably agrees) to assign its outstanding Loans and its Revolving Commitments, if any, in full to one or more Eligible Assignees (each a “Replacement Lender”) in accordance with the provisions of Section 10.6 and the Borrower shall pay the fees, if any, payable thereunder in connection with any such assignment from an Increased-Cost Lender or a Non-Consenting Lender (and no fees shall be payable in connection with any such assignment from a Defaulting Lender); provided, (1) on the date of such assignment, the Replacement Lender shall pay to Terminated Lender an amount equal to the sum of (A) an amount equal to the principal of, and all accrued interest on, all outstanding Loans of the Terminated Lender, (B) an amount equal to all unreimbursed drawings under Letters of Credit that have been funded by such Terminated Lender, together with all then unpaid interest with respect thereto at such time and (C) an amount equal to all accrued, but theretofore unpaid fees owing to such Terminated Lender pursuant to Section 2.11; (2) on the date of such assignment, the Borrower shall pay any amounts payable to such Terminated Lender pursuant to Section 2.18(c), 2.19 or 2.20 or otherwise as if it were a prepayment and (3) in the event such Terminated Lender is a Non‑Consenting Lender, each Replacement Lender shall consent, at the time of such assignment, to each matter in respect of which such Terminated Lender was a Non‑Consenting Lender; provided, the Borrower may not make such election with respect to any Terminated Lender that is also an Issuing Bank unless, prior to the effectiveness of such election, arrangements reasonably satisfactory to such Issuing Bank (including (x) the furnishing of a back-up standby letter of credit in form and substance, and issued by an issuer reasonably satisfactory to such Issuing Bank or (y) Cash Collateralizing the face amount of all Letters of Credit of such Issuing Bank in an amount equal to the Minimum Collateral Amount for such Letters of Credit) have been
71
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
made with respect to each outstanding Letter of Credit issued by such Issuing Bank (or such outstanding Letter of Credit has been cancelled). Upon the prepayment of all amounts owing to any Terminated Lender and the termination of such Terminated Lender’s Revolving Commitments, if any, such Terminated Lender shall no longer constitute a “Lender” for purposes hereof; provided, any rights of such Terminated Lender to indemnification hereunder shall survive as to such Terminated Lender. Each Lender agrees that if the Borrower exercises its option hereunder to cause an assignment by such Lender as a Terminated Lender, such Lender shall, promptly after receipt of written notice of such election, execute and deliver all documentation necessary to effectuate such assignment in accordance with Section 10.6. In the event that a Lender does not comply with the requirements of the immediately preceding sentence within one Business Day after receipt of such notice, each Lender hereby authorizes and directs Administrative Agent to execute and deliver such documentation as may be required to give effect to an assignment in accordance with Section 10.6 on behalf of a Terminated Lender and any such documentation so executed by the Administrative Agent shall be effective for purposes of documenting an assignment pursuant to Section 10.6.
2.24. Incremental Facilities.
(a) The Borrower, by written notice to Administrative Agent and the Lead Arranger on one or more occasions prior to the Revolving Commitment Termination Date, may elect to request an increase to the existing Revolving Commitments (any such increase, the “New Revolving Loan Commitments”), by an amount that would result in all Revolving Commitments (both existing and New Revolving Loan Commitments) not exceeding $600,000,000 in the aggregate (each such amount in addition to the Revolving Commitments as of the Amendment and Restatement Date, a “Facility Increase” and the maximum aggregate increase, the “Maximum Increase Amount”) and not less than $25,000,000 per request (or such lesser amount which shall be approved by Administrative Agent and the Lead Arranger or such lesser amount that shall constitute the difference between the Maximum Increase Amount and all such New Revolving Loan Commitments obtained prior to such date), and integral multiples of $10,000,000 in excess of that amount. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Revolving Loan Commitments shall be effective, which shall be a date not less than 10 Business Days, nor more than 30 Business Days after the date on which such notice is delivered to Administrative Agent and Lead Arranger and (B) the identity of each Lender or other Person that is an Eligible Assignee (each, a “New Revolving Loan Lender”) to whom the Borrower proposes any portion of such New Revolving Loan Commitments be allocated and the amounts of such allocations; provided that any Lender approached to provide all or a portion of the New Revolving Loan Commitments may elect or decline, in its sole discretion, to provide a New Revolving Loan Commitment.
(b) Administrative Agent and Lead Arranger (in such capacity, the “Facility Increase Arrangers”), unless any of them separately waives such right, will manage all aspects of the syndication of the proposed New Revolving Loan Commitments, including identifying each New Revolving Loan Lender to whom any portion of the New Revolving Loan Commitments shall be allocated, the timing of all offers to Lenders and other Eligible Assignees and the acceptance of commitments, the amounts offered and the compensation provided; provided, that (i) the Facility Increase Arrangers will consult with the Borrower with respect to the syndication
72
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
of the proposed New Revolving Loan Commitments, (ii) any allocation to any Eligible Assignee that is not a Lender, Affiliate of a Lender or a Related Fund shall be subject to the consent of the Borrower and Administrative Agent (in each case not to be unreasonably withheld or delayed), (iii) in the event the Facility Increase Arrangers are unable to fully syndicate the proposed Facility Increase by the date which is 5 Business Days prior to the applicable Increased Amount Date, the Borrower may identify Persons who are Eligible Assignees to whom the Facility Increase Arrangers shall allocate any unsyndicated portion of the Facility Increase, subject to Administrative Agent’s consent right as set forth in subclause (ii) above, and (iv) in the event the Borrower is able to identify Persons who are Eligible Assignees and who are willing to commit to all or a portion of the Facility Increase for compensation that is no greater than the compensation required by the Persons identified by the Facility Increase Arrangers, the Facility Increase Arrangers shall allocate such portion of the Facility Increase to such Persons identified by the Borrower, subject to Administrative Agent’s consent right as set forth in subclause (ii) above. Subject to the immediately preceding sentence, the Facility Increase Arrangers and each Lender shall have the ongoing right to sell, assign, syndicate, participate, or transfer all or a portion of its Commitment or Loans owing to it or other Obligations to one or more investors as otherwise provided in Section 10.6. Without limitation on the Facility Increase Arrangers’ rights as set forth herein, in the event there are Lenders and Eligible Assignees that have committed to New Revolving Loan Commitments in excess of the maximum amount requested (or permitted), then the Facility Increase Arrangers shall have the right to allocate such commitments, first to Lenders and then to Eligible Assignees, on whatever basis the Facility Increase Arrangers determine is appropriate (except that the Facility Increase Arrangers will consult with the Borrower with respect to such allocations).
