FIRST AMENDMENT TO Second AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.1
Execution Copy
FIRST AMENDMENT TO Second AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT TO Second AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”), dated as of December 22, 2021, is entered into by and among REALTY INCOME CORPORATION, a Maryland corporation (the “Borrower”) and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent (the “Administrative Agent”).
WHEREAS, the Borrower, the Lenders and the Administrative Agent have entered into that certain Second Amended and Restated Credit Agreement, dated as of August 7, 2019 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among the Borrower, each of the financial institutions initially a signatory thereto together with their successors and assignees under Section 13.5 of the Credit Agreement and the Administrative Agent;
WHEREAS, pursuant to Section 5.2(c) of the Credit Agreement, the Administrative Agent and the Borrower seek to modify certain terms and provisions of the Credit Agreement as set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereto agree as follows:
Section 1. Specific Amendments to Credit Agreement. Upon the effectiveness of this Amendment, the parties hereto agree as follows:
(a)
The Credit Agreement is amended to delete the stricken text (indicated textually in the same manner as the following example: stricken
text) and to add the underlined text (indicated textually in the same manner as the following example: underlined
text) as set forth in Annex A attached hereto.
(b) Notwithstanding anything to the contrary in the Loan Documents, from and after the date hereof until the date the SORA Adjustment has been agreed to in writing by the Borrower, the Administrative Agent and the Tranche 2 Lenders, (i) Singapore Dollars shall not be available as a Foreign Currency under the Credit Agreement, and no Lender shall be obligated to participate in any Loan under the Credit Agreement in Singapore Dollars, (ii) any and all outstanding Loans in Singapore Dollars shall have been repaid or prepaid by the Borrower on or before December 31, 2021 and (iii) if a notice or instruction is given under the Credit Agreement after the date hereof that selects Singapore Dollars as the currency of a Revolving Loan, such notice or instruction shall be deemed to be amended to select USD as the currency of that Loan and agrees that only such amended notice or instruction will have effect under the Credit Agreement.
Section 2. Conditions Precedent. The effectiveness of this Amendment is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received a counterpart of this Amendment duly executed by the Borrower and the Administrative Agent;
(b) pursuant to the requirements of Section 5.2(c) of the Credit Agreement, on or prior to the date hereof, the Administrative Agent shall not have received notice from Lenders constituting Requisite Lenders specifying their objection hereto; and
(c) evidence that all reasonable and invoiced out-of-pocket fees and expenses payable to the Administrative Agent, in connection with this Amendment have been paid.
Section 3. Representations. The Borrower represents and warrants to the Administrative Agent and the Lenders that:
(a) Authorization. The Borrower has the right and power, and has taken all necessary action to authorize, execute and deliver this Amendment and to perform its obligations hereunder, and under the Credit Agreement, as amended by this Amendment, in accordance with their respective terms. This Amendment has been duly executed and delivered by a duly authorized officer of the Borrower and each of this Amendment and the Credit Agreement, as amended by this Amendment, is a legal, valid and binding obligation of the Borrower enforceable against it in accordance with its respective terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability (whether in a proceeding at law or in equity).
(b) Compliance with Laws, etc. The execution and delivery by the Borrower of this Amendment and the performance by the Borrower of this Amendment and the Credit Agreement, as amended by this Amendment, in accordance with their respective terms, do not and will not, by the passage of time, the giving of notice or otherwise: (i) require any Government Approvals or violate any Applicable Laws (including Environmental Laws) relating to any Borrower in any material respect relating to the Borrower; (ii) conflict with, result in a breach of or constitute a default under the organizational documents of any Borrower, or any material indenture, agreement or other instrument to which the Borrower is a party or by which it or any of its respective properties may be bound; or (iii) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Borrower other than in favor of the Administrative Agent for its benefit and the benefit of the other Lender Parties.
(c) No Default. No Default or Event of Default has occurred and is continuing as of the date hereof or will exist immediately after giving effect to this Amendment.
Section 4. Reaffirmation of Representations by the Borrower. The Borrower hereby repeats and reaffirms all representations and warranties made by such Borrower to the Administrative Agent and the Lenders in the Credit Agreement and the other Loan Documents to which it is a party on and as of the date hereof with the same force and effect as if such representations and warranties were set forth in this Amendment in full.
Section 5. Certain References. Each reference to the Credit Agreement in any of the Loan Documents shall be deemed to be a reference to the Credit Agreement as amended by this Amendment.
Section 6. Expenses. The Borrower shall reimburse the Administrative Agent upon demand for all reasonable and invoiced out-of-pocket costs and expenses (including reasonable and invoiced fees and disbursements of counsel) incurred by the Administrative Agent in connection with the preparation, negotiation and execution of this Amendment and the other agreements and documents executed and delivered in connection herewith.
Section 7. Benefits. This Amendment shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
Section 8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
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Section 9. Effect. Except as expressly herein amended, the terms and conditions of the Credit Agreement and the other Loan Documents remain in full force and effect. The amendments contained herein shall be deemed to have prospective application only. The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents, nor constitute a course of conduct or dealing among the parties. The Administrative Agent and the Lenders reserve all rights, privileges and remedies under the Loan Documents. Nothing in this Amendment is intended, or shall be construed, to constitute a novation or an accord and satisfaction of any of the Obligations. On and after the effectiveness of this Amendment, this Amendment shall constitute a Loan Document.
Section 10. Entire Agreement. This Amendment constitutes the entire agreement and understanding among the parties hereto with respect to the subject matter hereof and supersedes any and all prior agreements and understandings, oral or written, relating to the subject matter hereof.
Section 11. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed to be an original and shall be binding upon all parties, their successors and assigns. This Amendment may be executed by any electronic means, including “pdf”.
Section 12. Definitions. All capitalized terms not otherwise defined herein are used herein with the respective definitions given them in the Credit Agreement, as amended by this Amendment.
[Signatures on Next Page]
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to Second Amended and Restated Credit Agreement to be executed as of the date first above written.
| REALTY INCOME CORPORATION | |||
| By: | /s/ Xxxxxxxx X. Xxxxx | ||
| Name: | Xxxxxxxx X. Xxxxx | ||
| Title: | EVP, Chief Financial Officer and Treasurer | ||
[Signatures Continued on Next Page]
[Signature Page to First Amendment to Second
Amended and Restated Credit Agreement with Realty
Income Corporation]
| Xxxxx Fargo Bank, National Association, as Administrative Agent | |||
| By: | /s/ Xxxx Xxxxxxx | ||
| Name: | Xxxx Xxxxxxx | ||
| Title: | Managing Director | ||
[Signatures Continued on Next Page]
ANNEX A
Revised Credit Agreement
See attached
Loan Number: 1003352
Execution VersionConformed
through First Amendment dated December 22, 2021
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of August 7, 2019
by and among
REALTY INCOME CORPORATION,
as Borrower,
THE FINANCIAL INSTITUTIONS
PARTY HERETO
AND THEIR ASSIGNEES UNDER SECTION 13.5.,
as Lenders,
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent
|
XXXXX FARGO SECURITIES, LLC, XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX, INCORPORATED, RBC CAPITAL MARKETS, REGIONS CAPITAL MARKETS, and JPMORGAN CHASE BANK, N.A, as Joint Lead Arrangers and Joint Bookrunners for the Revolving Loans,
BANK OF AMERICA, N.A., ROYAL BANK OF CANADA, JPMORGAN CHASE BANK, N.A, and REGIONS BANK, as Syndication Agents for the Revolving Loans,
BARCLAYS BANK PLC, XXXXXX XXXXXXX SENIOR FUNDING, INC., XXXXXXX SACHS BANK USA, MIZUHO BANK, LTD., and U.S. BANK NATIONAL ASSOCIATION as Documentation Agents for the Revolving Loans, |
XXXXX FARGO SECURITIES, LLC, XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX, INCORPORATED and RBC CAPITAL MARKETS, as Joint Lead Arrangers and Joint Bookrunners for the Tranche A Term Loan,
BANK OF AMERICA, N.A., ROYAL BANK OF CANADA, and REGIONS BANK, as Syndication Agents for the Tranche A Term Loan,
JPMORGAN CHASE BANK, N.A., and U.S. BANK NATIONAL ASSOCIATION, as Documentation Agents for the Tranche A Term Loan,
|
XXXXX FARGO SECURITIES, LLC, REGIONS CAPITAL MARKETS, U.S. BANK NATIONAL ASSOCIATION, PNC CAPITAL MARKETS LLC, BRANCH BANKING AND TRUST COMPANY, and THE BANK OF NEW YORK MELLON as Joint Lead Arrangers for the Tranche B Term Loan,
REGIONS BANK, U.S. BANK NATIONAL ASSOCIATION, PNC BANK, NATIONAL ASSOCIATION, BRANCH BANKING AND TRUST COMPANY, and THE BANK OF NEW YORK MELLON, as Syndication Agents for the Tranche B Term Loan |
| TABLE OF CONTENTS | |
| Article I. Definitions | 2 |
| Section 1.1. Definitions | 2 |
| Section 1.2. General; References to Pacific Time | |
| Section 1.3. Rates | |
| Section 1.4. Exchange Rates; Currency Equivalents | |
| Section 1.5. Change of Currency | |
| Article II. Credit Facility | |
| Section 2.1. Revolving Loans | |
| Section 2.2. Term Loans | |
| Section 2.3. Bid Rate Loans | |
| Section 2.4. Letters of Credit | |
| Section 2.5. Swingline Loans | |
| Section 2.6. Rates and Payment of Interest on Loans | |
| Section 2.7. Number of Interest Periods | |
| Section 2.8. Repayment of Loans | |
| Section 2.9. Prepayments | |
| Section 2.10. Continuation | |
| Section 2.11. Conversion | |
| Section 2.12. Notes | |
| Section 2.13. Voluntary Reductions of the Revolving Commitments | |
| Section 2.14. Extension of Revolving Termination Date | |
| Section 2.15. Expiration Date of Letters of Credit Past Revolving Commitment Termination | |
| Section 2.16. Amount Limitations | |
| Section 2.17. Increase in Tranche 1 Revolving Commitments | |
| Section 2.18. Funds Transfer Disbursements | |
| Article III. Payments, Fees and Other General Provisions | |
| Section 3.1. Payments | |
| Section 3.2. Pro Rata Treatment | |
| Section 3.3. Sharing of Payments, Etc | |
| Section 3.4. Several Obligations | |
| Section 3.5. Fees | |
| Section 3.6. Computations | |
| Section 3.7. Usury | |
| Section 3.8. Statements of Account; Xxxx Lead Date Request | |
| Section 3.9. Defaulting Lenders | |
| Section 3.10. Taxes | |
| Article IV. Eligibility of Properties | |
| Section 4.1. Eligibility of Properties | |
| Section 4.2. Termination of Designation as Unencumbered Asset | |
| Article V. Yield Protection, Etc. | |
| Section 5.1. Additional Costs; Capital Adequacy | |
| Section 5.2. Changed Circumstances | |
| Section 5.3. Illegality | |
| Section 5.4. Compensation | |
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| Section 5.5. Treatment of Affected Loans | |
| Section 5.6. Affected Lenders | |
| Section 5.7. Change of Lending Office | |
| Section
5.8. Assumptions Concerning Funding of |
|
| Article VI. Conditions Precedent | |
| Section 6.1. Initial Conditions Precedent | |
| Section 6.2. Conditions Precedent to All Loans and Letters of Credit | |
| Article VII. Representations and Warranties | |
| Section 7.1. Representations and Warranties | |
| Section 7.2. Survival of Representations and Warranties, Etc. | |
| Article VIII. Affirmative Covenants | |
| Section 8.1. Preservation of Existence and Similar Matters | |
| Section 8.2. Compliance with Applicable Law | |
| Section 8.3. Maintenance of Property | |
| Section 8.4. Conduct of Business | |
| Section 8.5. Insurance | |
| Section 8.6. Payment of Taxes and Claims | |
| Section 8.7. Books and Records; Inspections | |
| Section 8.8. Use of Proceeds | |
| Section 8.9. Environmental Matters | |
| Section 8.10. Further Assurances | |
| Section 8.11. [Reserved] | |
| Section 8.12. REIT Status | |
| Section 8.13. Exchange Listing | |
| Section 8.14. Guarantors | |
| Article IX. Information | |
| Section 9.1. Quarterly Financial Statements | |
| Section 9.2. Year-End Statements | |
| Section 9.3. Compliance Certificate | |
| Section 9.4. Other Information | |
| Section 9.5. Electronic Delivery of Certain Information | |
| Section 9.6. Public/Private Information | |
| Section 9.7. USA Patriot Act Notice; Compliance | |
| Section 9.8. Compliance with Anti-Corruption Laws; Beneficial Ownership Regulation, Anti-Money Laundering Laws and Sanctions | |
| Article X. Negative Covenants | |
| Section 10.1. Financial Covenants | |
| Section 10.2. Negative Pledge | |
| Section 10.3. Restrictions on Intercompany Transfers | |
| Section 10.4. Merger, Consolidation, Sales of Assets and Other Arrangements | |
| Section 10.5. Plans | |
| Section 10.6. Fiscal Year | |
| Section 10.7. Modifications of Organizational Documents and Material Contracts |
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| Section 10.8. Transactions with Affiliates | |
| Section 10.9. Derivatives Contracts | |
| Article XI. Default | |
| Section 11.1. Events of Default | |
| Section 11.2. Remedies Upon Event of Default | |
| Section 11.3. [Reserved] | |
| Section 11.4. Marshaling; Payments Set Aside | |
| Section 11.5. Allocation of Proceeds | |
| Section 11.6. Letter of Credit Collateral Account | |
| Section 11.7. Performance by Administrative Agent | |
| Section 11.8. Rights Cumulative | |
| Article XII. The Administrative Agent | |
| Section 12.1. Appointment and Authorization | |
| Section 12.2. Administrative Agent’s Reliance | |
| Section 12.3. Notice of Events of Default | |
| Section 12.4. Administrative Agent as Lender | |
| Section 12.5. Approvals of Lenders | |
| Section 12.6. Indemnification of Administrative Agent | |
| Section 12.7. Lender Credit Decision, Etc. | |
| Section 12.8. Successor Administrative Agent | |
| Section 12.9. Titled Agents. | |
| Article XIII. Miscellaneous | |
| Section 13.1. Notices | |
| Section 13.2. Expenses | |
| Section 13.3. Setoff | |
| Section 13.4. Litigation; Jurisdiction; Other Matters; Waivers | |
| Section 13.5. Successors and Assigns | |
| Section 13.6. Amendments and Waivers | |
| Section 13.7. Nonliability of Administrative Agent and Lenders | |
| Section 13.8. Confidentiality | |
| Section 13.9. Indemnification | |
| Section 13.10. Termination; Survival | |
| Section 13.11. Severability of Provisions | |
| Section 13.12. GOVERNING LAW | |
| Section 13.13. Counterparts | |
| Section 13.14. Obligations with Respect to Loan Parties and Subsidiaries | |
| Section 13.15. Independence of Covenants | |
| Section 13.16. Limitation of Liability | |
| Section 13.17. Entire Agreement | |
| Section 13.18. Construction | |
| Section 13.19. Headings | |
| Section 13.20. Acknowledgement and Consent to Bail-in of EEA Financial Institutions | |
| Section 13.21. Acknowledgement Regarding Any Supported QFCs | |
| Section 13.22. Effect of Amendment and Restatement |
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| SCHEDULE I | Commitments and Outstanding Loans |
| SCHEDULE 1.1.(A) | Existing Letters of Credit |
| SCHEDULE 1.1.(B) | List of Loan Parties |
| SCHEDULE 4.1. | Initial Unencumbered Assets |
| SCHEDULE 7.1.(b) | Ownership Structure |
| SCHEDULE 7.1.(f) | Properties |
| SCHEDULE 7.1.(g) | Indebtedness and Guaranties |
| SCHEDULE 7.1.(h) | Material Contracts |
| SCHEDULE 7.1.(i) | Litigation |
| SCHEDULE 7.1.(r) | Affiliate Transactions |
| EXHIBIT A | Form of Assignment and Assumption Agreement |
| EXHIBIT B | Form of Bid Rate Note |
| EXHIBIT C | Form of Designation Agreement |
| EXHIBIT D | Form of Disbursement Instruction Agreement |
| EXHIBIT E | Form of Guaranty |
| EXHIBIT F | Form of Notice of Continuation |
| EXHIBIT G | Form of Notice of Conversion |
| EXHIBIT H | Form of Notice of Revolving Borrowing |
| EXHIBIT I | Form of Notice of Swingline Borrowing |
| EXHIBIT J | Form of Tranche 1 Revolving Note |
| EXHIBIT K | Form of Tranche 2 Revolving Note |
| EXHIBIT L | Form of Swingline Note |
| EXHIBIT M | Form of Tranche A Term Loan Note |
| EXHIBIT N | Form of Tranche B Term Loan Note |
| EXHIBIT O | Form of Unencumbered Asset Certificate |
| EXHIBIT P | Form of Bid Rate Quote Request |
| EXHIBIT Q | Form of Bid Rate Quote |
| EXHIBIT R | Form of Bid Rate Quote Acceptance |
| EXHIBIT S | Forms of U.S. Tax Compliance Certificates |
| EXHIBIT T | Form of Compliance Certificate |
| EXHIBIT U | Form of Closing Certificate |
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THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) dated as of August 7, 2019 by and among REALTY INCOME CORPORATION, a corporation formed under the laws of the State of Maryland (the “Borrower”), each of the financial institutions initially a signatory hereto together with their successors and assignees under Section 13.5. (the “Lenders”), and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent (the “Administrative Agent”), with XXXXX FARGO SECURITIES, LLC, XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX, INCORPORATED (or any other registered broker-dealer wholly-owned by Bank of America Corporation to which all or substantially all of Bank of America Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or related businesses may be transferred following the date of this Agreement), RBC CAPITAL MARKETS, REGIONS CAPITAL MARKETS and JPMORGAN CHASE BANK, N.A, as Joint Lead Arrangers and Joint Bookrunners for the Revolving Loans (in such capacities, the “Revolving Loan Lead Arrangers”), BANK OF AMERICA, N.A., ROYAL BANK OF CANADA, REGIONS BANK and JPMORGAN CHASE BANK, N.A, as Syndication Agents for the Revolving Loans (in such capacities, the “Revolving Loan Syndication Agents”), BARCLAYS BANK PLC, XXXXXX XXXXXXX SENIOR FUNDING, INC., XXXXXXX SACHS BANK USA, MIZUHO BANK, LTD., and U.S. BANK NATIONAL ASSOCIATION as Documentation Agents for the Revolving Loans (in such capacity, the “Revolving Loan Documentation Agents”), XXXXX FARGO SECURITIES, LLC, XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX, INCORPORATED, and RBC CAPITAL MARKETS, as Joint Lead Arrangers and Joint Bookrunners for the Tranche A Term Loan (in such capacities, the “Tranche A Term Loan Lead Arrangers”), BANK OF AMERICA, N.A., ROYAL BANK OF CANADA, and REGIONS BANK, as Syndication Agents for the Tranche A Term Loan (in such capacity, the “Tranche A Term Loan Syndication Agents”), JPMORGAN CHASE BANK, N.A. and U.S. BANK NATIONAL ASSOCIATION, as Documentation Agents for the Tranche A Term Loan (in such capacity, the “Tranche A Term Loan Documentation Agents”; and together with the Revolving Loan Documentation Agents, the “Documentation Agents”), XXXXX FARGO SECURITIES, LLC, REGIONS CAPITAL MARKETS, U.S. BANK NATIONAL ASSOCIATION, PNC CAPITAL MARKETS LLC, BRANCH BANKING AND TRUST COMPANY and THE BANK OF NEW YORK MELLON as Joint Lead Arrangers and Joint Bookrunners for the Tranche B Term Loan (in in such capacities, the “Tranche B Term Loan Lead Arrangers”; and together with the Revolving Loan Lead Arrangers and the Tranche A Term Loan Lead Arrangers, the “Lead Arrangers”), REGIONS BANK, U.S. BANK NATIONAL ASSOCIATION, PNC BANK, NATIONAL ASSOCIATION, BRANCH BANKING AND TRUST COMPANY and THE BANK OF NEW YORK MELLON as Syndication Agents for the Tranche B Term Loan (in such capacity, the “Tranche B Term Loan Syndication Agents”; and together with the Revolving Loan Syndication Agents and the Tranche A Term Loan Syndication Agents, the “Syndication Agents”).
WHEREAS, the Borrower, certain of the Lenders and other lenders party thereto (collectively, the “Existing Lenders”), the Administrative Agent and certain other parties have entered into that certain Amended and Restated Credit Agreement dated as of October 24, 2018 (the “Existing Agreement Date”) (as amended, restated, supplemented or otherwise modified and as in effect immediately prior to the date hereof, the “Existing Credit Agreement”); and
WHEREAS, the Administrative Agent, the Issuing Banks, the Swingline Lender and the Lenders desire to amend and restate the Existing Credit Agreement to, among other things, make available to the Borrower (a) a multicurrency revolving credit facility in the initial amount of $2,700,000,000, which will include a $300,000,000 swingline subfacility, a $60,000,000 letter of credit subfacility, and a competitive bid loan subfacility, (b) a multicurrency revolving credit facility in the initial amount of $300,000,000, (c) an existing $250,000,000 term loan facility and (d) an additional existing $250,000,000 term loan facility, in each case, on the terms and conditions contained herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereto agree as follows:
ARTICLE I. DEFINITIONS
Section 1.1. Definitions.
In addition to terms defined elsewhere herein, the following terms shall have the following meanings for the purposes of this Agreement:
“Absolute Rate” has the meaning given that term in Section 2.3.(c)(ii)(C).
“Absolute Rate Auction” means a solicitation of Bid Rate Quotes setting forth Absolute Rates pursuant to Section 2.3.
“Absolute Rate Loan” means a Bid Rate Loan, the interest rate on which is determined on the basis of an Absolute Rate pursuant to an Absolute Rate Auction.
“Accession Agreement” means an Accession Agreement substantially in the form of Annex I to the Guaranty.
“Additional Costs” has the meaning given that term in Section 5.1.(b).
“Adjusted Daily Simple RFR” means, for any RFR Rate Day, a rate per annum equal to, for any Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to:
(a) Dollars, on and after the USD LIBOR Transition Date, the greater of (i) the sum of (A) SOFR for the day (such day, a “Dollar RFR Determination Day”) that is five (5) RFR Business Days prior to (I) if such RFR Rate Day is an RFR Business Day, such RFR Rate Day or (II) if such RFR Rate Day is not an RFR Business Day, the RFR Business Day immediately preceding such RFR Rate Day, in each case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator’s Website; provided that if by 5:00 p.m. (New York time) on the second (2nd) RFR Business Day immediately following any Dollar RFR Determination Day, SOFR in respect of such Dollar RFR Determination Day has not been published on the SOFR Administrator’s Website and a Benchmark Replacement Date with respect to SOFR has not occurred, then SOFR for such Dollar RFR Determination Day will be SOFR as published in respect of the first preceding RFR Business Day for which such SOFR was published on the SOFR Administrator’s Website; provided further that SOFR as determined pursuant to this proviso shall be utilized for purposes of calculation of Adjusted Daily Simple RFR for Dollars for no more than three (3) consecutive RFR Rate Days and (B) the SOFR Adjustment and (ii) the Floor;
(b) Sterling, the greater of (i) the sum of (A) XXXXX for the day (such day, a “Sterling RFR Determination Day”) that is five (5) RFR Business Days prior to (I) if such RFR Rate Day is an RFR Business Day, such RFR Rate Day or (II) if such RFR Rate Day is not an RFR Business Day, the RFR Business Day immediately preceding such RFR Rate Day, in each case, as such XXXXX is published by the XXXXX Administrator on the XXXXX Administrator’s Website; provided that if by 5:00 p.m. (London time) on the second (2nd) RFR Business Day immediately following any Sterling RFR Determination Day, XXXXX in respect of such Sterling RFR Determination Day has not been published on the XXXXX Administrator’s Website and a Benchmark Replacement Date with respect to XXXXX has not occurred, then XXXXX for such Sterling RFR Determination Day will be XXXXX as published in respect of the first preceding RFR Business Day for which such XXXXX was published on the XXXXX Administrator’s Website; provided further that XXXXX as determined pursuant to this proviso shall be utilized for purposes of calculation of Adjusted Daily Simple RFR for Sterling for no more than three (3) consecutive RFR Rate Days and (B) the XXXXX Adjustment and (ii) the Floor;
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(c) Swiss Francs, the greater of (i) the sum of (A) SARON for the day (such day, a “Swiss Francs RFR Determination Day”) that is five (5) RFR Business Days prior to (I) if such RFR Rate Day is an RFR Business Day, such RFR Rate Day or (II) if such RFR Rate Day is not an RFR Business Day, the RFR Business Day immediately preceding such RFR Rate Day, in each case, as such SARON is published by the SARON Administrator on the SARON Administrator’s Website; provided that if by 5:00 p.m. (Zurich time) on the second (2nd) RFR Business Day immediately following any Swiss Francs RFR Determination Day, SARON in respect of such Swiss Francs RFR Determination Day has not been published on the SARON Administrator’s Website and a Benchmark Replacement Date with respect to SARON has not occurred, then SARON for such Swiss Francs RFR Determination Day will be SARON as published in respect of the first preceding RFR Business Day for which such SARON was published on the SARON Administrator’s Website; provided further that SARON as determined pursuant to this proviso shall be utilized for purposes of calculation of Adjusted Daily Simple RFR for Swiss Francs for no more than three (3) consecutive RFR Rate Days and (B) the SARON Adjustment and (ii) the Floor; and
(d) Singapore Dollars, the greater of (i) the sum of (A) SORA for the day (such day, a “Singapore Dollar RFR Determination Day”) that is five (5) RFR Business Days prior to (I) if such RFR Rate Day is an RFR Business Day, such RFR Rate Day or (II) if such RFR Rate Day is not an RFR Business Day, the RFR Business Day immediately preceding such RFR Rate Day, in each case, as such SORA is published by the SORA Administrator on the SORA Administrator’s Website; provided that if by 5:00 p.m. (Singapore time) on the second (2nd) RFR Business Day immediately following any Singapore Dollar RFR Determination Day, SORA in respect of such Singapore Dollar RFR Determination Day has not been published on the SORA Administrator’s Website and a Benchmark Replacement Date with respect to SORA has not occurred, then SORA for such Singapore Dollar RFR Determination Day will be SORA as published in respect of the first preceding RFR Business Day for which such SORA was published on the SORA Administrator’s Website; provided further that SORA as determined pursuant to this proviso shall be utilized for purposes of calculation of Adjusted Daily Simple RFR for Singapore Dollars for no more than three (3) consecutive RFR Rate Days and (B) the SORA Adjustment and (ii) the Floor.
Any change in Adjusted Daily Simple RFR for any Currency due to a change in the applicable RFR for such Currency shall be effective from and including the effective date of such change in the RFR for such Currency without notice to the Borrower.
“Adjusted Eurocurrency Rate” means, as to any Loan denominated in any applicable Currency not bearing interest based on an RFR (which, as of the First Amendment Date, shall mean Dollars and each Foreign Currency, other than Sterling, Swiss Francs and Singapore Dollars), for any Interest Period, a rate per annum determined by the Administrative Agent pursuant to the following formula:
“Adjusted Funds From Operations” means, with respect to a Person for any period, (a) Funds From Operations of such Person for such period, plus (b) non-cash deferred note financing costs and stock compensation costs of such Person for such period, plus (c) loss (or minus gain) on the xxxx-to-market of derivatives instruments, minus (d) capital expenditures paid in cash by such Person during such period. Adjusted Funds From Operations shall exclude straight-line rent and market rent leveling adjustments required by GAAP.
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“Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment; provided that if Adjusted Term SOFR as so determined shall ever be less than the Floor, then Adjusted Term SOFR shall be deemed to be the Floor.
“Administrative Agent” means Xxxxx Fargo Bank, National Association as contractual representative of the Lenders under this Agreement, or any successor Administrative Agent appointed pursuant to Section 12.8.
“Administrative Questionnaire” means the Administrative Questionnaire completed by each Lender and delivered to the Administrative Agent in a form supplied by the Administrative Agent to the Lenders from time to time.
“Affected Lender” has the meaning given that term in Section 5.6.
“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. In no event shall the Administrative Agent or any Lender be deemed to be an Affiliate of the Borrower.
“Agreement” has the meaning set forth in the introductory paragraph hereof.
“Agreement Date” means the date as of which this Agreement is dated.
“Announcements” has the meaning given that term in Section 1.3.
“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Borrower or its Subsidiaries from time to time concerning or relating to bribery or corruption, including, without limitation, the United States Foreign Corrupt Practices Act of 1977 and the rules and regulations thereunder and the U.K. Xxxxxxx Xxx 0000 and the rules and regulations thereunder.
“Anti-Money Laundering Laws” means all laws, statutes, regulations or obligatory government orders, decrees, ordinances or rules applicable to the Borrower, its Subsidiaries or Affiliates related to terrorism financing or money laundering, including any applicable provision of the Patriot Act and The Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act,” 31 U.S.C. §§ 5311-5330 and 12U.S.C. §§ 1818(s), 1820(b) and 1951-1959).
“Applicable Law” means all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes, executive orders, and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority.
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“Applicable
Margin” means the percentage rates set forth in the tabletables below
corresponding to the level (each a “Level”) into which the Credit Rating then falls. As of the Agreement Date, the
Applicable Margins are determined based on Level 2. Any change in the Borrower’s Credit Rating which would cause the
Applicable Margins to be determined based on a different Level shall be effective as of the first day of the first calendar month
immediately following receipt by the Administrative Agent of written notice delivered by the Borrower in accordance with Section
9.4.(p) that the Borrower’s Credit Rating has changed; provided, however, that if the Borrower has not delivered
the notice required by such Section but the Administrative Agent becomes aware that the Borrower’s Credit Rating has changed,
then the Administrative Agent shall give the Borrower notice of its awareness of such change (provided that failure to give
such notice shall not limit the effectiveness of any adjustment of the applicable Level by the Administrative Agent in accordance
with this definition) and may, in its sole discretion, adjust the Level effective as of the first day of the first calendar month
following the date the Administrative Agent becomes aware that the Credit Rating has changed. During any period for which the
Borrower has received three Credit Ratings which are not equivalent, the Applicable Margins shall be determined by (a) the highest
Credit Rating if they differ by only one Level and (b) the average of the two highest Credit Ratings if they differ by two or more
Levels (unless the average is not a recognized Level, in which case the Applicable Margins will be based on the Level corresponding
to the second highest Credit Rating). During any period for which the Borrower has received only two Credit Ratings and such Credit
Ratings are not equivalent, the Applicable Margins shall be determined by (i) the highest Credit Rating if they differ by only one
Level and (ii) the average of the two Credit Ratings if they differ by two or more Levels (unless the average is not a recognized
Level, in which case the Applicable Margins shall be based on the Credit Rating one Level below the Level corresponding to the
higher Credit Rating). During any period for which the Borrower has received a Credit Rating from only one Rating Agency, the
Applicable Margins shall be determined based on such Credit Rating so long as such Credit Rating is from either S&P or
Xxxxx’x. During any period that the Borrower has (x) not received a Credit Rating from any Rating Agency or (x) received a
Credit Rating from only one Rating Agency that is neither S&P or Xxxxx’x, the Applicable Margins shall be determined based
on Level 6.
The provisions of this definition shall be subject to Section 2.6.(c).
|
Level |
Credit Rating |
Applicable Margin for Revolving Loans that are
Loans |
Applicable Margin for Revolving Loans that are Base Rate Loans |
Applicable Margin for
are
Loans |
|
|
|
| 1 | A/A2 (or higher) | 0.750% | 0.000% | ||||
| 2 | A-/A3 | 0.775% | 0.000% | 0.775% | |||
| 3 | BBB+/Baa1 | 0.825% | 0.000% | 0.825% | |||
| 4 | BBB/Baa2 | 0.900% | 0.000% | 0.900% | |||
| 5 | BBB-/Baa3 | 1.100% | 0.100% | 1.100% | |||
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| Applicable | |||||||
| Margin for | Applicable | ||||||
| Revolving Loans | Margin for | ||||||
| that
are |
Applicable | ||||||
| Margin for | |||||||
| Revolving | g Loans that | ||||||
| Loans that are | are | ||||||
| Credit | rrency Rate | Base Rate | |||||
| Level | Rating | Loans | Loans | Loans | |||
| 6 | BB+/Ba1 (or lower or unrated) | 1.450% | 0.450% | 1.450% | |||
| Applicable | Applicable | ||||||
| Margin for | Margin for | ||||||
| Tranche A Term | Tranche A | ||||||
| Loans that are | Term Loans | ||||||
| Credit | Eurocurrency | that are Base | Applicable Margin for Tranche A Term Loans that | ||||
| Level | Rating | Rate Loans | Rate Loans | are XXX Xxxxx | |||
| 0 | X/X0 (xx xxxxxx) | 0.900% | 0.000% | 0.900% | |||
| 2 | A-/A3 | 0.000% | 0.900% | ||||
| 3 | BBB+/Baa1 | 0.000% | 0.950% | ||||
| 4 | BBB/Baa2 | 1.100% | |||||
| 5 | BBB-/Baa3 | 1.350% | 0.350% | 1.350% | |||
| 6 | BB+/Ba1 (or lower or unrated) | 1.750% | 0.750% | 1.750% | |||
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| Applicable | Applicable | ||||||
| Margin for | Margin for | ||||||
| Tranche B Term | Tranche B | ||||||
| Loans that are | Term Loans | ||||||
| Leve | Credit | Eurocurrency | that are Base | Applicable Margin for Tranche B Term Loans that | |||
| l | Rating | Rate Loans | Rate Loans | are XXX Xxxxx | |||
| 0 | X/X0 (xx xxxxxx) | 0.800% | 0.000% | 0.800% | |||
| 2 | A-/A3 | 0.850% | 0.000% | 0.850% | |||
| 3 | BBB+/Baa1 | 0.900% | 0.000% | 0.900% | |||
| 4 | BBB/Baa2 | 1.000% | 0.000% | 1.000% | |||
| 5 | BBB-/Baa3 | ||||||
| 6 | BB+/Ba1 (or lower or unrated) | ||||||
“Applicable Revolving Facility Fee” means the percentage rate set forth in the table below corresponding to the Level at which the “Applicable Margin” is determined in accordance with the definition thereof:
| Applicable | |
| Level | Revolving |
| Facility Fee | |
| 1 | 0.100% |
| 2 | 0.125% |
| 3 | 0.150% |
| 4 | 0.200% |
| 5 | 0.250% |
| 6 | 0.300% |
Any change in the applicable Level at which the Applicable Margin is determined shall result in a corresponding and simultaneous change in the Applicable Revolving Facility Fee. The provisions of this definition shall be subject to Section 2.6.(c).