(c) Such New Revolving Loan Commitments shall become effective as of such Increased Amount Date, subject to the satisfaction of each of the following conditions precedent, as determined by Administrative Agent in its good faith judgment:
(i) no Event of Default shall have occurred and be continuing on such Increased Amount Date before or after giving effect to such New Revolving Loan Commitments;
(ii) as of such Increased Amount Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects made (or in the case of any representation, warranty or certification that is qualified as to “materiality,” “Material Adverse Effect” or similar language, shall not be incorrect in any respect as of the date made or deemed made) on and as of such Increased Amount Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects made (or in the case of any representation, warranty or certification that is qualified as to “materiality,” “Material Adverse Effect” or similar language, incorrect in any respect as of the date made or deemed made) on and as of such earlier date;
73
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
(iii) the Parent Guarantor shall be in pro forma compliance with each of the covenants set forth in Section 6.7 as of the last day of the most recently ended Fiscal Quarter after giving effect to such New Revolving Loan Commitments;
(iv) the New Revolving Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the New Revolving Loan Lenders and Administrative Agent, each of which shall be recorded in the Register, and each New Revolving Loan Lender shall be subject to the requirements set forth in Section 2.20;
(v) the Borrower shall make any payments required pursuant to Section 2.18(c) in connection with the New Revolving Loan Commitments;
(vi) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction;
(vii) as requested by Administrative Agent, the Credit Parties shall have acknowledged and ratified that their obligations under the applicable Credit Documents remain in full force and effect, and continue to guaranty and secure the Obligations, as modified by the New Revolving Loan Commitments and the implementation of the Facility Increase; and
(viii) in connection with the making of any New Revolving Loan Commitments, the Borrower shall have paid all reasonable and documented costs and expenses incurred by Administrative Agent in connection with the Facility Increase.
(d) On any Increased Amount Date on which New Revolving Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders shall assign to each of the New Revolving Loan Lenders, and each of the New Revolving Loan Lenders shall purchase from each of the Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding, including participations in Swing Line Loans and Letter of Credit Usage on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such interests in the Revolving Loans will be held by existing Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Loan Commitments to the Revolving Commitments and the Administrative Agent shall record such adjustments as necessary to reflect such reallocation, (b) each New Revolving Loan Commitment shall be deemed for all purposes a Revolving Commitment and each loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Loan Commitment and all matters relating thereto.
(e) Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (y) the New Revolving Loan Commitments and the New Revolving Loan Lenders and (z) in the case of each notice to
74
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
any Lender, the respective interests in such Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section 2.24.
(f) The terms and provisions of the New Revolving Loans shall be identical to the Revolving Loans. Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of Administrative Agent and Lead Arranger to effect the provision of this Section 2.24.
2.25. Cash Collateral.
(a) Certain Credit Support Events. If (i) the Issuing Bank has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an extension of credit which has not been reimbursed in accordance herewith or refinanced as a borrowing of a Revolving Loan, (ii) as of the Revolving Commitment Termination Date, any L/C Obligation for any reason remains outstanding, (iii) the Borrower shall be required to provide Cash Collateral pursuant to Section 8, or (iv) there shall exist a Defaulting Lender, the Borrower shall promptly (in the case of clause (iii) above) or within one Business Day (in all other cases), following any request by the Administrative Agent or the Issuing Bank, provide Cash Collateral in an amount not less than the applicable Minimum Collateral Amount (determined in the case of Cash Collateral provided pursuant to clause (iv) above, after giving effect to Section 2.22(a)(iv) and any Cash Collateral provided by the Defaulting Lender). If at any time the Administrative Agent determines that any funds held as Cash Collateral are subject to any right or claim of any Person other than the Administrative Agent or that the total amount of such funds is less than the aggregate Outstanding Amount of all L/C Obligations, the Borrower will, forthwith upon demand by the Administrative Agent, pay to the Administrative Agent, as additional funds to be deposited as Cash Collateral, an amount equal to the excess of (x) such aggregate Outstanding Amount over (y) the total amount of funds, if any, then held as Cash Collateral that the Administrative Agent determines to be free and clear of any such right and claim. Upon the drawing of any Letter of Credit for which funds are on deposit as Cash Collateral, such funds shall be applied, to the extent permitted under applicable Laws, to reimburse the Issuing Bank.
(b) Grant of Security Interest. The Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the Secured Parties, and agrees to maintain, a first priority security interest in all such cash, deposit accounts and all balances therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be applied pursuant to Section 2.25(c). If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent or the Issuing Bank as herein provided, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Borrower will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency. All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit accounts subject to the control of the Administrative
75
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
Agent. The Borrower shall pay on demand therefor from time to time all customary account opening, activity and other administrative fees and charges in connection with the maintenance and disbursement of Cash Collateral.
(c) Application. Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided in respect of Letters of Credit or Swing Line Loans shall be held and applied to the satisfaction of the specific L/C Obligations, Swing Line Loans, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may be provided for herein.
(d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or to secure other obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following compliance with Section 2.23)) or (ii) the determination by the Administrative Agent and the L/C Issuer that there exists excess Cash Collateral; provided, however, the Person providing Cash Collateral and the Issuing Bank may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.
2.26. Borrowing Base Updates. The Credit Parties may add new CDO Bonds, Unencumbered Loans and/or Real Estate Assets to the Borrowing Base by identifying such new CDO Bonds, Unencumbered Loans and/or Real Estate Assets for purposes of Schedule 1.1(a) in any Borrowing Base Certificate (which such CDO Bonds, Unencumbered Loans and/or Real Estate Assets, subject to the conditions set forth below, will thereafter be deemed to be included in the Borrowing Base and Schedule 1.1(a) shall be deemed to automatically be supplemented to include such CDO Bonds, Unencumbered Loans and/or Real Estate Assets), so long as (i) such new CDO Bonds and/or Unencumbered Loans satisfy clauses (A) and (B) to the proviso of the definition of “Borrowing Base Asset” and would not cause any of the conditions set forth in the proviso to the definition of “Borrowing Base Value” to fail to be satisfied, (ii) in the case of a Real Estate Asset, the Borrower has satisfied each of the requirements in the definition of “Real Estate Asset Eligibility Criteria” and (iii) the Borrower delivers to Administrative Agent an updated Borrowing Base Certificate. For the avoidance of doubt, the Industrial Portfolio Interests that may at any time be included in the Borrowing Base are limited to those Industrial Portfolio Interests identified on Schedule 1.1(a) on the Amendment and Restatement Date.
SECTION 3. CONDITIONS PRECEDENT
3.1. Amendment and Restatement Date. The effectiveness of the amendment and restatement of the Original Credit Agreement by this Agreement and the obligation of each Lender or Issuing Bank, as applicable, to make a Credit Extension on the Amendment and Restatement Date is subject to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions on or before the Amendment and Restatement Date:
76
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
(a) Credit Documents. Administrative Agent and Lead Arranger shall have received one copy of each Credit Document, originally executed and delivered by each applicable Credit Party.
(b) Organizational Documents; Incumbency. Administrative Agent and Lead Arranger shall have received, in respect of each Credit Party, (i) copies of each Organizational Document as Administrative Agent shall reasonably request, and, to the extent applicable, certified as of the Amendment and Restatement Date or a recent date prior thereto by the appropriate Governmental Authority or a certificate of an Authorized Officer certifying that there have been no changes to such Organizational Documents since the Original Closing Date through and including the Amendment and Restatement Date, as applicable; (ii) signature and incumbency certificates of the officers of such Credit Party; (iii) copies of resolutions of the Board of Directors or similar governing body of such Credit Party approving and authorizing the execution, delivery and performance of this Agreement and the other Credit Documents to which it is a party as of the Amendment and Restatement Date, certified as of the Amendment and Restatement Date by its secretary or an assistant secretary as being in full force and effect without modification or amendment; and (iv) a good standing certificate from the applicable Governmental Authority of such Credit Party’s jurisdiction of incorporation, organization or formation, each dated the Amendment and Restatement Date or a recent date prior thereto.
(c) Personal Property Collateral. In order to continue and create in favor of Collateral Agent, for the benefit of Secured Parties, a valid, perfected First Priority security interest in the Equity Interests listed on Schedule 3.1(c) (the “Amendment and Restatement Date Pledged Entities”), each Pledgor shall have (i) delivered to Collateral Agent a fully executed counterpart of the Pledge Agreement and authorized the filing of UCC financing statements describing such Amendment and Restatement Date Pledged Entities and delivered any physical certificates representing such Amendment and Restatement Date Pledged Entities as provided therein and (ii) executed and delivered or caused to be executed and delivered any other documents and instruments required to perfect Collateral Agent’s First Priority security interests in the Collateral to the extent required by the Credit Documents.
(d) Opinions of Counsel to Credit Parties. Agents and Lenders and their respective counsel shall have received customary written opinions of Xxxxxxxx Chance US LLP, Xxxxxxx LLP and Hunton & Xxxxxxxx LLP, in each case, counsel for Credit Parties, as to such matters as Administrative Agent may reasonably request, dated as of the Amendment and Restatement Date (and each Credit Party hereby instructs such counsel to deliver such opinions to Agents and Lenders), which opinions shall be addressed to Agents and Lenders.
(e) Expenses. Lenders, Administrative Agent and Lead Arranger shall have received reimbursement from the Borrower for all expenses required to be paid by the Borrower under the Credit Documents for which invoices have been presented at least two Business Days prior to the Amendment and Restatement Date.
(f) Solvency Certificate. On the Amendment and Restatement Date, Administrative Agent and Lead Arranger shall have received a Solvency Certificate from the Borrower on behalf of all Credit Parties.
77
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
(g) Amendment and Restatement Date Certificate. The Borrower shall have delivered to Administrative Agent an originally executed Amendment and Restatement Date Certificate, together with all attachments thereto.
(h) Completion of Proceedings. All partnership, corporate and other proceedings required to authorize the transactions contemplated hereby shall have been completed, and Administrative Agent and its counsel shall have received copies of all documents incidental thereto as Administrative Agent may reasonably request.
(i) PATRIOT Act. Administrative Agent and Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001) the “PATRIOT Act”); provided such information shall have been requested at least five (5) days prior to the Amendment and Restatement Date.
(j) UCC Lien, Judgment and Tax Lien Search Results. Administrative Agent shall have received the results of recent UCC Lien, judgment and tax Lien searches in each relevant jurisdiction with respect to each of the Credit Parties, and such search results shall reveal no Liens on any of the assets of the Credit Parties, except for Permitted Liens or Liens to be discharged on or prior to the Amendment and Restatement Date.
(k) No Litigation. There shall not exist any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(l) No Default. No Default or Event of Default shall then be continuing.
(m) No Material Adverse Effect. No Material Adverse Effect shall have occurred since December 31, 2013.
(n) Repayment of Outstanding Loans. All outstanding Loans under the Original Credit Agreement shall have been repaid in full (it being understood and agreed by the parties hereto that any amounts received by Administrative Agent as a result of this Section 3.1(o) may, in lieu of being paid to the Lenders pursuant to Section 2, be retained by Administrative Agent and returned to the Borrower as a Credit Extension hereunder to the extent the Borrower has complied with the requirements of Section 3.2 below with respect to the re-borrowing of such funds on the Amendment and Restatement Date). Notwithstanding anything in the Original Credit Agreement or this Agreement to the contrary, none of the Parent Guarantor, the Borrower nor any other Guarantor shall be liable for any losses, expenses or liabilities that would otherwise be payable by the Credit Parties pursuant to Section 2.18(c) of the Original Credit Agreement and/or Section 2.18(c) of this Agreement in connection with the repayment contemplated by this Section 3.1(n) on the Amendment and Restatement Date (and each Lender by its execution of this Agreement hereby expressly waives any such payment obligation by the Credit Parties).
78
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
(o) Borrowing Base Certificate. The Borrower shall have delivered a Borrowing Base Certificate duly certified by the chief executive officer, president, chief financial officer, chief investment and operating officer, executive vice president, general counsel, chief accounting officer, treasurer or controller of the Borrower.