“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender, or (c) an entity or an Affiliate of any entity that administers or manages a Lender.
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“Assignment and Assumption” means an Assignment and Assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 13.5.), and accepted by the Administrative Agent, in substantially the form of Exhibit A or any other form approved by the Administrative Agent.
“AUD”, “Australian Dollars” or “A$” means the lawful currency of Australia.
“Available Tenor” means, as of any date of determination and with respect to any then-current Benchmark for any Currency, as applicable, (a) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an Interest Period pursuant to this Agreement or (b) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 5.2(c)(iv).
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
“Bankruptcy Code” means the Bankruptcy Code of 1978, as amended.
“Base Rate”
means, at any time, the highest of (a) the Prime Rate, (b) the Federal Funds Rate plus 0.50% and (c)(i)
prior to the USD LIBOR Transition Date, the LIBOR Market Index Rate plus
1.0%. Eachfor
Dollars for a one-month tenor in effect on such day plus 1.00% and (ii) on and after the USD LIBOR Transition Date, the sum of (A) either
(1) Adjusted Term SOFR (if a Benchmark Replacement is determined in accordance with clause (b)(1) of the definition of “Benchmark
Replacement” for the USD LIBOR Transition Date) for a one-month tenor in effect on such day or (2) Adjusted Daily Simple RFR for
Dollars (if a Benchmark Replacement is determined in accordance with clause (b)(2) of the definition of “Benchmark Replacement”
for the USD LIBOR Transition Date) in effect on such day plus (B)1.00%; each change in the Base Rate shall take effect simultaneously
with the corresponding change or changes in the Prime Rate, the Federal Funds Rate or,
the LIBOR Market Index Rate for
Dollars, Adjusted Term SOFR or Adjusted Daily Simple RFR for Dollars, as the case may be (provided that clause (c)
shall not be applicable during any period in which the
LIBOR Market
Index Rate, Adjusted Term SOFR or Adjusted Daily Simple RFR, as applicable, is unavailable or unascertainable). Notwithstanding
the foregoing, in no event shall the Base Rate be less than 1.00%.
“Base Rate Loan” means a Revolving Loan or Term Loan (or any portion thereof) bearing interest at a rate based on the Base Rate.
“BBRBR” has the meaning assigned thereto in the definition of “Eurocurrency Rate”.
“BBSY” has the meaning assigned thereto in the definition of “Eurocurrency Rate”.
“BBSY Rate” has the meaning assigned thereto in the definition of “Eurocurrency Rate”.
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“Benchmark” means, initially, with respect to any (a) Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Dollars, USD LIBOR; provided that if (i) the USD LIBOR Transition Date has occurred or (ii) a Benchmark Transition Event, a Term RFR Transition Event or an Other Benchmark Rate Election, as applicable, has occurred with respect to the then-current Benchmark for Dollars, then “Benchmark” means, with respect to such Obligations, interest, fees, commissions or other amounts, the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 5.8(c), (b) Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Sterling, Swiss Francs or Singapore Dollars, the Adjusted Daily Simple RFR applicable for such Currency; provided that if a Benchmark Transition Event or a Term RFR Transition Event, as applicable, has occurred with respect to such Adjusted Daily Simple RFR or the then-current Benchmark for such Currency, then “Benchmark” means, with respect to such Obligations, interest, fees, commissions or other amounts, the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 5.2(c) and (c) Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Euros, Yen, Australian Dollars, Canadian Dollars, Pesos, Hong Kong Dollars, Swedish Krona, Norwegian Krone, Danish Kroner or New Zealand Dollar, EURIBOR, TIBOR, BBSY, CDOR, TIIE Rate, HKIOR, SIOR, NIOR, CIOR or BBRB respectively; provided that if a Benchmark Transition Event or a Term RFR Transition Event, as applicable, has occurred with respect to EURIBOR, TIBOR, BBSY, CDOR, TIIE Rate, HKIOR, SIOR, NIOR, CIOR or BBRB, as applicable, or the then-current Benchmark for such Currency, then “Benchmark” means, with respect to such Obligations, interest, fees, commissions or other amounts, the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 5.2(c).
“Benchmark Replacement” means,
(a) with respect to any Benchmark Transition Event for any then-current Benchmark for any Currency, the sum of: (i) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for such Benchmark for such Currency giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate for such Currency by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for such Benchmark for syndicated credit facilities denominated in the applicable Currency at such time and (ii) the related Benchmark Replacement Adjustment; provided that, if such Benchmark Replacement as so determined would be less than the Floor, such Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents;
(b) with respect to the USD LIBOR Transition Date, for any Available Tenor of the Adjusted Eurocurrency Rate for Dollars, the first alternative set forth in the order below that can be determined by the Administrative Agent for the USD LIBOR Transition Date:
(1) Adjusted Term SOFR; provided, that, if the Borrower has provided a notification to the Administrative Agent in writing on or prior to the USD LIBOR Transition Date that the Borrower has a Derivatives Contract in place with respect to any of the Loans as of the date of such notice (which such notification the Administrative Agent shall be entitled to rely upon and shall have no duty or obligation to ascertain the correctness or completeness of), then the Administrative Agent, in its sole discretion, may decide not to determine the Benchmark Replacement pursuant to this clause (b)(1) for the USD LIBOR Transition Date;
(2) Adjusted Daily Simple RFR for Dollars; or
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| (3) | the sum of: (A) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for the Adjusted Eurocurrency Rate for Dollars giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the Adjusted Eurocurrency Rate for Dollars for syndicated credit facilities denominated in Dollars at such time and (B) the related Benchmark Replacement Adjustment; provided that, if such Benchmark Replacement as so determined would be less than the Floor, such Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents; |
(c) with respect to any Term RFR Transition Event for any Currency, the Term RFR for such Currency; or
(d) with respect to any Other Benchmark Rate Election, the sum of: (A) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for the Adjusted Eurocurrency Rate for Dollars giving due consideration to any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for such Benchmark for Dollar-denominated syndicated credit facilities at such time and (B) the related Benchmark Replacement Adjustment; provided that, if such Benchmark Replacement as so determined would be less than the Floor, such Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents;
provided that, in the case of clause (b)(1), if the Administrative Agent decides that Adjusted Term SOFR is not administratively feasible for the Administrative Agent, then Adjusted Term SOFR will be deemed unable to be determined for purposes of this definition.
“Benchmark Replacement Adjustment” means, for purposes of:
(a) clauses (a) and (b)(3) of the definition of “Benchmark Replacement”, with respect to any replacement of any then-current Benchmark for any Currency with an Unadjusted Benchmark Replacement for any applicable Available Tenor, the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero), that has been selected by the Administrative Agent and the Borrower giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark for such Currency with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for syndicated credit facilities denominated in the applicable Currency; and
(b) clause (d) of the definition of “Benchmark Replacement”, with respect to any replacement of the Adjusted Eurocurrency Rate for Dollars with an Unadjusted Benchmark Replacement for any applicable Available Tenor, the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero), that has been selected by the Administrative Agent and the Borrower giving due consideration to any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the Adjusted Eurocurrency Rate for Dollars with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities.
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“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark for any Currency:
(a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event”, the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof);
(b) in the case of clause (c) of the definition of “Benchmark Transition Event”, the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date;
(c) in the case of a Term RFR Transition Event for such Currency, the Term RFR Transition Date applicable thereto; or
(d) in the case of an Other Benchmark Rate Election, the sixth (6th) Business Day after the date notice of such Other Benchmark Rate Election is provided to the Lenders, so long as the Administrative Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Other Benchmark Rate Election is provided to the Lenders, written notice of objection to such Other Benchmark Rate Election from Lenders comprising the Requisite Lenders.
For the avoidance of doubt, (A) if the Reference Time for the applicable Benchmark refers to a specific time of day and the event giving rise to the Benchmark Replacement Date for any Benchmark occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such Benchmark and for such determination and (B) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means, with respect to the then-current Benchmark for any Currency (other than Adjusted Eurocurrency Rate for Dollars), the occurrence of one or more of the following events with respect to such Benchmark:
(a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(b) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the FRB, the Federal Reserve Bank of New York, the central bank for the Currency applicable to such Benchmark, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
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(c) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark for a Currency if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark for such Currency (or the published component used in the calculation thereof).
“Benchmark Transition Start Date” means, with respect to any Benchmark for any Currency, (a) in the case of a Benchmark Transition Event, the earlier of (i) the applicable Benchmark Replacement Date and (ii) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication) or (b) in the case of an Other Benchmark Rate Election, the applicable Benchmark Replacement Date.
“Benchmark Unavailability Period” means, with respect to (a) the Adjusted Eurocurrency Rate for Dollars, the period (if any) (i) beginning at the time that the USD LIBOR Transition Date has occurred pursuant to clause (a) of that definition if, at such time, no Benchmark Replacement has replaced the Adjusted Eurocurrency Rate for Dollars for all purposes hereunder and under any Loan Document in accordance with Section 5.2(e)(i) and (ii) ending at the time that a Benchmark Replacement has replaced the Adjusted Eurocurrency Rate for Dollars for all purposes hereunder and under any Loan Document in accordance with Section 5.2(e)(i) and (b) any then-current Benchmark for any Currency other than the Adjusted Eurocurrency Rate for Dollars, the period (if any) (i) beginning at the time that a Benchmark Replacement Date with respect to such Benchmark pursuant to clauses (a) or (b) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such Benchmark for such Currency for all purposes hereunder and under any Loan Document in accordance with Section 5.2(e)(i) and (ii) ending at the time that a Benchmark Replacement has replaced such Benchmark for such Currency for all purposes hereunder and under any Loan Document in accordance with Section 5.2(e)(i).
“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 CFR § 1010.230.
“Benefit Arrangement” means at any time an employee benefit plan within the meaning of Section 3(3) of ERISA which is not a Multiemployer Plan and which is maintained or otherwise contributed to by the Borrower or any Subsidiary.
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Bid Rate Borrowing” has the meaning given that term in Section 2.3.(b).
“Bid Rate Loan” means a loan made by a Lender under Section 2.3.(f).
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“Bid Rate Note” means a promissory note of the Borrower substantially in the form of Exhibit B, payable to a Lender.
“Bid Rate Quote” means an offer in accordance with Section 2.3.(c) by a Lender to make a Bid Rate Loan with one single specified interest rate.
“Bid Rate Quote Request” has the meaning given that term in Section 2.3.(b).
“Xxxx Lead Date” has the meaning given that term in Section 3.8.(b).
“Borrower” has the meaning set forth in the introductory paragraph hereof and shall include the Borrower’s successors and permitted assigns.
“Borrower Information” has the meaning given that term in Section 2.6.(c).
“Business Day”
means (a) for all purposes other than as set forth in clause (b) below, any day (other than a Saturday, Sunday or legal holiday) on which
banks in San Francisco, California and New York, New York, are open for the conduct of their commercial banking business; (b) with respect
to all notices and determinations in connection with, and payments of principal and interest on, any LIBOREurocurrency
Rate Loan or any Base Rate Loan as to which the interest rate is determined by reference to USD
LIBOR, any day that is a Business Day described in clause (a) and that is also a day for trading by and between banks in Dollar
deposits in the London interbank market; (c) if such day relates to any interest rate settings as to any Obligation denominated in Euros,
any fundings, disbursements, settlements and payments in Euros in respect of any such Obligation, or any other dealings in Euros to be
carried out pursuant to this Agreement in respect of any such Obligation, a day on which the Trans-European Automated Real-Time Gross
Settlement Express Transfer (TARGET) System is open (or if such payment system ceases to be operative, such other payment system (if
any) reasonably determined by the Administrative Agent to be a suitable replacement); (d) if such day relates to any interest rate settings
as to an Obligation denominated in a Currency other than Dollars or Euros, any such day on which dealings in deposits in the relevant
currency are conducted by and between banks in the principal financial center of the country of such Currency or other applicable offshore
interbank market for such Currency; and (e) if such day relates to any fundings, disbursements, settlements and payments in a Currency
other than Dollars or Euros in respect of a Foreign Currency Rate Loan denominated in a Currency other
than Dollars or Euros, or any other dealings in any Currency other than Dollars or Euros to be carried out pursuant to
this Agreement in respect of any such Foreign Currency Rate Loan (other than any interest rate settings), any such day on which banks
are open for foreign exchange business in the principal financial center of the country of such Currency. Unless specifically referenced
in this Agreement as a Business Day, all references to “days” shall be to calendar days.
“CAD”, “Canadian Dollar” or Cdn$” means the lawful currency of Canada.
“Capitalization Rate” means 6.90%.
“Capitalized Lease Obligations” means obligations under a financing lease (or other similar arrangement conveying the right to use property) to pay rent or other similar amounts that are required to be capitalized for financial reporting purposes in accordance with GAAP. The amount of a Capitalized Lease Obligation is the capitalized amount of such obligation as would be required to be reflected on a balance sheet of the applicable Person prepared in accordance with GAAP as of the applicable date.
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“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the applicable Issuing Bank or the Tranche 1 Revolving Lenders, as collateral for Letter of Credit Liabilities or obligations of Tranche 1 Revolving Lenders to fund participations in respect of Letter of Credit Liabilities, cash or deposit account balances or, if the Administrative Agent and the applicable Issuing Bank shall agree in their reasonable discretion, other credit support, in each case pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent and the applicable Issuing Bank. “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 (a) securities issued, guaranteed or insured by the United States of America or any of its agencies with maturities of not more than one year from the date acquired; (b) time deposits, certificates of deposit or bankers’ acceptances with maturities of not more than one year from the date acquired issued by any Lender (or bank holding company owning any Lender) or any other United States federal or state chartered commercial bank, or a commercial bank organized under the laws of any other country which is a member of the Organisation for Economic Cooperation and Development, or a political subdivision of any such country, acting through a branch or agency, which bank has capital and unimpaired surplus in excess of $500,000,000 and which bank or its holding company has a short-term commercial paper rating of at least A-2 or the equivalent by S&P or at least P-2 or the equivalent by Moody’s; (c) reverse repurchase agreements with terms of not more than seven days from the date acquired, for securities of the type described in clause (a) above and entered into only with commercial banks having the qualifications described in clause (b) above; (d) commercial paper issued by any Lender (or bank holding company owning any Lender) or any other Person incorporated under the laws of the United States of America or any State thereof and rated at least A-2 or the equivalent thereof by S&P or at least P-2 or the equivalent thereof by Moody’s, in each case with maturities of not more than one year from the date acquired; and (e) investments in money market funds which have net assets of at least $500,000,000 and whose assets consist primarily of securities and other obligations of the type described in clauses (a) through (d) above.
“CDOR
Rate” means, for any Interest Period with respect to a Foreign Currency Rate Loan denominated in Canadian Dollars, the rate
per annum equal to the average of the annual yield rates applicable to Canadian Dollar banker’s acceptances at or about 10:00 a.m.
(Toronto time) 2 Business Days prior to the commencement of such Interest Period as reported on the “CDOR page” (or any display
substituted therefor) of Reuters Monitor Money Rates Service (or such other page or commercially available source displaying Canadian
interbank bid rates for Canadian Dollar bankers’ acceptances as may be designated by the Administrative Agent and reasonably acceptable
to Borrower) for a term equivalent to such Interest Period (or if such Interest Period is not equal to a number of months, for a term
equivalent to the number of months closest to such Interest Period); provided that if such rate
is not available at such time for any reason, then the “CDOR Rate” for such Interest Period shall be the per annum cost of
funds quoted by the Administrative Agent to raise Canadian Dollars for such Interest Period as of 10:00 a.m., Toronto time, on the first
day of such Interest Period for commercial loans or other extensions of credit to businesses of comparable credit risk. If the CDOR Rate
for any Interest Period shall be less than zero, such rate shall be deemed to be zero for such Interest Period for all purposes of this
Agreement.
“CDOR” has the meaning given that term in the definition of “Eurocurrency Rate”.
“CDOR Rate” has the meaning given that term in the definition of “Eurocurrency Rate”.
“CHF” or “Swiss Franc” means the lawful currency of Switzerland.
“CIOR” has the meaning assigned thereto in the definition of “Eurocurrency Rate”.
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“Class” (a) when used with respect to a Revolving Commitment, refers to whether such Revolving Commitment is a Tranche 1 Revolving Commitment or Tranche 2 Revolving Commitment, (b) when used with respect to a Loan, refers to whether such Loan is a Tranche 1 Revolving Loan, a Tranche 2 Revolving Loan, a Tranche A Term Loan or a Tranche B Term Loan and (c) when used with respect to a Lender, refers to whether such Lender has a Loan or Commitment with respect to a particular Class of Loans or Commitments.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.) as amended from time to time, and any successor statute.
“Compliance Certificate” has the meaning given that term in Section 9.3.
“Conforming Changes” means, with respect to the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate”, the definition of “Business Day,” the definition of “RFR Business Day”, the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 5.4 and other technical, administrative or operational matters) that the Administrative Agent reasonably determines in consultation with the Borrower may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent reasonably decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent reasonably determines in consultation with the Borrower that no market practice for the administration of any such rate exists, in such other manner of administration as the Administrative Agent reasonably determines in consultation with the Borrower is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Continue”,
“Continuation” and “Continued” each refers to the continuation of a LIBOR
Loan or Foreign Currency Rate Loan from one Interest Period to another Interest Period pursuant to Section 2.10.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Convert”, “Conversion” and “Converted” each refers to the conversion of a Loan of one Type into a Loan of another Type pursuant to Section 2.11.
“Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §382.2(b).
“Covered Party” has the meaning given that term in Section 13.21.
“Currency” means, with respect to any Revolving Loan, Dollars or a Foreign Currency.
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“Credit Event” means any of the following: (a) the making (or deemed making) of any Loan and (b) the issuance of a Letter of Credit or the amendment of a Letter of Credit that extends the maturity, or increases the Stated Amount, of such Letter of Credit.
“Credit Rating” means the rating assigned by a Rating Agency to each series of rated senior unsecured long term indebtedness of the Borrower.
“Crest Net Subsidiaries” means Subsidiaries of Crest Net Lease, Inc. that are Deemed Taxable REIT Subsidiaries.
“Daily Simple RFR Loan” means any Loan that bears interest at a rate based on Adjusted Daily Simple RFR other than pursuant to clause (c) of the definition of “Base Rate”.
“Debtor Relief Laws” means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar Applicable Laws relating to the relief of debtors in the United States of America or other applicable jurisdictions from time to time in effect.
“Deemed Taxable REIT Subsidiary” has the meaning given that term in the definition of the term “Taxable REIT Subsidiary”.
“Default” means any of the events specified in Section 11.1., whether or not there has been satisfied any requirement for the giving of notice, the lapse of time, or both.
“Default Right” has the meaning given that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“Defaulting Lender” means, subject to Section 3.9.(f), any Lender that (a) has failed to (i) fund all or any portion of its Loans within 2 Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any Issuing Bank, the Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including, with respect to a Tranche 1 Revolving Lender, in respect of its participation in Letters of Credit or Swingline Loans) within 2 Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent, any Issuing Bank or the Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within 3 Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States of America or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 3.9.(f)) upon delivery of written notice of such determination to the Borrower, the Issuing Banks, the Swingline Lender and each Lender.
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“Derivatives Contract” means a “swap agreement” as defined in Section 101 of the Bankruptcy Code.
“Derivatives Termination Value” means, in respect of any one or more Derivatives Contracts, after taking into account the effect of any legally enforceable netting agreement or provision relating thereto, (a) for any date on or after the date such Derivatives Contracts have been terminated or closed out, the termination amount or value determined in accordance therewith, and (b) for any date prior to the date such Derivatives Contracts have been terminated or closed out, the then-current xxxx-to-market value for such Derivatives Contracts, determined based upon one or more mid-market quotations or estimates provided by any recognized dealer in Derivatives Contracts (which may include the Administrative Agent, any Lender, any Specified Derivatives Provider or any Affiliate of any of them).
“Designated Lender” means a special purpose corporation which is an Affiliate of, or sponsored by, a Tranche 1 Revolving Lender, that is engaged in making, purchasing or otherwise investing in commercial loans in the ordinary course of its business and that issues (or the parent of which issues) commercial paper rated at least P-1 (or the then equivalent grade) by Moody’s or A-1 (or the then equivalent grade) by S&P that, in either case, (a) is organized under the laws of the United States of America or any state thereof, (b) shall have become a party to this Agreement pursuant to Section 13.5.(g) and (c) is not otherwise a Lender.
“Designating Lender” has the meaning given that term in Section 13.5.(g).
“Designation Agreement” means a Designation Agreement between a Tranche 1 Revolving Lender and a Designated Lender and accepted by the Administrative Agent, substantially in the form of Exhibit C or such other form as may be agreed to by such Lender, such Designated Lender and the Administrative Agent.
“Development Property” means a Property currently under development (i) upon which a certificate of occupancy has not been obtained in accordance with Applicable Law and local building and zoning ordinances and (ii) on which the improvements (other than tenant improvements on unoccupied space) related to the development have not been substantially completed. The term “Development Property” shall include real property of the type described in the immediately preceding sentence to be (but not yet) acquired by the Borrower, any Subsidiary or any Unconsolidated Affiliate upon completion of construction pursuant to a contract in which the seller of such real property is required to develop or renovate prior to, and as a condition precedent to, such acquisition.
“Disbursement Instruction Agreement” means an agreement substantially in the form of Exhibit D to be executed and delivered by the Borrower pursuant to Section 6.1.(a), as the same may be amended, restated or modified from time to time with the prior written approval of the Administrative Agent.
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“DKK” or “Danish Krone” means the lawful currency of Denmark.
“Dollar RFR Determination Day” has the meaning given that term in the definition of “Adjusted Daily Simple RFR”.
“Dollar
Equivalent” means, atfor
any amount,
at the time (a), with respect to an amount denominatedof
determination thereof, (a) if such amount is expressed in Dollars, such amount and,
(b) with respect to any amount denominated in a Foreign Currencyif
such amount is expressed in a currency other than Dollars, the equivalent of
such amount thereof in
Dollars as determined
by the Administrative Agent at such time on the basis of the Spot Rate (as of the date of borrowing
or thefor
such currency determined in respect of the most recent Revaluation Date applicable to such
amount, as applicable) for the purchase of Dollars with such Foreign Currencycurrency.
“Dollars” or “$” means the lawful currency of the United States of America.
“EBITDA” means, with respect to a Person for any period and without duplication, the sum of (a) net income (loss) of such Person for such period determined on a consolidated basis excluding the following (but only to the extent included in determining net income (loss) for such period): (i) depreciation and amortization; (ii) interest expense; (iii) income tax expense; (iv) extraordinary, unusual or nonrecurring items, including without limitation, gains and losses from the sale of Properties (but not from the sale of Properties by any Taxable REIT Subsidiary); (v) gains and losses resulting from currency exchange effects and hedging arrangements; (vi) non-cash stock compensation costs of such Person for such period, and (vii) equity in net income (loss) of its Unconsolidated Affiliates; plus (b) such Person’s Ownership Share of EBITDA of its Unconsolidated Affiliates. EBITDA shall be adjusted to remove any impact from amortization of above and below market rent intangibles pursuant to FASB ASC 805. For purposes of this definition, nonrecurring items shall be deemed to include, but shall not be limited to, (w) gains and losses on early extinguishment of Indebtedness, (x) severance and other restructuring charges, (y) transaction costs of acquisitions, dispositions, capital markets offerings, debt financings and amendments thereto not permitted to be capitalized pursuant to GAAP and (z) non-cash impairment charges.
“Early Opt-in Effective Date” means, with respect to any Early Opt-in Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, so long as the Administrative Agent has not received, by 5:00 p.m. on the fifth (5th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders comprising the Requisite Lenders.
“Early Opt-in Election” means the occurrence of: (a) a notification by the Administrative Agent to (or the request by the Borrower to the Administrative Agent to notify) each of the other parties hereto that at least five currently outstanding Dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and (b) the joint election by the Administrative Agent and the Borrower to trigger a fallback from the Adjusted Eurocurrency Rate for Dollars and the provision by the Administrative Agent of written notice of such election to the Lenders.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
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“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Date” means the later of (a) the Agreement Date and (b) the date on which all of the conditions precedent set forth in Section 6.1. shall have been fulfilled or waived by all of the Lenders.
“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 13.5.(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under Section 13.5.(b)(iii)).
“Eligible Ground Lease” means a ground lease containing terms and conditions customarily required by mortgagees making a loan secured by the interest of the holder of the leasehold estate demised pursuant to a ground lease, including without limitation, the following: (a) a remaining term (including any unexercised extension options exercisable at the sole option of the ground lessee) of 30 years or more from the Existing Agreement Date; (b) the right of the lessee to mortgage and encumber its interest in the leased property, and to amend the terms of any such mortgage or encumbrance, in each case, without the consent of the lessor; (c) a customary obligation of the lessor to give the holder of any mortgage Lien on such leased property written notice of any defaults on the part of the lessee and agreement of such lessor that such lease will not be terminated until such holder has had a reasonable opportunity to cure or complete foreclosures, and fails to do so; (d) reasonably acceptable transferability of the lessee’s interest under such lease, including ability to sublease (provided that a provision that if a 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 shall be deemed acceptable); and (e) clearly determinable rental payment terms.
“EMU Legislation” means the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.
“Environmental Claims” means any and all administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, accusations, allegations, notices of noncompliance or violation, investigations (other than internal reports prepared by any Person in the ordinary course of business and not in response to any third party action or request of any kind) or proceedings relating in any way to any actual or alleged violation of or liability under any Environmental Law or relating to any permit issued, or any approval given, under any such Environmental Law, including, without limitation, any and all claims by Governmental Authorities for enforcement, cleanup, removal, response, remedial or other actions or damages, contribution, indemnification cost recovery, compensation or injunctive relief resulting from Hazardous Materials or arising from alleged injury or threat of injury to human health or the environment.
“Environmental Laws” means any Applicable Law relating to environmental protection or the manufacture, storage, remediation, disposal or clean-up of Hazardous Materials including, without limitation, the following: Clean Air Act, 42 U.S.C. § 7401 et seq.; Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.; Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.; Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq.; National Environmental Policy Act, 42 U.S.C. § 4321 et seq.; regulations of the Environmental Protection Agency, any applicable rule of common law and any judicial interpretation thereof relating primarily to the environment or Hazardous Materials, and any analogous or comparable state or local laws, regulations or ordinances that concern Hazardous Materials or protection of the environment.
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“Equity Interest” means, with respect to any Person, any share of capital stock of (or other ownership or profit interests in) such Person, any warrant, option or other right for the purchase or other acquisition from such Person of any share of capital stock of (or other ownership or profit interests in) such Person, whether or not certificated, any security convertible into or exchangeable for any share of capital stock of (or other ownership or profit interests in) such Person or warrant, right or option for the purchase or other acquisition from such Person of such shares (or such other interests), and any other ownership or profit interest in such Person (including, without limitation, partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such share, warrant, option, right or other interest is authorized or otherwise existing on any date of determination.
“ERISA” means the Employee Retirement Income Security Act of 1974, as in effect from time to time.
“ERISA Event” means, with respect to the ERISA Group, (a) any “reportable event” as defined in Section 4043 of ERISA with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) the withdrawal of a member of the ERISA Group from a Plan subject to Section 4063 of ERISA during a plan year in which it was a “substantial employer” as defined in Section 4001(a)(2) of ERISA that results in the imposition of liability under Section 4063 of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) the incurrence by a member of the ERISA Group of any liability with respect to the withdrawal or partial withdrawal from any Multiemployer Plan; (d) the incurrence by any member of the ERISA Group of any liability under Title IV of ERISA with respect to the termination of any Plan or Multiemployer Plan; (e) the institution of proceedings by the PBGC to terminate a Plan or Multiemployer Plan; (f) the failure by any member of the ERISA Group to make when due required contributions to a Multiemployer Plan or Plan unless such failure is cured within 30 days or the filing pursuant to Section 412(c) of the Internal Revenue Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard; (g) any other event or condition that might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan or Multiemployer Plan or the imposition of liability on any member of the ERISA Group under Section 4069 or 4212(c) of ERISA; (h) the receipt by any member of the ERISA Group of any notice or the receipt by any Multiemployer Plan from any member of the ERISA Group of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is reasonably expected to be, insolvent (within the meaning of Section 4245 of ERISA), in reorganization (within the meaning of Section 4241 of ERISA), or in “critical” status (within the meaning of Section 432 of the Internal Revenue Code or Section 305 of ERISA); (i) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any member of the ERISA Group or the imposition of any Lien upon any member of the ERISA Group in favor of the PBGC under Title IV of ERISA; or (j) a determination that a Plan is, or is reasonably expected to be, in “at risk” status (within the meaning of Section 430 of the Internal Revenue Code or Section 303 of ERISA).
“ERISA Group” means the Borrower, any Subsidiary and all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control, which, together with the Borrower or any Subsidiary, are treated as a single employer under Section 414 of the Internal Revenue Code.
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“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“EURIBOR” has the meaning assigned thereto in the definition of “Eurocurrency Rate”.
“EURIBOR Rate” has the meaning assigned thereto in the definition of “Eurocurrency Rate”.
“EUR”, “Euros” or “€” means the lawful currency of Participating Member States introduced in accordance with the EMU Legislation.
“Eurocurrency Rate” means,
(a) for any Eurocurrency Rate Loan for any Interest Period:
(i) denominated in Dollars, the greater of (A) the rate of interest per annum equal to the London interbank offered rate for deposits in Dollars (“USD LIBOR”) as administered by the IBA, or a comparable or successor administrator approved by the Administrative Agent, for a period comparable to the applicable Interest Period (in each case, the “USD LIBOR Rate”), at approximately 11:00 a.m. (London time) on the applicable Rate Determination Date; and (B) the Floor;
(ii) denominated in Euros, the greater of (A) the rate of interest per annum equal to the Euro Interbank Offered Rate (“EURIBOR”) as administered by the European Money Markets Institute, or a comparable or successor administrator approved by the Administrative Agent, for a period comparable to the applicable Interest Period (in each case, the “EURIBOR Rate”), at approximately 11:00 a.m. (Brussels time) on the applicable Rate Determination Date and (B) the Floor;
(iii) denominated in Yen, the greater of (A) the rate per annum equal to the Tokyo Interbank Offered Rate (“TIBOR”) as administered by the Ippan Xxxxxx Xxxxx JBA XXXXX Administration, or a comparable or successor administrator approved by the Administrative Agent, for a period comparable to the applicable Interest Period (in each case, the “TIBOR Rate”), at approximately 11:00 a.m. (Tokyo time) on the applicable Rate Determination Date and
(B) the Floor;
(iv) denominated in Australian Dollars, the greater of (A) the rate per annum equal to the Bank Xxxx Swap Reference Bid Rate (“BBSY”) as published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time), for a period comparable to the applicable Interest Period (in each case, the “BBSY Rate”), at approximately 10:30 a.m. (Melbourne time) on the applicable Rate Determination Date and (B) the Floor;
(v) denominated in Canadian Dollars, the greater of (A) the rate per annum equal to the rate determined by the Administrative Agent on the basis of the rate applicable to Canadian Dollar bankers’ acceptances (“CDOR”) as administered by Refinitiv Benchmarks Services (UK) Limited, or a comparable or successor administrator approved by the Administrative Agent, for a period comparable to the applicable Interest Period (in each case, the “CDOR Rate”), at approximately 10:00 a.m. (Toronto time) on the applicable Rate Determination Date and (B) the Floor;
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(vi) denominated in Pesos, the greater of (A) TIIE Rate and (B) the Floor;
(vii) denominated in Hong Kong Dollars, the greater of (A) the rate per annum equal to the Hong Kong Interbank Offered Rate (“HKIOR”) or a comparable or successor rate for deposits in Hong Kong Dollars which is approved by the Administrative Agent, as published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at or about 11:00 a.m., Hong Kong time, on the applicable Rate Determination Date and (B) the Floor;
(viii) denominated in Swedish Krona, the greater of (A) the rate per annum equal to the Stockholm Interbank Offered Rate (“SIOR”) or the successor thereto as approved by the Administrative Agent as published by NASDAQ OMX (or on any successor or substitute service providing rate quotations comparable to those currently provided by such service, as determined by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, on the applicable Rate Determination Date, as the rate for deposits in Swedish Krona with a maturity comparable to such Interest Period and (B) the Floor;
(ix) denominated in Norwegian Krone, the greater of (A) the rate per annum equal to the Norwegian Interbank Offered Rate (“NIOR”) or the successor thereto as approved by the Administrative Agent as published by Oslo Børs (or on any successor or substitute service providing rate quotations comparable to those currently provided by such service, as determined by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, on the applicable Rate Determination Date, as the rate for deposits in Norwegian Krone with a maturity comparable to such Interest Period and (B) the Floor;
(x) denominated in Danish Kroner, the greater of (A) the rate per annum equal to the Copenhagen Interbank Offered Rate (“CIOR”) administered by NASDAQ OMX (or any other Person which takes over the administration of that rate, as determined by the Administrative Agent from time to time) for Danish Kroner displayed on the appropriate page of the Reuters screen (or on the appropriate page of such other information service which publishes that rate from time to time in place of Reuters) at approximately 11:00 a.m., London time, on the applicable Rate Determination Date and (B) the Floor;
(xi) denominated in New Zealand Dollars, the greater of (A) the rate per annum equal to the Bank Xxxx Reference Bid Rate (“BBRBR”) or the successor thereto as approved by the Administrative Agent, as published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at or about 10:45 a.m. (Auckland, New Zealand time) on the applicable Rate Determination Date with a term equivalent to such Interest Period and (B) the Floor.