3.2. Conditions to Each Credit Extension.
(a) Conditions Precedent. The obligation of each Lender to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including the Amendment and Restatement Date, are subject to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions precedent:
(i) Administrative Agent shall have received a fully executed and delivered Funding Notice or Issuance Notice, as the case may be;
(ii) after making the Credit Extensions requested on such Credit Date, (x) the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect and (y) the ratio of the Borrowing Base Value (as calculated in the most recent Borrowing Base Certificate required to be delivered pursuant to Section 5.1(i) or the most recently delivered Borrowing Base Certificate delivered pursuant to Section 2.26) to the Total Utilization of Revolving Commitments shall not be less than 1.50:1.00;
(iii) as of such Credit Date, not less than 40% of the Borrowing Base Value (as calculated in the most recent Borrowing Base Certificate required to be delivered pursuant to Section 5.1(i) or the most recently delivered Borrowing Base Certificate delivered pursuant to Section 2.26) shall be attributable, collectively, to Unencumbered Loans and Borrowing Base Eligible Real Estate Assets;
(iv) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects made (or in the case of any representation, warranty or certification that is qualified as to “materiality,” “Material Adverse Effect” or similar language, shall not be incorrect in any respect as of the date made or deemed made) on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects made (or in the case of any representation, warranty or certification that is qualified as to “materiality,” “Material Adverse Effect” or similar language, incorrect in any respect as of the date made or deemed made) on and as of such earlier date;
(v) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(vi) as of such Credit Date, the aggregate net equity value (in each case, determined as of the date the applicable Non-Recourse Indebtedness was incurred by such
79
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
Subsidiary) of all Subsidiaries that have become Turn-Over Subsidiaries after the Original Closing Date does not exceed $300,000,000; and
(vii) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit;
provided, that the conditions set forth in clauses (iv) and (v) above shall not apply in the case of extensions, renewals or amendments of Letters of Credit not resulting in an increase in the face amount thereof.
(b) Notices. Any Notice shall be executed by an Authorized Officer of the Borrower in a writing delivered to Administrative Agent. In lieu of delivering a Notice, the Borrower may give Administrative Agent telephonic notice by the required time of any proposed borrowing, conversion or continuation of any Loan or issuance of a Letter of Credit, as the case may be; provided each such notice shall be promptly confirmed in writing by delivery of the applicable Notice to Administrative Agent on or before the close of business on the date that the telephonic notice is given. In the event of a discrepancy between the telephone notice and the written Notice, the written Notice shall govern. In the case of any Notice that is irrevocable once given, if the Borrower provides telephonic notice in lieu thereof, such telephonic notice shall also be irrevocable once given. Neither Administrative Agent nor any Lender shall incur any liability to the Borrower in acting upon any telephonic notice referred to above that Administrative Agent believes in good faith to have been given by an Authorized Officer of the Borrower or for otherwise acting in good faith, including, without limitation, as a result of a discrepancy between a telephonic notice and a subsequent written Notice.
SECTION 4. REPRESENTATIONS AND WARRANTIES
In order to induce Agents, Lenders and Issuing Bank to enter into this Agreement and to make each Credit Extension to be made thereby, each Credit Party represents and warrants to each Agent, Lender and Issuing Bank, on the Original Closing Date, the Amendment and Restatement Date and on each Credit Date (other than the extension, renewal or amendment of Letters of Credit not resulting in an increase in the face amount thereof), as follows:
4.1. Organization; Requisite Power and Authority; Qualification. Each of the Parent Guarantor and its Subsidiaries (a) is duly organized and validly existing under the laws of its jurisdiction of organization except as the result of any transaction permitted under Section 6.8(g) or (l), (b) has all requisite power and authority to own and operate its properties, to carry on its business as now conducted, to enter into the Credit Documents to which it is a party and to carry out the transactions contemplated thereby, except where the failure of such Person (other than the Credit Parties with respect to the Credit Documents) to do so has not had, and could not reasonably be expected to have, a Material Adverse Effect, and (c) is qualified to do business and in good standing in its jurisdiction of organization and every jurisdiction where necessary to carry out its
80
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
business and operations, except in jurisdictions where the failure to be so qualified or in good standing has not had, and could not be reasonably expected to have, a Material Adverse Effect.
4.2. Equity Interests and Ownership. The structure chart delivered by Borrower to the Administrative Agent on or around the Amendment and Restatement Date correctly sets forth the ownership interest of the Parent Guarantor and each of its Consolidated Subsidiaries in their respective Consolidated Subsidiaries and Non-Consolidated Entities as of the Amendment and Restatement Date. From and after the Amendment and Restatement Date, upon request by the Administrative Agent not more often than once per Fiscal Quarter, the Borrower shall deliver an updated structure chart that correctly sets forth the ownership interest of the Parent Guarantor and each of its Consolidated Subsidiaries in their respective Consolidated Subsidiaries and Non-Consolidated Entities; provided that any Consolidated Subsidiary or Non-Consolidated Entity that is sold, transferred or otherwise disposed of pursuant to an Asset Sale, or is merged, consolidated or amalgamated out of existence pursuant to a transaction, in each case permitted by Section 6.8 shall be presumptively deleted from such structure chart solely for purposes of this sentence.
4.3. Due Authorization. The execution, delivery and performance of the Credit Documents have been duly authorized by all necessary action on the part of each Credit Party that is a party thereto.
4.4. No Conflict. The execution, delivery and performance by the Credit Parties of the Credit Documents to which they are parties and the borrowing of the Loans, the issuances of Letters of Credit and the use of proceeds thereof do not and will not (a) violate (i) in any material respect any provision of any law or any governmental rule or regulation applicable to the Parent Guarantor or any of its Subsidiaries, (ii) any of the Organizational Documents of the Parent Guarantor or any of its Subsidiaries, or (iii) in any material respect any order, judgment or decree of any court or other agency of government binding on the Parent Guarantor or any of its Subsidiaries; (b) conflict in any material respect with, result in a material breach of or constitute (with due notice or lapse of time or both) a material default under any Material Contract or any Industrial Portfolio Interests Loan Document; (c) result in or require the creation or imposition of any Lien upon any of the properties or assets of the Parent Guarantor or any of its Subsidiaries (other than any Liens created under any of the Credit Documents in favor of Collateral Agent, on behalf of the Secured Parties, and/or Permitted Liens).