(b) for any rate calculation with respect to a Base Rate Loan on any date, the rate of interest per annum equal to USD LIBOR as administered by the IBA, or a comparable or successor administrator approved by the Administrative Agent, for a period comparable to one month, at approximately 11:00 a.m. (London time) two (2) Business Days prior to the date of such calculation.
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“Eurocurrency Rate Loan” means any Loan bearing interest at a rate based on the Adjusted Eurocurrency Rate other than pursuant to clause (c) of the definition of “Base Rate”.
“EurodollarEurocurrency
Reserve Percentage” means, for any day, the percentage which is in effect for such day as prescribed by the
Board of Governors of the Federal Reserve System (or any successor)FRB
for determining the maximum reserve requirement (including, without limitation,
any basic, supplemental or emergency reserves) in respect of eurocurrency liabilities or any similar category of liabilities for a member
bank of the Federal Reserve System in New York City. The
Adjusted Eurocurrency Rate for each outstanding Loan shall be adjusted automatically as of the effective date of any change in the Eurocurrency
Reserve Percentage.
“Event of Default” means any of the events specified in Section 11.1., provided that any requirement for notice or lapse of time or any other condition has been satisfied.
“Excluded Subsidiary” means any Subsidiary (a) that either (i) holds title to assets that are or are to become collateral for any Secured Indebtedness of such Subsidiary or (ii) owns Equity Interests of one or more Excluded Subsidiaries but has no assets other than such Equity Interests and other assets of nominal value (including cash) incidental thereto, and (b) that is prohibited from Guarantying the Indebtedness of any other Person pursuant to (i) any document, instrument, or agreement evidencing such Secured Indebtedness or (ii) a provision of such Subsidiary’s organizational documents which provision was included in such Subsidiary’s organizational documents as a condition to the extension of (or pursuant to the terms of) such Secured Indebtedness. In no event shall the Borrower be considered to be an Excluded Subsidiary.
“Excluded Swap Obligation” means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the liability of such Loan Party for or the Guarantee of such Loan Party of, or the grant by such Loan Party of a Lien to secure, such Swap Obligation (or any liability or guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the liability for or the Guarantee of such Loan Party or the grant of such Lien becomes effective with respect to such Swap Obligation (such determination being made after giving effect to any applicable keepwell, support or other agreement for the benefit of the applicable Loan Party, including under Section 31 of the Guaranty). If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or Lien is or becomes illegal for the reasons identified in the immediately preceding sentence of this definition.
“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 Recipient, 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 Revolving Commitment pursuant to an Applicable Law in effect on the date on which (i) such Recipient acquires such interest in the Loan or Revolving Commitment (other than pursuant to an assignment request by the Borrower under Section 5.6.) or (ii) such Recipient (if such Recipient is a Lender) changes its lending office, except in each case to the extent that, pursuant to Section 3.10., amounts with respect to such Taxes were payable either to such Recipient’s assignor immediately before such Recipient became a party hereto or to such Recipient immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.10.(g) and (d) any Taxes imposed under FATCA.
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“Existing Agreement Date” has the meaning set forth in the first recital hereof.
“Existing Credit Agreement” has the meaning set forth in the first recital hereof.
“Existing Lenders” has the meaning given that term in the first recital hereof.
“Existing Letters of Credit” means each of the letters of credit identified on Schedule 1.1.(A), if any.
“Extended Letter of Credit” has the meaning given that term in Section 2.4.(b).
“FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards Board.
“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code and any intergovernmental agreement between a non-U.S. jurisdiction and the United States of America with respect to the foregoing and any law, regulation or practice adopted pursuant to any such intergovernmental agreement.
“FCA” has the meaning assigned thereto in Section 1.3.
“Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published for such day (or, if such day is not a Business Day, for the immediately preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal Funds brokers of recognized standing selected by the Administrative Agent. If the Federal Funds Rate determined as provided above would be less than zero, the Federal Funds Rate shall be deemed to be zero.
“Federal Reserve Bank of New York’s Website” means the website of the Federal Reserve Bank of New York at xxxx://xxx.xxxxxxxxxx.xxx, or any successor source.
“Fee Letter” means that certain fee letter dated June 24, 2019, by and among the Borrower, Xxxxx Fargo and Xxxxx Fargo Securities, LLC.
“Fees” means the fees and commissions provided for or referred to in Section 3.5. and any other fees payable by the Borrower hereunder, under the Fee Letter or under any other Loan Document.
“First Amendment Date” means December 22, 2021.
“Fitch” means Fitch, Inc., and its successors.
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“Fixed Charges” means, with respect to a Person and for a given period, the sum of (a) the Interest Expense of such Person for such period, plus (b) the aggregate of all scheduled principal payments on Indebtedness made by such Person during such period (excluding balloon, bullet or similar payments of principal due upon the stated maturity of Indebtedness), plus (c) the aggregate of all dividends paid or accrued by such Person on any Preferred Stock during such period but excluding redemption payments or repurchases or charges in connection with the final redemption or repurchase in whole of any Preferred Stock, plus (d) the Reserve for Replacements for such Person’s Properties. The Borrower’s Ownership Share of the Fixed Charges of its Unconsolidated Affiliates will be included when determining the Fixed Charges of the Borrower.
“Floor” means a rate of interest equal to 0.00%.
“Foreign Currency” means any Tranche 1 Currency or Tranche 2 Currency other than Dollars.
“Foreign Currency Equivalent” means with respect to an amount denominated in Dollars, the equivalent in the applicable Foreign Currency of such amount determined at the Spot Rate for the purchase of such Foreign Currency with Dollars, as determined by the Administrative Agent on the most recent Revaluation Date applicable to such amount.
“Foreign Currency Rate Loan” means
a
Revolving (a)with respect to any Foreign Currency Rate Loan denominated in Euros, for any
Interest Period, (i) (A) the per annum rate determined by the Administrative Agent to be the rate at which deposits in Euros
appear on either (x) the Reuters Screen LIBOR 01-02 or (y) Bloomberg’s BBAM screen, in either case at approximately 11:00
a.m. (London time) on the date that is two Business Days preceding the first day of such Interest Period; provided
that if such rate does not appear on the Reuters Screen LIBOR 01-02 and Bloomberg’s BBAM Screen, the rate
shall be the per annum rate determined by the Administrative Agent to be equal to the arithmetic mean determined by Administrative Agent
(rounded upwards to the next 1/16 of one percent (1.00%)) of the per annum rates at which deposits in Euros are offered by three major
banks in the London interbank market to other lending banks in the London interbank market at approximately 11:00 a.m. (London time)
on the date that is two Business Days preceding the first day of such Interest Period, multiplied by
(B) the Statutory Reserve Rate, to the extent applicable; provided, further,
that if the Administrative Agent elects to disclose to the Borrower any such rates at which deposits in Euros are offered by any of such
three major banks in the London interbank market, then the Borrower shall maintain such rates and the identities of such major banks
on a confidential basis and any such disclosure to the Borrower may be conditioned on the execution by the Borrower of a confidentiality
agreement acceptable to Administrative Agent; or (ii) if such rate is not available at such time for any reason, the “Foreign Currency
Rate” for such Interest Period shall be (A) the rate per annum determined by the Administrative Agent to be the rate at
which deposits in Euros for delivery on the first day of such Interest Period in Same Day Funds in the approximate amount of
the Revolving Loan are being made or continued by Administrative Agent to major banks in the London interbank market for Euros at approximately
11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period, multiplied by
(B) the Statutory Reserve Rate, to the extent applicable;
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(b)
with respect to any Foreign Currency Rate Loan denominated in Yen, for any Interest
Period, the per annum rate which appears on the screen display “Reuters Screen TIBM” under the caption “TIBM Average
Rates” on the Reuters Service (or such other screen display or service as may replace it for purposes of displaying Tokyo interbank
offered rates of prime banks for Yen deposits) at approximately 11:00 a.m., Tokyo time, two Business Days prior to the commencement of
such Interest Period, as the rate for deposits in Yen with a maturity comparable to such Interest Period. If no such rate is available
on the Reuters Service (or such replacement), then the “Eurocurrency Rate” for such Interest Period shall be the interest
rate offered for Yen deposits for a period comparable to that Interest Period which appears on the screen display designated as “Euro-Xxx
XXXXX” on page 23070 of the Telerate Service published by the Japanese Banking Association (or such other screen display or service
as may replace it for purposes of displaying Tokyo interbank offered rates of prime banks for Yen deposits). If such rate is not available
on the Reuters Service (or such replacement) or the Telerate Screen (or such replacement), then the “Foreign Currency Rate”
for such Interest Period shall be the rate per annum at which the Administrative Agent was offering to leading banks in the Tokyo interbank
market deposits in Yen for a period equal to the applicable Interest Period at approximately 11:00 a.m., Tokyo time, two Business Days
prior to the commencement of such Interest Period. If such rate is not available on the Reuters Service (or such replacement) or the
Telerate Screen (or such replacement) and the Administrative Agent is unable to provide a rate referred to in the sentence above, then
the “Foreign Currency Rate” for such Interest Period shall be the rate which is applied by the Administrative Agent in Japan
as its long-term prime lending rate on the relevant date to its Yen loans with terms exceeding one year to its prime customers in Japan
and which the Administrative Agent confirms and notifies the Borrower in writing as such;a
Foreign Currency.
(c)
with respect to any Foreign Currency Rate Loan denominated in Sterling, for any Interest Period, the per annum rate of
interest equal to: (i) (A) the per annum rate determined by the Administrative Agent to be the rate at which deposits in Sterling
appear on either (x) the Reuters Screen LIBOR 01-02 or (y) Bloomberg’s BBAM screen, in either case at approximately 11:00 a.m.
(London time) on the first day of such Foreign Currency Interest Period; provided that if such
rate does not appear on the Reuters Screen LIBOR 01-02 and Bloomberg’s BBAM Screen, the rate shall be the per annum rate determined
by the Administrative Agent to be equal to the arithmetic mean determined by Administrative Agent (rounded upwards to the next 1/16 of
one percent (1.00%)) of the per annum rates at which deposits in Sterling are offered by three major banks in the London interbank market
to other lending banks in the London interbank market at approximately 11:00 a.m. (London time) on the first day of such Interest Period,
multiplied by (B) the Statutory Reserve Rate, to the extent applicable; provided, further,
that if Administrative Agent elects to disclose to the Borrower any such rates at which deposits in Sterling are offered by any of such
three major banks in the London interbank market, then the Borrower shall maintain such rates and the identities of such major banks
on a confidential basis and any such disclosure to the Borrower may be conditioned on the execution by the Borrower of a confidentiality
agreement acceptable to Administrative Agent; or (ii) if such rate is not available at such time for any reason, the “Foreign Currency
Rate” for such Interest Period shall be (A) the rate per annum determined by the Administrative Agent to be the rate at which deposits
in Sterling for delivery on the first day of such Interest Period in Same Day Funds in the approximate amount of the Foreign Currency
Advance are being made or continued by Administrative Agent to major banks in the London interbank market for Sterling at approximately
11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period, multiplied by
(B) the Statutory Reserve Rate, to the extent applicable;
(d)
with respect to any Foreign Currency Rate Loan denominated in Canadian Dollars, for any Interest Period, the CDOR Rate;
(e)
with respect to any Foreign Currency Rate Loan denominated in Pesos, for any Interest Period, the TIIE Rate;
(f)
with respect to any Foreign Currency Rate Loan denominated in Swiss Francs, for any Interest Period, LIBOR;
(g)
with respect to any Foreign Currency Rate Loan denominated in Australian Dollars, for any Interest Period, the rate per annum
equal to the Australian Bank Xxxx Swap Bid Rate or the successor thereto as approved by the Administrative Agent as published by Bloomberg
(or on any successor or substitute service providing rate quotations comparable to those currently provided by such service, as determined
by the Administrative Agent from time to time) at approximately 10:00 a.m., Sydney, Australia time, two Business Days prior to the commencement
of such Interest Period, as the rate for deposits in Australian Dollars with a maturity comparable to such Interest Period; provided
that if such rate is not available at such time for any reason, the Administrative Agent may substitute such rate
with a reasonably acceptable alternative published interest rate that adequately reflects the all-in-cost of funds to the Administrative
Agent for funding such Foreign Currency Rate Loan in Australian Dollars;
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(h)
with respect to any Foreign Currency Rate Loan denominated in Hong Kong Dollars, for any Interest Period, the rate per annum equal
to the Hong Kong Interbank Offered Rate or a comparable or successor rate for deposits in Hong Kong Dollars which is approved
by the Administrative Agent, as published on the applicable Reuters screen page (or such other commercially available source
providing such quotations as may be designated by the Administrative Agent from time to time) at or about 11:00 a.m., Hong Kong time,
two Business Days prior to the commencement of such Interest Period with a term equivalent to such Interest Period; provided
that if such rate is not available at such time for any reason, the Administrative Agent may substitute such rate
with a reasonably acceptable alternative published interest rate that adequately reflects the all-in-cost of funds to the Administrative
Agent for funding such Foreign Currency Rate Loans in Hong Kong Dollars;
(i)
with respect to any Foreign Currency Rate Loan denominated in Singapore Dollars, for any Interest Period, the rate per annum equal
to the Singapore Interbank Offered Rate or a comparable or successor rate for deposits in Singapore Dollars which is approved by the
Administrative Agent, as published on the applicable Reuters screen page (or such other commercially available source providing such
quotations as may be designated by the Administrative Agent from time to time) at or about 11:00 a.m., Singapore time, two Business Days
prior to the commencement of such Interest Period with a term equivalent to such Interest Period; provided
that if such rate is not available at such time for any reason, the Administrative Agent may substitute such rate with a reasonably
acceptable alternative published interest rate that adequately reflects the all-in-cost of funds to the Administrative Agent
for funding such Foreign Currency Rate Loans in Singapore Dollars;
(j)
with respect to any Foreign Currency Rate Loan denominated in Swedish Krona, for any Interest Period, the rate per annum equal
to the Stockholm Interbank Offered Rate or the successor thereto as approved by the Administrative Agent as published by NASDAQ OMX (or
on any successor or substitute service providing rate quotations comparable to those currently provided by such service, as determined
by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement
of such Interest Period, as the rate for deposits in Swedish Krona with a maturity comparable to such Interest Period; provided
that if such rate is not available at such time for any reason, the Administrative Agent may substitute such rate with a
reasonably acceptable alternative published interest rate that adequately reflects the all-in-cost of funds to the Administrative Agent
for funding such Foreign Currency Rate Loans in Swedish Krona;
(k)
with respect to any Foreign Currency Rate Loan denominated in Norwegian Krone, for any Interest Period, the rate per annum equal
to the Norwegian Interbank Offered Rate or the successor thereto as approved by the Administrative Agent as published by Oslo Børs
(or on any successor or substitute service providing rate quotations comparable to those currently provided by such service, as determined
by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement
of such Interest Period, as the rate for deposits in Norwegian Krone with a maturity comparable to such Interest Period; provided
that if such rate is not available at such time for any reason, the Administrative Agent may substitute such rate
with a reasonably acceptable alternative published interest rate that adequately reflects the all-in-cost of funds to the Administrative
Agent for funding such Foreign Currency Rate Loans in Norwegian Krone;
(l) with
respect to any Foreign Currency Rate Loan denominated in Danish Kroner, for any Interest Period, the rate per annum equal to the
Copenhagen Interbank Offered Rate administered by NASDAQ OMX (or any other Person which takes over the administration of that rate,
as determined by the Administrative Agent from time to time) for Danish Kroner displayed on the appropriate page of the Reuters
screen (or on the appropriate page of such other information service which publishes that rate from time to time in place
of Reuters) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period; provided that
if such rate is not available at such time for any reason, the Administrative Agent may substitute such rate with a reasonably
acceptable alternative published interest rate that adequately reflects the all-in-cost of funds to the Administrative Agent for
funding such Foreign Currency Rate Loans in Danish Kroner; and
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(m)
with respect to any Foreign Currency Rate Loan denominated in New Zealand Dollars, for any Interest Period, the rate per annum equal
to the Bank Xxxx Reference Bid Rate or the successor thereto as approved by the Administrative Agent, as published on the applicable
Reuters screen page (or such other commercially available source providing such quotations as may be designated by the
Administrative Agent from time to time) at or about 10:45 a.m. (Auckland, New Zealand time) two Business Days prior to the
commencement of such Interest Period with a term equivalent to such Interest Period; provided that
if such rate is not available at such time for any reason, the Administrative Agent may substitute such rate with a reasonably
acceptable alternative published interest rate that adequately reflects the all-in-cost of funds to the Administrative Agent for
funding such Foreign Currency Rate Loans in New Zealand Dollars. Notwithstanding the foregoing, in no event shall the Foreign
Currency Rate for any Foreign Currency Rate Loan be less than zero.
“Foreign
Currency Rate Loan” means a Revolving Loan bearing interest at a rate based on the Foreign Currency Rate.
“Foreign Lender” means a Lender that is resident or organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.
“Foreign Subsidiary” means a Subsidiary not formed under the laws of the United States of America, any state thereof or the District of Columbia.
“FRB” means the Board of Governors of the Federal Reserve System of the United States.
“Fronting Exposure” means, at any time there is a Defaulting Lender that is a Tranche 1 Revolving Lender, (a) with respect to each Issuing Bank, such Defaulting Lender’s Tranche 1 Revolving Commitment Percentage of the outstanding Letter of Credit Liabilities attributable to such Issuing Bank other than Letter of Credit Liabilities as to which such Defaulting Lender’s participation obligation has been reallocated to other Tranche 1 Revolving Lenders or Cash Collateralized by such Defaulting Lender or by the Borrower in accordance with the terms hereof, and (b) with respect to the Swingline Lender, such Defaulting Lender’s Tranche 1 Revolving Commitment Percentage of outstanding Swingline Loans other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Tranche 1 Revolving Lenders.
“Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
“Funds From Operations” means net income available to common stockholders (computed in accordance with GAAP), plus depreciation, amortization and impairments, but excluding gains on the sale of investment properties from “continuing operations” and “discontinued operations” (as indicated on the consolidated statements of income (and accompanying notes) of the Borrower) (it being agreed that gains or losses on sales by Crest Net Lease, Inc., the Crest Net Subsidiaries and any Taxable REIT Subsidiary are not extraordinary or non-recurring and should be included in Funds From Operations) and after adjustments for unconsolidated partnerships and joint ventures. Adjustments for unconsolidated partnerships and joint ventures will be calculated to reflect funds from operations on the same basis. Funds From Operations shall be calculated consistent with the National Association of Real Estate Investments Trusts, Inc. (“NAREIT”) as of the Existing Agreement Date, but without giving effect to any supplements, amendments or other modifications promulgated after the Existing Agreement Date.
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“GAAP” means generally accepted accounting principles in the United States of America set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (including Statement of Financial Accounting Standards No. 168, “The FASB Accounting Standards Codification”) or in such other statements by such other entity as may be approved by a significant segment of the accounting profession in the United States of America, which are applicable to the circumstances as of the date of determination.
“GBP” “Sterling” or “£” means the lawful currency of the United Kingdom.
“Governmental Approvals” means all authorizations, consents, approvals, licenses and exemptions of, registrations and filings with, and reports to, all Governmental Authorities.
“Governmental Authority” means any national, state or local government (whether domestic or foreign), any political subdivision thereof or any other governmental, quasi-governmental, judicial, administrative, public or statutory instrumentality, authority, body, agency, bureau, commission, board, department or other comparable authority (including, without limitation, the Federal Deposit Insurance Corporation, the Comptroller of the Currency or the Federal Reserve Board, any central bank or any comparable authority) exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank), or any arbitrator with authority to bind a party at law.
“Gross Asset Value” means, at a given time, the sum (without duplication) of (a) (i) the aggregate Net Operating Income for all Properties (other than Development Properties and land held for development) owned by the Borrower or any of its Subsidiaries for the entire period of four consecutive fiscal quarters of the Borrower most recently ended divided by (ii) the Capitalization Rate, plus (b) all cash, Cash Equivalents (excluding tenant deposits and other cash and Cash Equivalents the disposition of which is restricted but including (x) fully refundable xxxxxxx money deposits associated with potential acquisitions and (y) Unrestricted 1031 Cash) and marketable securities of the Borrower and its Subsidiaries at such time, plus (c) the current GAAP book value of all Development Properties and all land held for development, plus (d) the purchase price paid by the Borrower or any Subsidiary (less any amounts paid to the Borrower or such Subsidiary as a purchase price adjustment, held in escrow, retained as a contingency reserve, or in connection with other similar arrangements) for any Property (other than a Development Property) acquired by the Borrower or such Subsidiary during the immediately preceding period of four consecutive fiscal quarters of the Borrower most recently ended, plus (e) the GAAP book value of all Mortgage Receivables, plus (f) contractual purchase price of Properties of the Borrower and its Subsidiaries subject to purchase obligations, repurchase obligations, forward commitments and unfunded obligations to the extent such obligations and commitments are included in determinations of Total Liabilities, plus (g) the GAAP book value (exclusive of accumulated depreciation) of the corporate headquarters of the Borrower located at 11975/11995 Xx Xxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx 00000 so long as the Borrower or a Subsidiary thereof owns such Property. The Borrower’s Ownership Share of assets held by Unconsolidated Affiliates (excluding assets of the type described in the immediately preceding clause (b)) will be included in the calculation of Gross Asset Value consistent with the above described treatment for wholly owned assets. To the extent that more than (x) 30.0% of the Gross Asset Value would be attributable to Unimproved Land, Equity Interests in Persons that are not Subsidiaries and Mortgage Receivables, such excess shall be excluded and (y) 15.0% of Gross Asset Value would be attributable to Development Properties of the Borrower and its Subsidiaries, such excess shall be excluded. For purposes of this definition, if a Property to be included in the determination of Gross Asset Value under the immediately preceding clause (a) has not generated Net Operating Income for the entire period of four consecutive fiscal quarters of the Borrower most recently ended because the Property ceased to be a Development Property during such period, then the Net Operating Income for such Property shall be annualized for such period in a manner acceptable to the Administrative Agent.
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“Guaranteed Obligations” means, collectively, (a) the Obligations and (b) all existing or future payment and other obligations owing by any Loan Party under any Specified Derivatives Contract (other than any Excluded Swap Obligation).
“Guarantor” means any Person that is a party to the Guaranty as a “Guarantor”.
“Guaranty”, “Guaranteed” or to “Guarantee” as applied to any obligation means and includes: (a) a guaranty (other than by endorsement of negotiable instruments for collection in the ordinary course of business), directly or indirectly, in any manner, of any part or all of such obligation, or (b) an agreement, direct or indirect, contingent or otherwise, and whether or not constituting a guaranty, the practical effect of which is to assure the payment or performance (or payment of damages in the event of nonperformance) of any part or all of such obligation whether by: (i) the purchase of securities or obligations, (ii) the purchase, sale or lease (as lessee or lessor) of property or the purchase or sale of services primarily for the purpose of enabling the obligor with respect to such obligation to make any payment or performance (or payment of damages in the event of nonperformance) of or on account of any part or all of such obligation, or to assure the owner of such obligation against loss, (iii) the supplying of funds to or in any other manner investing in the obligor with respect to such obligation, (iv) repayment of amounts drawn down by beneficiaries of letters of credit (including Letters of Credit), or (v) the supplying of funds to or investing in a Person on account of all or any part of such Person’s obligation under a Guaranty of any obligation or indemnifying or holding harmless, in any way, such Person against any part or all of such obligation. As the context requires, “Guaranty” shall also mean the guaranty executed and delivered pursuant to Section 6.1. or Section 8.14. and substantially in the form of Exhibit E.
“Hazardous Materials” means all or any of the following: (a) substances that are defined or listed in, or otherwise classified pursuant to, any applicable Environmental Laws as “hazardous substances”, “hazardous materials”, “hazardous wastes”, “toxic substances” or any other formulation intended to define, list or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity, “TCLP” toxicity, or “EP toxicity”; (b) oil, petroleum or petroleum derived substances, natural gas, natural gas liquids or synthetic gas and drilling fluids, produced waters and other wastes associated with the exploration, development or production of crude oil, natural gas or geothermal resources; (c) any flammable substances or explosives or any radioactive materials; (d) asbestos in any form; (e) toxic mold; and (f) electrical equipment which contains any oil or dielectric fluid containing levels of polychlorinated biphenyls in excess of fifty parts per million.
“HKD”, “Hong Kong Dollars” or “HK$” means the lawful currency of Hong Kong.
“HKIOR” has the meaning assigned thereto in the definition of “Eurocurrency Rate”.
“IBA” has the meaning assigned thereto in Section 1.3.
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“Indebtedness” means, with respect to a Person, at the time of computation thereof, all of the following (without duplication): (a) all obligations of such Person in respect of money borrowed; (b) all obligations of such Person (other than (A) trade debt incurred in the ordinary course of business and (B) any earnout obligation until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP (excluding disclosure on the notes and footnotes thereto) and if not paid after becoming due and payable), whether or not for money borrowed (i) represented by notes payable, or drafts accepted, in each case representing extensions of credit, (ii) evidenced by bonds, debentures, notes or similar instruments, or (iii) constituting purchase money indebtedness, conditional sales contracts, title retention debt instruments or other similar instruments, upon which interest charges are customarily paid or that are issued or assumed as full or partial payment for property or for services rendered; (c) Capitalized Lease Obligations of such Person; (d) all reimbursement obligations (contingent or otherwise) of such Person under or in respect of any letters of credit or acceptances (whether or not the same have been presented for payment); (e) all Off-Balance Sheet Obligations of such Person; (f) net obligations under any Derivative Contract in an amount equal to the Derivatives Termination Value thereof (but, for the avoidance of doubt, Indebtedness of the Borrower shall not include any agreement, commitment or arrangement for the sale of Equity Interests issued by the Borrower at a future date that could be discharged solely by (A) delivery of the Borrower’s Equity Interests (other than Mandatorily Redeemable Stock), or, (B) solely at the Borrower’s option made at any time, payment of the net cash value of such Equity Interests at the time, irrespective of the form or duration of such agreement, commitment or arrangement; provided, however, that during the period of time, if any, following an election by the Borrower to pay the net cash value of such Equity Interest and prior to payment of such net cash value, the obligation to pay such net cash value shall be included as “Indebtedness” hereunder (it being understood and agreed that the amount of such Indebtedness shall be calculated based on the closing price of the Borrower’s Equity Interests on the date of such election, irrespective of the market price of the Borrower’s Equity Interests at any time following such election, including at the time of payment)); (g) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Mandatorily Redeemable Stock issued by such Person or any other Person, valued at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; and (h) all Indebtedness of other Persons which (i) such Person has Guaranteed or is otherwise recourse to such Person (except for guaranties of exceptions to non-recourse liability described in the definition of “Nonrecourse Indebtedness”) or (ii) is secured by a Lien on any property of such Person (valued in the case of this clause (ii) at the lesser of (A) the aggregate unpaid amount of such Indebtedness and (B) if such Indebtedness is non-recourse, the fair market value of the property encumbered thereby as determined by such Person in good faith). All Loans and Letter of Credit Liabilities shall constitute Indebtedness of the Borrower.
“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 the Borrower or any other Loan Party under any Loan Document and (b) to the extent not otherwise described in the immediately preceding clause (a), Other Taxes.
“Intellectual Property” has the meaning given that term in Section 7.1.(s).
“Interest Expense” means, with respect to a Person and for any period, (a) all paid, accrued or capitalized interest expense (including, without limitation, capitalized interest expense and interest expense attributable to Capitalized Lease Obligations) of such Person and in any event shall include all letter of credit fees and all interest expense with respect to any Indebtedness in respect of which such Person is wholly or partially liable whether pursuant to any repayment, interest carry, performance Guarantee or otherwise, plus (b) to the extent not already included in the foregoing clause (a) such Person’s Ownership Share of all paid, accrued or capitalized interest expense for such period of Unconsolidated Affiliates of such Person; provided, that Interest Expense shall not include (i) capitalized interest funded from a construction loan interest reserve account held by another lender and not included in the calculation of cash for balance sheet reporting purposes, (ii) commitment or arrangement fees, (iii) premiums or penalties (including, without limitation, any make-whole payments associated with the early repayment, redemption or defeasance of Indebtedness) or (iv) upfront and one-time financing fees, including amortization of original issue discount.
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“Interest Period” means:
(a)
with respect to each LIBOREurocurrency
Rate Loan and Foreign Currency RateTerm
RFR Loan, each period commencing on the date such Loan is made, or in the case of the Continuation of a Loan the last day
of the preceding Interest Period for such Loan, and ending on the numerically corresponding day in the first, third or (except
with respect to any Loan bearing interest based on the CDOR Rate) sixth calendar month thereafter, as the Borrower may select
in a Notice of Revolving Borrowing, Notice of Continuation or Notice of Conversion, as the case may be, provided that (i) each
Interest Period for such Loan that commences on the last Business Day of a calendar month (or on any day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall end on the last Business Day of the appropriate subsequent calendar
month, and (ii) each Interest Period that would otherwise end on a day which is not a Business Day shall end on the immediately following
Business Day (or, if such immediately following Business Day falls in the next calendar month, on the immediately preceding Business
Day); and
(b) with respect to each Bid Rate Loan, the period commencing on the date such Bid Rate Loan is made and ending on the numerically corresponding day (or, if there is no numerically corresponding day, on the last Business Day) in the first, second, third or sixth calendar month thereafter, as the Borrower may select as provided in a Bid Rate Quote Request.
Notwithstanding the foregoing, if any Interest Period for a Class of Loans would otherwise end after the Termination Date for such Class, such Interest Period shall end on such Termination Date.
“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended.
“Investment” means, with respect to any Person, any acquisition or investment (whether or not of a controlling interest) by such Person, whether by means of any of the following: (a) the purchase or other acquisition of any Equity Interest in another Person, (b) a loan, advance or extension of credit to, capital contribution to, Guaranty of Indebtedness of, or purchase or other acquisition of any Indebtedness of, another Person, including any partnership or joint venture interest in such other Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute the business or a division or operating unit of another Person. Except as expressly provided otherwise, for purposes of determining compliance with any covenant contained in a Loan Document, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment but determined net of all payments constituting returns of invested capital received in respect of such Investment and, in the case of a guaranty or similar obligation, such Investment will be reduced to the extent the exposure under such guaranty or similar obligation is reduced.
“Investment Grade Rating” means a Credit Rating of BBB- or higher by S&P or Fitch, or Baa3 or higher by Xxxxx’x.
“IRS” means the Internal Revenue Service.
“ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).
“Issuing Bank” means each of Xxxxx Fargo, Bank of America, N.A., Royal Bank of Canada, Regions Bank and JPMorgan Chase Bank, N.A., in its capacity as an issuer of Letters of Credit pursuant to Section 2.4.
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“JPY”, “Yen” or “¥” means the lawful currency of Japan.
“L/C Commitment Amount” has the meaning given to that term in Section 2.4.(a).
“L/C Disbursement” has the meaning given to that term in Section 3.9.(b).
“Lender” means each financial institution from time to time party hereto as a “Lender” or a “Designated Lender,” together with its respective successors and permitted assigns, and, as the context requires, includes the Swingline Lender; provided, however, that the term “Lender” (i) shall exclude each Designated Lender when used in reference to any Loan other than a Bid Rate Loan, the Revolving Commitments or terms relating to any Loan other than a Bid Rate Loan and shall further exclude each Designated Lender for all other purposes under the Loan Documents except that any Designated Lender which funds a Bid Rate Loan shall, subject to Section 13.5.(d), have only the rights (including the rights given to a Lender contained in Sections 13.2. and 13.9.) and obligations of a Lender associated with holding such Bid Rate Loan and (ii) except as otherwise expressly provided herein, shall exclude any Lender (or its Affiliates) in its capacity as a Specified Derivatives Provider.
“Lender Parties” means, collectively, the Administrative Agent, the Lenders, the Issuing Banks, each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 12.2., any other holder from time to time of any of any Obligations and, in each case, their respective successors and permitted assigns.