4.5. Governmental Consents. The execution, delivery and performance by the Credit Parties of the Credit Documents to which they are parties and the borrowing of the Loans, the issuances of Letters of Credit and the use of proceeds thereof do not and will not require any registration with, consent or approval of, or notice to, or other action to, with or by, any Governmental Authority except for (a) filings and recordings with respect to the Collateral to be made, or otherwise delivered to Collateral Agent for filing and/or recordation, as of the Amendment and Restatement Date, (b) any such approvals or consents the failure of which to obtain could not reasonably be expected to have a material adverse effect on any of the Collateral and (c) any other approvals or consents the failure of which to obtain could not reasonably be expected to have a Material Adverse Effect.
81
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
4.6. Binding Obligation. Each Credit Document has been duly executed and delivered by each Credit Party that is a party thereto and is the legally valid and binding obligation of such Credit Party, enforceable against such Credit Party in accordance with its respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability.
4.7. Historical Financial Statements. The Historical Financial Statements were prepared in all material respects in conformity with GAAP and fairly present, in all material respects, the financial position, on a consolidated basis, of the Persons described in such financial statements as at the respective dates thereof and the results of operations and cash flows, on a consolidated basis, of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year‑end adjustments.
4.8. Intentionally Omitted.
4.9. No Material Adverse Effect. Since December 31, 2013, no event, circumstance or change has occurred that has had, or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
4.10. Adverse Proceedings, Etc. There are no Adverse Proceedings that could reasonably be expected to have a Material Adverse Effect. Neither the Parent Guarantor nor any of its Subsidiaries is subject to or in material default with respect to any final judgments, writs, injunctions, decrees, rules or regulations of any Governmental Authority which could reasonably be expected to result, individually or in the aggregate, in an Event of Default under Section 8.1(h).
4.11. Payment of Taxes. Except as otherwise permitted under Section 5.3, all U.S. federal income and other material Tax returns and reports of the Parent Guarantor and its Subsidiaries required to be filed by any of them have been timely filed (taking into account any extension of the due date thereof), all such Tax returns are true and accurate in all material respects, and all material amounts of Taxes and all material assessments, fees and other material governmental charges upon the Parent Guarantor and its Subsidiaries and upon their respective properties, assets, income, businesses and franchises which are due and payable have been paid when due and payable unless such taxes, assessments, fees and charges are being contested by appropriate and timely proceedings in a Good Faith Contest.
4.12. Properties.
(a) Title. Except as set forth on Schedule 4.12, each of the Parent Guarantor and its Subsidiaries has (i) good, sufficient and legal title to (in the case of fee interests in real property), (ii) valid leasehold interests in (in the case of leasehold interests in real or personal property), (iii) valid licensed rights in (in the case of licensed interests in intellectual property) and (iv) good title to (in the case of all other personal property), (x) all of the Collateral and (y) all of their other respective properties and assets reflected in their respective Historical Financial Statements referred to in Section 4.7 and in the most recent financial statements delivered pursuant to Section
82
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
5.1, except in the case of this clause (y) where the failure to have such right, title, interest or licensed right could not reasonably be expected to have a Material Adverse Effect and, in each case of clauses (x) and (y), except for assets disposed of since the date of such financial statements in the ordinary course of business or as otherwise permitted under Section 6.8. Except as permitted by this Agreement, all such properties and assets are free and clear of Liens.
(b) Intellectual Property. Except as could not reasonably be expected to have a Material Adverse Effect, (i) each of the Parent Guarantor and its Subsidiaries owns, is licensed to use, or otherwise has the right to use, all intellectual property necessary for the conduct of its business as currently conducted, (ii) no claim has been asserted and is pending by any Person challenging or questioning the use of any intellectual property or the validity or effectiveness of any intellectual property owned or licensed by the Parent Guarantor and its Subsidiaries, nor does any of the Parent Guarantor or any of its Subsidiaries know of any valid basis for any such claim and (iii) the use of intellectual property necessary for the conduct of its business as currently conducted by each of the Parent Guarantor and its Subsidiaries does not infringe on the rights of any Person.
4.13. Environmental Matters. Neither the Parent Guarantor nor any of its Subsidiaries nor any of their respective Real Estate Assets are subject to any outstanding written order, consent decree or settlement agreement with any Person relating to any Environmental Law, any Environmental Claim, or any Hazardous Materials Activity that could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Neither the Parent Guarantor nor any of its Subsidiaries has received any letter or request for information under Section 104 of the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. § 9604) or any comparable state law that could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. To the best knowledge of the Credit Parties, there have been no conditions, occurrences, or Hazardous Materials Activities which could reasonably be expected to form the basis of an Environmental Claim against the Parent Guarantor or any of its Subsidiaries that could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Neither the Parent Guarantor nor any of its Subsidiaries nor, to any Credit Party’s knowledge, any predecessor of the Parent Guarantor or any of its Subsidiaries has filed any notice under any Environmental Law indicating past or present treatment of Hazardous Materials at any Facility, and none of the Parent Guarantor’s or any of its Subsidiaries’ operations involves the generation, transportation, treatment, storage or disposal of hazardous waste, as defined under 40 C.F.R. Parts 260‑270 or any state equivalent, except in each case as could not reasonably be expected to result in a violation of Environmental Laws. Compliance with all current Environmental Laws could not be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect. No event or condition has occurred or is occurring with respect to the Parent Guarantor or any of its Subsidiaries relating to any Environmental Law, any Release of Hazardous Materials, or any Hazardous Materials Activity which has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
4.14. No Defaults. Neither the Parent Guarantor nor any of its Subsidiaries is in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any of its Material Contracts, and no condition exists which, with the giving of notice
83
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
or the lapse of time or both, could constitute such a default, except where the consequences, direct or indirect, of such default or defaults, if any, could not reasonably be expected to have a Material Adverse Effect. No Default or Event of Default has occurred and is continuing.