“Lending Office” means, for each Lender and for each Type of Loan, the office of such Lender specified in such Lender’s Administrative Questionnaire or in the applicable Assignment and Assumption, or such other office of such Lender as such Lender may notify the Administrative Agent in writing from time to time.
“Letter of Credit” has the meaning given that term in Section 2.4.(a).
“Letter of Credit Collateral Account” means a special deposit account maintained by the Administrative Agent, for the benefit of the Administrative Agent, the Issuing Banks and the Tranche 1 Revolving Lenders, and under the sole dominion and control of the Administrative Agent.
“Letter of Credit Documents” means, with respect to any Letter of Credit, collectively, any application therefor, any certificate or other document presented in connection with a drawing under such Letter of Credit and any other agreement, instrument or other document governing or providing for
(a) the rights and obligations of the parties concerned or at risk with respect to such Letter of Credit or
(b) any collateral security for any of such obligations.
“Letter of Credit Liabilities” means, without duplication, at any time and in respect of any Letter of Credit (a) the Stated Amount of such Letter of Credit plus (b) the aggregate unpaid principal amount of all Reimbursement Obligations of the Borrower at such time due and payable in respect of all drawings made under such Letter of Credit. For purposes of this Agreement, (i) a Tranche 1 Revolving Lender (other than a Lender in its capacity as an Issuing Bank of a Letter of Credit) shall be deemed to hold a Letter of Credit Liability in an amount equal to its participation interest under Section 2.4. in such Letter of Credit, and the Lender that is the Issuing Bank of such Letter of Credit shall be deemed to hold a Letter of Credit Liability in an amount equal to its retained interest in such Letter of Credit after giving effect to the acquisition by the Tranche 1 Revolving Lenders (other than the Lender then acting as the Issuing Bank of such Letter of Credit) of their participation interests under such Section and (ii) if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
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“Level” has the meaning given that term in the definition of the term “Applicable Margin.”
“LIBOR”
means, subject to implementation of a Replacement Rate in accordance with Section 5.2.(c), with respect to any LIBOR Loan or Foreign
Currency Rate Loan described in clause (f) of the definition of “Foreign Currency Rate”, for any Interest Period, the
rate of interest obtained by dividing (i) the rate of interest per annum determined on the basis of the rate for deposits
in Dollars for a period equal to the applicable Interest Period as published by the ICE Benchmark Administration Limited, a
United Kingdom Company, or a comparable or successor quoting service reasonably approved by the Administrative Agent, at
approximately 11:00 a.m. (London time) two Business Days prior to the first day of the applicable Interest Period by (ii)
a percentage equal to 1 minus the Eurodollar Reserve Percentage; provided that
with respect to any Foreign Currency Rate Loan described in clause (f) of the definition of “Foreign Currency Rate”,
LIBOR shall be determined without dividing the amount in clause (i) above by the amount in clause (ii) above (i.e. without reference
to the Eurodollar Reserve Percentage). If, for any reason, the rate referred to in the preceding clause (i) is not so published,
then the rate to be used for such clause (i) shall be determined by the Administrative Agent to be the arithmetic average
of the rate per annum at which deposits in Dollars would be offered by first class banks in the London
interbank market to the Administrative Agent at approximately 11:00 a.m. (London time) two Business Days prior to the first day of
the applicable Interest Period for a period equal to such Interest Period. Any change in the Eurodollar Reserve Percentage shall
result in a change in LIBOR on the date on which such change in the Eurodollar Reserve Percentage becomes effective. Notwithstanding
the foregoing, (x) in no event shall LIBOR (including, without limitation, any Replacement Rate with respect thereto) be less than zero
and (y) unless otherwise specified in any amendment to this Agreement entered into in accordance with Section 5.2.(c), in
the event that a Replacement Rate with respect to LIBOR is implemented then all references herein to LIBOR shall be deemed
references to such Replacement Rate.
“LIBOR Auction” means a solicitation of Bid Rate Quotes setting forth LIBOR Margin Loans based on USD LIBOR pursuant to Section 2.3.
“LIBOR
Loan” means a Revolving Loan (other than a Foreign Currency Rate Loan) or Term Loan (or any portion thereof) (other than a
Base Rate Loan) bearing interest at a rate based on LIBOR.
“LIBOR Margin” has the meaning given that term in Section 2.3.(c)(ii)(D).
“LIBOR Margin Loan” means a Bid Rate Loan the interest rate on which is determined on the basis of USD LIBOR pursuant to a LIBOR Auction.
“LIBOR Market Index
Rate” means, for any day, USD
LIBOR as of that day that would be applicable for a LIBOREurocurrency
Rate Loan having a one-month Interest Period determined at approximately 8:00 a.m. Pacific time on such day (rather than 11:00
a.m. (London time) two Business Days prior to the first day of such Interest Period as otherwise provided
in the definition of “LIBOR”), or if such day is not a Business Day, the immediately preceding Business Day.
The LIBOR Market Index Rate shall be determined on a daily basis.
“Lien” as applied to the property of any Person means: (a) any security interest, encumbrance, mortgage, deed to secure debt, deed of trust, assignment of leases and rents, pledge, lien, hypothecation, assignment, charge or lease constituting a Capitalized Lease Obligation, conditional sale or other title retention agreement, or other security title or encumbrance of any kind in respect of any property of such Person, or upon the income, rents or profits therefrom; and (b) any arrangement, express or implied, under which any property of such Person is transferred, sequestered or otherwise identified for the purpose of subjecting the same to the payment of Indebtedness or performance of any other obligation in priority to the payment of the general, unsecured creditors of such Person.
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“Loan” means a Revolving Loan, a Term Loan, a Bid Rate Loan or a Swingline Loan, as the context may require.
“Loan Document” means this Agreement, each Note, the Guaranty (if in effect), each Letter of Credit Document, the Fee Letter and each other document or instrument now or hereafter executed and delivered by a Loan Party in connection with, pursuant to or relating to this Agreement (other than any Specified Derivatives Contract).
“Loan Party” means each of the Borrower, each other Person who guarantees all or a portion of the Obligations and/or who pledges any collateral to secure all or a portion of the Obligations. Schedule 1.1.(B) sets forth the Loan Parties in addition to the Borrower as of the Existing Agreement Date.
“Mandatorily Redeemable Stock” means, with respect to any Person, any Equity Interest of such Person which by the terms of such Equity Interest (or by the terms of any security into which it is convertible or for which it is exchangeable or exercisable), upon the happening of any event or otherwise, (a) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise (other than an Equity Interest to the extent redeemable in exchange for common stock or other equivalent common Equity Interests at the option of the issuer of such Equity Interest), (b) is convertible into or exchangeable or exercisable for Indebtedness or Mandatorily Redeemable Stock, or (c) is redeemable at the option of the holder thereof, in whole or in part (other than an Equity Interest which is redeemable solely in exchange for common stock or other equivalent common Equity Interests), in the case of each of clauses (a) through (c), on or prior to the latest Termination Date for any Class of Loans.
“Material Acquisition” means any acquisition by the Borrower or any Subsidiary in which the value of the assets acquired exceed $1,500,000,000.
“Material Adverse Effect” means a materially adverse effect on (a) the business, assets, liabilities, financial condition or results of operations of the Borrower and its Subsidiaries taken as a whole, (b) the ability of the Borrower and the other Loan Parties, taken as a whole, to perform their obligations under the Loan Documents, (c) the validity or enforceability of any of the Loan Documents, or (d) the rights and remedies, taken as a whole, of the Lenders, the Issuing Banks and the Administrative Agent under any of the Loan Documents.
“Material Contract” means any contract or other arrangement (other than Loan Documents and Specified Derivatives Contracts), whether written or oral, to which the Borrower, any Subsidiary or any other Loan Party is a party as to which the breach, nonperformance, cancellation or failure to renew by any party thereto could reasonably be expected to have a Material Adverse Effect.
“Moody’s” means Xxxxx’x Investors Service, Inc. and its successors.
“Mortgage” means a mortgage, deed of trust, deed to secure debt or similar security instrument made by a Person owning an interest in real estate granting a Lien on such interest in real estate as security for the payment of Indebtedness.
“Mortgage Receivable” means a promissory note secured by a Mortgage of which the Borrower or a Subsidiary is the holder and retains the rights of collection of all payments thereunder.
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“Multiemployer Plan” means at any time a multiemployer plan within the meaning of Section 4001(a)(3) of ERISA to which any member of the ERISA Group is then making or accruing an obligation to make contributions or has within the preceding six plan years made contributions, including for these purposes any Person which ceased to be a member of the ERISA Group during such six-year period.
“MXN”, “Peso” or “Ps$” means the lawful currency of Mexico.
“Negative Pledge” means, with respect to a given asset, any provision of a document, instrument or agreement (other than any Loan Document or any Specified Derivatives Contract) which prohibits or purports to prohibit the creation or assumption of any Lien on such asset as security for Indebtedness of the Person owning such asset or any other Person; provided, however, that any provision of a document, instrument or an agreement that either (a) conditions a Person’s ability to encumber its assets upon the maintenance of one or more specified ratios or financial tests (including any financial ratio such as a maximum ratio of unsecured debt to unencumbered assets) that limit such Person’s ability to encumber its assets but that do not generally prohibit the encumbrance of its assets, or the encumbrance of specific assets or (b) requires the grant of a Lien to secure Unsecured Indebtedness if a Lien is granted to secure the Obligations or other Unsecured Indebtedness of such Person, shall not constitute a “Negative Pledge”.
“Net Operating Income” or “NOI” means, for any Property and for a given period, the sum (without duplication) of (a) rents and other revenues received in the ordinary course from such Property (excluding pre-paid rents and revenues and security deposits except to the extent applied in satisfaction of tenants’ obligations for rent) minus (b) all expenses paid or accrued by the Borrower and its Subsidiaries and related to the ownership, operation or maintenance of such Property (other than those expenses normally covered by a management fee), including but not limited to, taxes, assessments and the like, insurance, utilities, payroll costs, maintenance, repair and landscaping expenses, marketing expenses, and general and administrative expenses (including an appropriate allocation for legal, accounting, advertising, marketing and other expenses incurred in connection with such Property, but specifically excluding depreciation and general overhead expenses of the Borrower and its Subsidiaries) minus (c) the Reserve for Replacements for such Property for such period minus (d) the greater of (i) the actual property management fee paid during such period with respect to such Property and (ii) an imputed management fee in an amount equal to 1% of the gross revenues for such Property for such period, all as determined in accordance with GAAP.
“NIOR” has the meaning assigned thereto in the definition of “Eurocurrency Rate”.
“NOK” or “Norwegian Krone” means the lawful currency of Norway.
“Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all or all affected Lenders (or all Lenders of a Class or all affected Lenders of a Class) in accordance with the terms of Section 13.6. and (b) has been approved by the Requisite Lenders and, in the case of amendments that require the approval of all or all affected Lenders of a particular Class, Requisite Class Lenders of such Class.
“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
“Nonrecourse Indebtedness” means, with respect to a Person, (a) Indebtedness for borrowed money in respect of which recourse for payment (except for customary exceptions for fraud, misapplication of funds, environmental indemnities, voluntary bankruptcy, collusive involuntary bankruptcy and other similar customary exceptions to nonrecourse liability) is contractually limited to specific assets of such Person encumbered by a Lien securing such Indebtedness and (b) if such Person is a Single Asset Entity, any Indebtedness for borrowed money of such Person.
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“Note” means a Revolving Note, Term Note, a Bid Rate Note or a Swingline Note, as the context may require.
“Notice
of Continuation” means a notice substantially in the form of Exhibit F (or such other form reasonably acceptable to the Administrative
Agent and containing the information required in such Exhibit) to be delivered to the Administrative Agent pursuant to Section 2.10.
evidencing the Borrower’s request for the Continuation of a LIBOR Loan or Foreign Currency Rate
Loan.
“Notice of Conversion” means a notice substantially in the form of Exhibit G (or such other form reasonably acceptable to the Administrative Agent and containing the information required in such Exhibit) to be delivered to the Administrative Agent pursuant to Section 2.11. evidencing the Borrower’s request for the Conversion of a Loan from one Type to another Type.
“Notice of Revolving Borrowing” means a notice substantially in the form of Exhibit H (or such other form reasonably acceptable to the Administrative Agent and containing the information required in such Exhibit) to be delivered to the Administrative Agent pursuant to Section 2.1.(b) evidencing the Borrower’s request for a borrowing of Revolving Loans.
“Notice of Swingline Borrowing” means a notice substantially in the form of Exhibit I (or such other form reasonably acceptable to the Administrative Agent and containing the information required in such Exhibit) to be delivered to the Administrative Agent and the Swingline Lender pursuant to Section 2.5.(b) evidencing the Borrower’s request for a Swingline Loan.
“NZD” or “New Zealand Dollar” means the lawful currency of New Zealand.
“Obligations” means, individually and collectively: (a) the aggregate principal balance of, and all accrued and unpaid interest on, all Loans; (b) all Reimbursement Obligations and all other Letter of Credit Liabilities; and (c) all other indebtedness, liabilities, obligations, covenants and duties of the Borrower and the other Loan Parties owing to the Administrative Agent, the Issuing Bank or any Lender of every kind, nature and description, under or in respect of this Agreement or any of the other Loan Documents, including, without limitation, the Fees and indemnification obligations, whether direct or indirect, absolute or contingent, due or not due, contractual or tortious, liquidated or unliquidated, and whether or not evidenced by any promissory note. For the avoidance of doubt, “Obligations” shall not include any indebtedness, liabilities, obligations, covenants or duties in respect of Specified Derivatives Contracts.
“OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control.
“Off-Balance Sheet Obligations” means, with respect to a Person: (a) obligations of such Person in respect of any financing transaction or series of financing transactions (including factoring arrangements) pursuant to which such Person or any Subsidiary of such Person has sold, conveyed or otherwise transferred, or granted a security interest in, accounts, payments, receivables, rights to future lease payments or residuals or similar rights to payment to a special purpose Subsidiary or Affiliate of such Person; (b) obligations of such Person under a sale and leaseback transaction that does not create a liability on the balance sheet of such Person; (c) obligations of such Person under any so-called “synthetic” lease transaction; (d) obligations of such Person under any other transaction which is the functional equivalent of, or takes the place of, a borrowing but which does not constitute a liability on the balance sheet of such Person; and (e) in the case of the Borrower, liabilities and obligations of the Borrower, any Subsidiary or any other Person in respect of “off-balance sheet arrangements” (as defined in Item 303(a)(4)(ii) of Regulation S-K promulgated under the Securities Act) which the Borrower would be required to disclose in the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section of the Borrower’s report on Form 10-Q or Form 10-K (or their equivalents) which the Borrower is required to file with the SEC.
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“Original Credit Agreement” means that certain Credit Agreement, dated as of June 30, 2015 by and among the Borrower, certain of the Existing Lenders, the Administrative Agent and certain other parties thereto.
“Other Benchmark Rate Election” means, if the then-current Benchmark for Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Dollars, is the Adjusted Eurocurrency Rate for Dollars, the occurrence of: (a) a notification by the Administrative Agent to (or the request by the Borrower to the Administrative Agent to notify) each of the other parties hereto that at least five currently outstanding Dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed), in lieu of a USD LIBOR-based rate, a term benchmark rate that is not a SOFR-based rate as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and (b) the joint election by the Administrative Agent and the Borrower to trigger a fallback from the Adjusted Eurocurrency Rate for Dollars and the provision by the Administrative Agent of written notice of such election to the Lenders.
“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 Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 5.6.).
“Ownership Share” means, with respect to any Subsidiary of a Person (other than a Wholly Owned Subsidiary) or any Unconsolidated Affiliate of a Person, the greater of (a) such Person’s relative nominal direct and indirect ownership interest (expressed as a percentage) in such Subsidiary or Unconsolidated Affiliate or (b) such Person’s relative direct and indirect economic interest (calculated as a percentage) in such Subsidiary or Unconsolidated Affiliate determined in accordance with the applicable provisions of the declaration of trust, articles or certificate of incorporation, articles of organization, partnership agreement, joint venture agreement or other applicable organizational document of such Subsidiary or Unconsolidated Affiliate.
“Participant” has the meaning given that term in Section 13.5.(d).
“Participant Register” has the meaning given that term in Section 13.5.(d).
“Participating Member State” means each state so described in any EMU Legislation.
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“Patriot Act” means The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into law October 26, 2001)), as amended from time to time, and any successor statute.
“PBGC” means the Pension Benefit Guaranty Corporation and any successor agency.