4.15. Intentionally Omitted.
4.16. Governmental Regulation. Neither the Parent Guarantor nor any of its Subsidiaries is subject to regulation under the Investment Company Act of 1940 or under any other federal or state statute or regulation which may limit its ability to incur Indebtedness or which may otherwise render all or any portion of the Obligations unenforceable. Neither the Parent Guarantor nor any of its Subsidiaries is a “registered investment company” or a company “controlled” by a “registered investment company” or a “principal underwriter” of a “registered investment company” as such terms are defined in the Investment Company Act of 1940.
4.17. Employee Matters. Neither the Parent Guarantor nor any of its Subsidiaries is engaged in any unfair labor practice that could reasonably be expected to have a Material Adverse Effect. There is (a) no unfair labor practice complaint pending against the Parent Guarantor or any of its Subsidiaries before the National Labor Relations Board and no grievance or arbitration proceeding arising out of or under any collective bargaining agreement that is so pending against the Parent Guarantor or any of its Subsidiaries and (b) no strike or work stoppage in existence involving the Parent Guarantor or any of its Subsidiaries, except (with respect to any matter specified in clause (a), (b) above, either individually or in the aggregate) such as could not reasonably be expected to have a Material Adverse Effect.
4.18. Employee Benefit Plans. Except as could not reasonably be expected to have a Material Adverse Effect, (a) the Parent Guarantor, each of its Subsidiaries and each of their respective ERISA Affiliates are in compliance with all applicable provisions and requirements of applicable law, including, without limitation, ERISA and the Internal Revenue Code and the regulations and published interpretations thereunder with respect to each Employee Benefit Plan; (b) each Employee Benefit Plan which is intended to qualify under Section 401(a) of the Internal Revenue Code has received a favorable determination letter from the Internal Revenue Service indicating that such Employee Benefit Plan is so qualified, and each trust forming a part of any such Employee Benefit Plan that is intended to qualify for exemption from taxation under Section 501(a) of the Internal Revenue Code is so exempt; (c) no liability to the PBGC (other than required premium payments) has been or would reasonably be expected to be incurred by the Parent Guarantor, any of its Subsidiaries or any of their ERISA Affiliates; (d) no ERISA Event has occurred or is reasonably expected to occur; (e) the present value of the aggregate benefit liabilities under each Pension Plan sponsored, maintained or contributed to by the Parent Guarantor, any of its Subsidiaries or any of their ERISA Affiliates (determined as of the end of the most recent plan year on the basis of the actuarial assumptions specified for funding purposes in the most recent actuarial valuation for such Pension Plan), did not exceed the aggregate current value of the assets of such Pension Plan; (f) as of the most recent valuation date for each Multiemployer Plan for which the actuarial report is available, the potential liability of the Parent Guarantor, its Subsidiaries and their respective ERISA Affiliates for a complete withdrawal from such Multiemployer Plan (within the meaning of Section 4203 of ERISA), when aggregated with such potential liability for a complete withdrawal from all
84
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
Multiemployer Plans, is zero; and (g) the Parent Guarantor, each of its Subsidiaries and each of their ERISA Affiliates have complied with the requirements of Section 515 of ERISA with respect to each Multiemployer Plan and are not in “default” (as defined in Section 4219(c)(5) of ERISA) with respect to payments to a Multiemployer Plan.
4.19. Solvency. (i) The Parent Guarantor and its Subsidiaries, taken as a whole, and (ii) the Credit Parties, taken as a whole, in each case, are Solvent.
4.20. Security Documents.
(a) Pledge Agreement. The Pledge Agreement is effective to create in favor of Collateral Agent for the benefit of Secured Parties, legal, valid and enforceable Liens on, and security interests in, the Collateral (as defined in the Pledge Agreement) and (i) when financing statements and other filings in appropriate form are filed and (ii) upon the taking of possession by Collateral Agent of certificates, if any, representing the Collateral (as defined in the Pledge Agreement), the Liens created by the Pledge Agreement shall constitute fully perfected Liens on all right, title and interest of the Pledgors in the Collateral (as defined in the Pledge Agreement), in each case subject to no Liens other than Qualified Permitted Liens.
(b) Valid Liens. Each Collateral Document delivered pursuant to Section 5.9 will, upon execution and delivery thereof, be effective to create in favor of Collateral Agent, for the benefit of Secured Parties, legal, valid and enforceable Liens on, and security interests in, all of Credit Parties’ right, title and interest in and to the Collateral thereunder, and (i) when all appropriate filings or recordings are made in the appropriate offices as may be required under applicable law and (ii) upon the taking of possession by Collateral Agent of certificates, if any, representing the Collateral (as defined in the Pledge Agreement), such Collateral Document will constitute fully perfected Liens on, and security interests in, all right, title and interest of Credit Parties in such Collateral, in each case subject to no Liens other than Qualified Permitted Liens.
4.21. Compliance with Statutes, Etc. Each of the Parent Guarantor and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any Real Estate Asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such Real Estate Asset or the operations of the Parent Guarantor or any of its Subsidiaries), except such non‑compliance that could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
4.22. Disclosure. No representation or warranty of any Credit Party contained in any Credit Document or in any other documents, certificates or written statements (other than any projections, pro forma financial information and information of a general economic or industry-specific nature) furnished to any Agent or Lender by or on behalf of the Parent Guarantor or any of its Subsidiaries for use in connection with the transactions contemplated hereby, when taken as a whole, contained at the time furnished any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements contained herein or therein not materially
85
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
misleading in light of the circumstances in which the same were made. Any projections and pro forma financial information contained in such materials are based upon good faith estimates and assumptions believed by the Parent Guarantor to be reasonable at the time made, it being recognized by Lenders that such projections as to future events are not to be viewed as facts and that actual results during the period or periods covered by any such projections may differ from the projected results and such differences may be material.
4.23. PATRIOT Act. To the extent applicable, each Credit Party is in compliance, in all material respects, with (a) the Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto, and (b) the PATRIOT Act.
4.24. Sanctioned Persons; Anti-Corruption Laws. Neither the Parent Guarantor, nor any of its Subsidiaries, nor, to the knowledge of the Parent Guarantor and its Subsidiaries, any director, officer, employee or agent thereof, is an individual or entity that is, or is owned or controlled by any individual or entity that is (i) currently the subject or target of any Sanctions or (ii) located, organized or resident in a Designated Jurisdiction. The Parent Guarantor and its Subsidiaries have conducted their businesses in compliance in all material respects with applicable anti-corruption laws and have instituted and maintained policies and procedures designed to promote and achieve compliance with such laws.
4.25. Use of Proceeds. The proceeds of the Loans shall be used for purposes permitted by Section 2.6. The proceeds of the Loans shall not be used (A) for the purpose of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person, in violation of applicable anti-corruption laws or anti-money laundering laws or (B) for the purpose of making any payment that violates any Sanctions.
4.26. REIT Status. Beginning with its taxable year ending December 31, 2014, with respect to the Parent Guarantor, (a) such entity has been organized and operated in conformity with the requirements for qualification and taxation as a REIT under the Internal Revenue Code, (b) such entity’s actual method of operation through the Amendment and Restatement Date has enabled it to meet, and its proposed method of operation will enable it to continue to meet, the requirements for qualification and taxation as a REIT under the Internal Revenue Code, and (c) such entity has not revoked its election to be taxed as a REIT and such election has not been terminated. The shares of common stock of the Parent Guarantor are listed on the New York Stock Exchange.
4.27. Insurance. The insurance coverages required by Section 5.5 have been obtained and are in effect.
SECTION 5. AFFIRMATIVE COVENANTS
86
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
Each Credit Party covenants and agrees that, so long as any Commitment is in effect and until all Obligations have been Paid in Full, each Credit Party shall perform, and shall cause each of its Subsidiaries to perform, all covenants in this Section 5.
5.1. Financial Statements and Other Reports. The Borrower will deliver to Administrative Agent (for further distribution to Lenders), which delivery may be made in accordance with Section 10.1(b):
(a) Quarterly Financial Statements. As soon as available, and in any event within forty-five (45) days after the end of each of the first three Fiscal Quarters of each Fiscal Year, commencing with the Fiscal Quarter ending September 30, 2014, the unaudited consolidated balance sheets of the Parent Guarantor and its Subsidiaries as at the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Parent Guarantor and its Subsidiaries for such Fiscal Quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, in each case, to the extent included in the copy of such financial statements that are filed with or furnished to the SEC by the Parent Guarantor, setting forth in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year, in reasonable detail, together with a Financial Officer Certification and a Narrative Report with respect thereto;
(b) Annual Financial Statements. As soon as available, and in any event within ninety (90) days after the end of each Fiscal Year, commencing with the Fiscal Year ended December 31, 2014, (i) the consolidated balance sheets of the Parent Guarantor and its Subsidiaries as at the end of such Fiscal Year and the related consolidated statements of income and cash flows of the Parent Guarantor and its Subsidiaries for such Fiscal Year, in each case, to the extent included in the copy of such financial statements that are filed with or furnished to the SEC by the Parent Guarantor, setting forth in comparative form the corresponding figures for the previous Fiscal Year, in reasonable detail, together with a Financial Officer Certification and a Narrative Report with respect thereto; and (ii) with respect to such consolidated financial statements a report thereon of Xxxxx Xxxxxxxx LLP, any other “Big Four” accounting firm selected by the Parent Guarantor, or any other independent certified public accountants of recognized national standing selected by the Parent Guarantor and reasonably satisfactory to Administrative Agent (which report and/or the accompanying financial statements shall be unqualified as to going concern and scope of audit, and shall state that such consolidated financial statements fairly present, in all material respects, the consolidated financial position of the Parent Guarantor and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated in conformity with GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such financial statements) and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards);
The financial statements filed with or furnished to the SEC by the Parent Guarantor (and which are available online) shall be deemed to have been provided by the Parent Guarantor pursuant to Sections 5.1(a) and (b).
87
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
(c) Compliance Certificate. Together with each delivery of financial statements of the Parent Guarantor and its Subsidiaries pursuant to Sections 5.1(a) and 5.1(b), a duly executed and completed Compliance Certificate (including (i) notices of any material damage, destruction or condemnation of any underlying asset of any Borrowing Base Asset and (ii) any change during the applicable Fiscal Quarter (w) in any Credit Party’s corporate name, (x) in any Credit Party’s identity or corporate structure, (y) in any Credit Party’s jurisdiction of organization or (z) in any Credit Party’s Federal Taxpayer Identification Number or state organizational identification number);
(d) Notice of Default. Promptly upon any Authorized Officer of the Borrower obtaining actual knowledge (i) of any condition or event that constitutes a Default or an Event of Default; (ii) the occurrence of any environmental event that has had or could reasonably be expected to have a Material Adverse Effect; or (iii) of the occurrence of any event or change that has had, either in any case or in the aggregate, a Material Adverse Effect, a certificate of an Authorized Officer specifying the nature and period of existence of such condition, event or change, and what action, if any, the Parent Guarantor or any of its Subsidiaries has taken, is taking and proposes to take with respect thereto;
(e) Notice of Litigation. Promptly upon any Authorized Officer of the Borrower obtaining actual knowledge of (i) any Adverse Proceeding not previously disclosed in writing by the Borrower to Lenders, or (ii) any development in any Adverse Proceeding that, in the case of either clause (i) or (ii), could be reasonably expected to have a Material Adverse Effect, written notice thereof together with such other non-privileged information as may be reasonably available to the Borrower to enable Lenders and their counsel to evaluate such matters;
(f) ERISA. (i) Promptly upon knowing or having reason to know of the occurrence of any ERISA Event that could reasonably be expected to result in a Material Adverse Effect, a written notice specifying the nature thereof, what action the Parent Guarantor, any of its Subsidiaries or any of their respective ERISA Affiliates has taken, is taking or proposes to take with respect thereto and, when known, any action taken or threatened by the Internal Revenue Service, the Department of Labor or the PBGC with respect thereto; and (ii) with reasonable promptness, copies of (1) each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed by the Parent Guarantor, any of its Subsidiaries or any of their respective ERISA Affiliates with the Internal Revenue Service with respect to each Pension Plan that could reasonably be expected to result in liability in excess of $5,000,000; and (2) all notices received by the Parent Guarantor, any of its Subsidiaries or any of their respective ERISA Affiliates from a Multiemployer Plan sponsor concerning an ERISA Event which would reasonably be expected to give rise to a Material Adverse Effect;
(g) Turn-Over Subsidiaries. Promptly following a Subsidiary becoming a Turn-Over Subsidiary, notice of such occurrence, including a statement of the net equity value of such Subsidiary as of the date of incurrence of the applicable Non-Recourse Indebtedness;
(h) [Intentionally Omitted];
88
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
(i) Borrowing Base Certificate. (A) On or prior to the date the Compliance Certificate is due with respect to a Fiscal Quarter pursuant to clause (c) above, a Borrowing Base Certificate, as at the end of the last month of such Fiscal Quarter and (B) a Borrowing Base Certificate on each Credit Date, as at such Credit Date;
(j) Compliance with Borrowing Base Asset Conditions. Promptly after obtaining actual knowledge of any condition or event which causes any Borrowing Base Asset to fail to qualify for inclusion in the Borrowing Base, notice to the Administrative Agent thereof;
(k) Other Information. Such other information and data with respect to the Parent Guarantor or any of its Subsidiaries as from time to time may be reasonably requested by Administrative Agent or any Lender (acting through Administrative Agent); and
(l) Certification of Public Information. The Borrower and each Lender acknowledge that certain of the Lenders may be Public Lenders and, if documents or notices required to be delivered pursuant to this Section 5.1 or otherwise are being distributed through IntraLinks/IntraAgency, SyndTrak or another relevant website or other information platform (the “Platform”), any document or notice that the Borrower has indicated contains Non-Public Information shall not be posted on that portion of the Platform designated for such Public Lenders. The Borrower agrees to clearly designate all information provided to Administrative Agent by or on behalf of the Parent Guarantor and its Subsidiaries which is suitable to make available to Public Lenders. If the Borrower has not indicated whether a document or notice delivered pursuant to this Section 5.1 contains Non-Public Information, Administrative Agent shall post such document or notice solely on that portion of the Platform designated for Lenders who wish to receive material non-public information with respect to the Parent Guarantor, its Subsidiaries and their securities.
5.2. Existence. Except as otherwise permitted under Section 6.8, each Credit Party shall, and shall cause each of its Material Subsidiaries (other than any Turn-Over Subsidiary) to, at all times preserve and keep in full force and effect its existence and all rights and franchises, licenses and permits material to its business; provided, no Credit Party (other than the Parent Guarantor and the Borrower with respect to their existence) or any of its Material Subsidiaries shall be required to preserve any such existence, right or franchise, licenses or permits if (a) such Person’s board of directors (or similar governing body) shall determine that the preservation thereof is no longer desirable in the conduct of the business of such Person, and that the loss thereof is not disadvantageous in any material respect to such Person or to Lenders or (b) solely in the case of rights, franchises, licenses and permits, the failure to maintain such could not reasonably be expected to have a Material Adverse Effect.
5.3. Payment of Taxes, Claims, and Obligations. Each Credit Party shall, and shall cause each of its Subsidiaries to, (a) other than with respect to obligations that upon becoming a Lien would not result in a Default under Section 6.2(b) or 6.2(c), pay and perform its material obligations (other than Indebtedness) in accordance with their terms, pay all material Taxes imposed upon it or any of its properties or assets or in respect of any of its income, businesses or franchises, and pay all claims (including claims for labor, services, materials and supplies), in each case prior to such sums becoming a Lien upon any of its properties or assets, unless, in each case, the applicable
89
Amended and Restated Credit and Guaranty Agreement
LA\4027402.11
LA\4027402.11
Credit Party has initiated and is maintaining a Good Faith Contest with respect to such matter; and (b) perform or comply with, as the case may be, all its Obligations in the manner specified in this Agreement and the other Credit Documents. No Credit Party will, nor will it permit any of its Subsidiaries to, file or consent to the filing of any consolidated income tax return with any Person (other than the Parent Guarantor or any of its Subsidiaries).
5.4. Maintenance and Operation of Properties. Except as otherwise permitted under Section 6.8, each Credit Party shall, and shall cause each of its Material Subsidiaries to, maintain or cause to be maintained in good repair, working order and condition in all material respects, as determined in the Borrower’s reasonable business judgment, ordinary wear and tear and casualty and condemnation excepted, all material properties used or useful in the business of the Parent Guarantor and its Material Subsidiaries and (i) from time to time will make or cause to be made all appropriate material repairs, renewals and replacements thereof as determined in the Borrower’s reasonable business judgment, and (ii) operate such properties in the ordinary course of business in all material respects. Notwithstanding the foregoing, a Turn-Over Subsidiary shall not be subject to the foregoing provisions: (i) after the consummation of a Non-Recourse Indebtedness Foreclosure; or (ii) prior to the consummation of a Non-Recourse Indebtedness Foreclosure, if (a) the conditions set forth in clauses (i), (iii), and (iv) of the definition of “Turn-Over Subsidiary” have been satisfied, and (b) the failure to comply with this Section 5.4 would not be reasonably expected to give rise to any claim under any “bad acts” guarantee, environmental guarantee or similar agreement or instrument.
5.5. Insurance. The Parent Guarantor will maintain or cause to be maintained, with financially sound and reputable insurers, such public liability insurance, third party property damage insurance, business interruption insurance and casualty insurance with respect to liabilities, losses or damage in respect of the assets, property and business of the Parent Guarantor and its Subsidiaries (other than, after the consummation of a Non-Recourse Indebtedness Foreclosure, any such assets of the applicable Turn-Over Subsidiary that are the subject of such Non-Recourse Indebtedness Foreclosure) as may customarily be carried or maintained under similar circumstances by Persons of established reputation engaged in similar businesses, in each case in such amounts (giving effect to self‑insurance), with such deductibles, covering such risks and otherwise on such terms and conditions as shall be customary for such Persons. Each such policy of insurance shall name Collateral Agent, on behalf of the Secured Parties, as an additional insured thereunder. Notwithstanding the foregoing, the Parent Guarantor shall not be required to maintain business interruption or casualty insurance with respect to a Turn-Over Subsidiary: (i) after the consummation of a Non-Recourse Indebtedness Foreclosure; or (ii) prior to the consummation of a Non-Recourse Indebtedness Foreclosure, if (a) the conditions set forth in clauses (i), (iii), and (iv) of the definition of “Turn-Over Subsidiary” have been satisfied, and (b) the failure to maintain such insurance would not be reasonably expected to give rise to any claim under any “bad acts” guarantee, environmental guarantee or similar agreement or instrument.
5.6.