“Permitted Liens” means, with respect to any Unencumbered Asset owned by a Person, (a) Liens securing taxes, assessments and other charges or levies imposed by any Governmental Authority (excluding any Lien imposed pursuant to any of the provisions of ERISA or pursuant to any Environmental Laws) or property owner association or similar entity or the claims of materialmen, mechanics, carriers, warehousemen, repairmen or landlords for labor, materials, supplies or rentals incurred in the ordinary course of business, which are not at the time delinquent or required to be paid or discharged under Section 8.6.; (b) Liens consisting of deposits or pledges made, in the ordinary course of business, in connection with, or to secure payment of, obligations under workmen’s compensation, unemployment insurance or other social security or other similar Applicable Laws; (c) Liens consisting of encumbrances in the nature of covenants, conditions, zoning restrictions, easements, encroachments, variations, rights of way and rights or restrictions on the use of real property, which do not materially detract from the value of such property or impair the use thereof in the business of such Person; (d) the rights of tenants under leases or subleases and the rights of managers or operators with respect to real or personal property made in the ordinary course of business, in each case, not interfering with the ordinary conduct of business of such Person; (e) Liens in favor of the Administrative Agent for the benefit of the Lenders; (f) Liens in favor of the Borrower or a Guarantor; (g) any option, contract or other agreement to sell an asset provided such sale is otherwise permitted by this Agreement; and (h) with respect to any Property, any attachment or judgment Lien on such Property arising from a judgment or order against such Person by any court or other tribunal so long as (i) such judgment or order is paid, stayed or dismissed through appropriate appellate proceedings on or before 60 days from the date of entry and (ii) the amount thereof is equal to or less than $1,000,000.
“Person” means any natural person, corporation, limited partnership, general partnership, joint stock company, limited liability company, limited liability partnership, joint venture, association, company, trust, bank, trust company, land trust, business trust or other organization, whether or not a legal entity, or any other nongovernmental entity, or any Governmental Authority.
“Plan” means at any time an employee pension benefit plan (other than a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Internal Revenue Code and either (a) is maintained, or contributed to, by any member of the ERISA Group for employees of any member of the ERISA Group or (b) has at any time within the preceding six years been maintained, or contributed to, by any Person which was at such time a member of the ERISA Group for employees of any Person which was at such time a member of the ERISA Group.
“Post-Default Rate” means, in respect of any principal of any Class of Loans, the interest rate otherwise applicable to such Class of Loans plus an additional two percent (2.0%) per annum and with respect to any other Obligation, a rate per annum equal to the Base Rate as in effect from time to time plus the Applicable Margin for Revolving Loans that are Base Rate Loans plus two percent (2.0%).
“Preferred Stock” means, with respect to any Person, Equity Interests in such Person which are entitled to preference or priority over any other Equity Interest in such Person in respect of the payment of dividends or distribution of assets upon liquidation or both.
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“Prime Rate” means, at any time, the rate of interest per annum publicly announced from time to time by the Lender then acting as the Administrative Agent as its prime rate. Each change in the Prime Rate shall be effective as of the opening of business on the day such change in such prime rate occurs. The parties hereto acknowledge that the rate announced publicly by the Lender acting as Administrative Agent as its prime rate is an index or base rate and shall not necessarily be its lowest or best rate charged to its customers or other banks.
“Principal Office” means the office of the Administrative Agent located at 000 Xxxxx 0xx Xxxxxx, 0xx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, or any other subsequent office that the Administrative Agent shall have specified as the Principal Office by written notice to the Borrower and the Lenders.
“Property” means, with respect to any Person, any parcel of real property, together with any building, facility, structure, equipment or other asset located on such parcel of real property, in each case owned by such Person.
“Pro Rata Share” means, as to each Lender, the ratio, expressed as a percentage of (a) (i) the aggregate amount of such Lender’s Revolving Commitments plus (ii) the aggregate amount of such Lender’s outstanding Term Loans to (b) (i) the aggregate amount of the Revolving Commitments of all Lenders plus (ii) the aggregate principal amount of all outstanding Term Loans; provided, however, that if at the time of determination the Revolving Commitments have been terminated or reduced to zero, the “Pro Rata Share” of each Lender shall be the ratio, expressed as a percentage of (A) the sum of the aggregate principal amount of all outstanding Loans and Letter of Credit Liabilities owing to such Lender as of such date to (B) the sum of the aggregate unpaid principal amount of all outstanding Loans and Letter of Credit Liabilities of all Lenders as of such date. If at the time of determination the Revolving Commitments have been terminated or reduced to zero and there are no outstanding Loans or, in the case of the Tranche 1 Revolving Commitments, Letter of Credit Liabilities, then the Pro Rata Shares of the Lenders shall be determined as of the most recent date on which Revolving Commitments were in effect or Loans or, in the case of the Tranche 1 Revolving Commitments, Letters of Credit Liabilities were outstanding. For purposes of this definition, a Tranche 1 Revolving Lender shall be deemed to hold a Swingline Loan or a Letter of Credit Liability to the extent such Tranche 1 Revolving Lender has acquired a participation therein under the terms of this Agreement and has not failed to perform its obligations in respect of such participation.
“QFC” has the meaning given to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
“QFC Credit Support” has the meaning given that term in Section 13.21.
“Qualified Plan” means a Benefit Arrangement that is intended to be tax-qualified under Section 401(a) of the Internal Revenue Code.
“Rating Agency” means S&P, Xxxxx’x or Fitch.
“Rate Determination Date” means, with respect to any Interest Period, two (2) Business Days prior to the commencement of such Interest Period (or such other day as is generally treated as the rate fixing day by market practice in such interbank market, as determined by the Administrative Agent; provided that to the extent that such market practice is not administratively feasible for the Administrative Agent, such other day as otherwise reasonably determined by the Administrative Agent).
“Recipient” means (a) the Administrative Agent, (b) any Lender and (c) any Issuing Bank, as applicable.
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“Recurring Capital Expenditures” means mandatory and recurring landlord capital expenditures made in respect of a Property for maintenance of such Property and replacement of items that have a limited useful life. “Recurring Capital Expenditures” for a period shall also include “Leasing Costs and Commissions” as set forth in the Borrower’s statement of “Adjusted Funds From Operations” for such period.
“Reference Time” with respect to any setting of the then-current Benchmark for any Currency means (a) if such Benchmark is a Daily Simple RFR, (i) if the RFR for such Benchmark is SOFR, then four (4) RFR Business Days prior to (A) if the date of such setting is an RFR Business Day, such date or (B) if the date of such setting is not an RFR Business Day, the RFR Business Day immediately preceding such date, (ii) if the RFR for such Benchmark is XXXXX, then four (4) RFR Business Days prior to (A) if the date of such setting is an RFR Business Day, such date or (B) if the date of such setting is not an RFR Business Day, the RFR Business Day immediately preceding such date, and (iii) if the RFR for such Benchmark is SARON, then five (5) RFR Business Days prior to (A) if the date of such setting is an RFR Business Day, such date or (B) if the date of such setting is not an RFR Business Day, the RFR Business Day immediately preceding such date, (b) if such Benchmark is an Adjusted Eurocurrency Rate, (i) if the applicable Adjusted Eurocurrency Rate for such Benchmark is based upon USD LIBOR, then 11:00 a.m. (London time) on the day that is two (2) Business Days preceding the date of such setting, (ii) if the applicable Adjusted Eurocurrency Rate for such Benchmark is based upon EURIBOR, then 11:00 a.m. (Brussels time) on the day that is two (2) Business Days preceding the date of such setting, and (iii) if the applicable Adjusted Eurocurrency Rate for such Benchmark is based upon TIBOR, then 11:00 a.m. (Tokyo time) on the day that is two (2) Business Days preceding the date of such setting and (c) otherwise, then the time determined by the Administrative Agent, including in accordance with the Benchmark Replacement Conforming Changes.
“Register” has the meaning given that term in Section 13.5.(c).
“Regulatory Change” means, with respect to any Lender, any change effective after the Agreement Date in Applicable Law (including without limitation, Regulation D of the Board of Governors of the Federal Reserve System) or the adoption or making after such date of any interpretation, directive or request applying to a class of banks, including such Lender, of or under any Applicable Law (whether or not having the force of law) by any Governmental Authority or monetary authority charged with the interpretation or administration thereof or compliance by any Lender with any request or directive regarding capital adequacy or liquidity. Notwithstanding anything herein to the contrary, (a) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (b) 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 “Regulatory Change”, regardless of the date enacted, adopted or issued.
“Reimbursement Obligation” means the absolute, unconditional and irrevocable obligation of the Borrower to reimburse the applicable Issuing Bank for any drawing honored by such Issuing Bank under a Letter of Credit.
“REIT” means a “real estate investment trust” under Sections 856 through 860 of the Internal Revenue Code.
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“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, shareholders, directors, officers, employees, agents, counsel, other advisors and representatives of such Person and of such Person’s Affiliates.
“Replacement Rate”
has the meaning assigned thereto in Section 5.2.(c).
“Relevant Governmental Body” means (a) with respect to a Benchmark Replacement in respect of Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Dollars, the FRB or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the FRB or the Federal Reserve Bank of New York, or any successor thereto and (b) with respect to a Benchmark Replacement in respect of Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, any Foreign Currency, (i) the central bank for the Currency in which such Obligations, interest, fees, commissions or other amounts are denominated, or calculated with respect to, or any central bank or other supervisor which is responsible for supervising either (A) such Benchmark Replacement or (B) the administrator of such Benchmark Replacement or (ii) any working group or committee officially endorsed or convened by (A) the central bank for the Currency in which such Obligations, interest, fees, commissions or other amounts are denominated, or calculated with respect to, (B) any central bank or other supervisor that is responsible for supervising either (1) such Benchmark Replacement or (2) the administrator of such Benchmark Replacement, (C) a group of those central banks or other supervisors or (D) the Financial Stability Board or any part thereof.
“Requisite Class Lenders” means, with respect to a Class of Lenders as of any date of determination, (a) with respect to the Revolving Lenders of a Class, Lenders of such Class having more than 50.0% of the aggregate amount of the Revolving Commitments of such Class, or (b) with respect to (i) the Revolving Lenders of a Class, if the Revolving Commitments have been terminated or reduced to zero or (ii) any Class of Term Loans, Lenders of such Class holding more than 50.0% of the principal amount of the aggregate outstanding Loans of such Class, and in the case of Tranche 1 Revolving Lenders, outstanding Letter of Credit Liabilities and Swingline Loans; provided that (i) in determining such percentage at any given time, all then existing Defaulting Lenders of such Class will be disregarded and excluded, and (ii) at all times when two or more Lenders (excluding Defaulting Lenders) of such Class are party to this Agreement, the term “Requisite Class Lenders” shall in no event mean less than two Lenders of such Class. For purposes of this definition, a Tranche 1 Revolving Lender shall be deemed to hold a Swingline Loan or a Letter of Credit Liability to the extent such Lender has acquired a participation therein under the terms of this Agreement and has not failed to perform its obligations in respect of such participation.
“Requisite Lenders” means, as of any date, (a) Lenders having more than 50.0% of the aggregate amount of the Revolving Commitments and the outstanding Term Loans of all Lenders, or (b) if the Revolving Commitments have been terminated or reduced to zero, Lenders holding more than 50.0% of the principal amount of the aggregate outstanding Loans and Letter of Credit Liabilities; provided that (i) in determining such percentage at any given time, all then existing Defaulting Lenders will be disregarded and excluded, and (ii) at all times when two or more Lenders (excluding Defaulting Lenders) are party to this Agreement, the term “Requisite Lenders” shall in no event mean less than two Lenders. For purposes of this definition, a Tranche 1 Revolving Lender shall be deemed to hold a Swingline Loan or a Letter of Credit Liability to the extent such Lender has acquired a participation therein under the terms of this Agreement and has not failed to perform its obligations in respect of such participation.
“Reserve for Replacements” means, for any period and with respect to any Property, an amount equal to the greater of (a)(i) the aggregate square footage of all completed space of such Property times (ii) $0.10 times (iii) the number of days in such period divided by (iv) 365 and (b) the amount of Recurring Capital Expenditures actually made in respect of such Property during such period. If the term Reserve for Replacements is used without reference to any specific Property, then it shall be determined on an aggregate basis with respect to all Properties of the Borrower and its Subsidiaries and the applicable Ownership Shares of all real property of all Unconsolidated Affiliates of the Borrower.
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“Responsible Officer” means with respect to the Borrower or any Subsidiary, the chief executive officer, the chief financial officer and chief operating officer of the Borrower or such Subsidiary.
“Restricted Payment” means with respect to a Person, (a) any dividend or other distribution, direct or indirect, on account of any Equity Interest of such Person now or hereafter outstanding, except a dividend payable solely in shares of that class of Equity Interests (or shares of common Equity Interests) to the holders of that class; (b) any redemption, conversion, exchange, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any Equity Interests of such Person now or hereafter outstanding; and (c) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire any Equity Interests of such Person now or hereafter outstanding.
“Revaluation Date” means (a) with respect to any Foreign Currency Rate Loan, the last day of each Interest Period of such Loan and (b) such additional dates as the Administrative Agent, the Swingline Lender or any Issuing Bank shall reasonably determine or the Requisite Class Lenders shall reasonably require.
“Revolving Commitment” means a Tranche 1 Revolving Commitment or a Tranche 2 Revolving Commitment.
“Revolving Commitment Percentage” means a Tranche 1 Revolving Commitment Percentage or a Tranche 2 Revolving Commitment Percentage.
“Revolving Lender” means a Tranche 1 Revolving Lender or a Tranche 2 Revolving Lender.
“Revolving Loan” means a Tranche 1 Revolving Loan or a Tranche 2 Revolving Loan.
“Revolving Note” means a Tranche 1 Revolving Note or a Tranche 2 Revolving Note.
“Revolving Termination Date” means March 24, 2023, or such later date to which the Revolving Termination Date may be extended pursuant to Section 2.14.
“RFR” means, for any Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, (a) Dollars, on and after the USD LIBOR Transition Date, SOFR, (b) Xxxxxxxx, XXXXX, (c) Swiss Francs, SARON and (d) Singapore Dollars, SORA.
“RFR Business Day” means, for any Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, (a) Dollars, on and after the USD LIBOR Transition Date, any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities, (b) Sterling, any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which banks are closed for general business in London, (c) Swiss Francs, any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which banks are closed for the settlement of payments and foreign exchange transactions in Zurich and (d) Singapore Dollars, any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which banks are closed for the settlement of payments and foreign exchange transactions in Singapore; provided, that for purposes of notice requirements in Sections 2.1.(b), 2.9.(a), 2.10. and 2.11., in each case, such day is also a Business Day.
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“RFR Loan” means a Daily Simple RFR Loan or a Term RFR Loan, as the context may require.
“RFR Rate Day” means any day pursuant to which any calculation of Adjusted Daily Simple RFR is made.
“Same Day
Funds” means (a) with respect to disbursements and payments in Dollars, immediately available funds, and (b) with respect to
disbursements and payments in anya
Foreign Currency, same day or other funds as may be determined by the Administrative Agent or
the applicable Issuing Bank (with notice thereof to the Administrative Agent), as the case may be, to be customary in the
place of disbursement or payment for the settlement of international banking transactions in the relevant Foreign
Currency.
“Sanctioned Country” means, at any time, a country, region or territory which is, or whose government is, the subject or target of any Sanctions.
“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by any Governmental Authority of the United States of America, including without limitation, OFAC or the U.S. Department of State, or by the United Nations Security Council, the European Union, any member state of the European Union or Her Majesty’s Treasury,
(b) any Person located, operating, organized or resident in a Sanctioned Country, (c) an agency of the government of a Sanctioned County or (d) any Person majority-owned or Controlled by any Person or agency described in any of the preceding clauses (a) through (c).
“Sanctions” means any sanctions or trade embargoes imposed, administered or enforced by any Governmental Authority of the United States of America, including without limitation, OFAC or the U.S. Department of State, or by the United Nations Security Council, the European Union, any member state of the European Union or Her Majesty’s Treasury.
“SARON” means a rate equal to the Swiss Average Rate Overnight as administered by the SARON Administrator.
“SARON Adjustment” means a percentage equal to -0.0571% (negative 5.71 basis points) per annum.
“SARON Administrator” means SIX Swiss Exchange AG (or any successor administrator of the Swiss Average Rate Overnight).
“SARON Administrator’s Website” means SIX Swiss Exchange AG’s website, currently at xxxxx://xxx.xxx-xxxxx.xxx, or any successor source for the Swiss Average Rate Overnight identified as such by the SARON Administrator from time to time.
“Screen Rate” means, for any Eurocurrency Rate Loan denominated in (a) Dollars, the USD LIBOR Rate, (b) Euros, the EURIBOR Rate, (c) Yen, the TIBOR Rate, (d) Australian Dollars, the BBSY Rate or (e) Canadian Dollars, the CDOR Rate.
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
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“Secured Indebtedness” means, with respect to a Person as of a given date, the aggregate principal amount of all Indebtedness of such Person outstanding on such date that is secured in any manner by any Lien on any property of such Person and, in the case of the Borrower, shall include (without duplication) the Borrower’s Ownership Share of the Secured Indebtedness of its Unconsolidated Affiliates. Indebtedness of the Borrower or a Subsidiary secured solely by a pledge of Equity Interests in one or more Subsidiaries shall not be treated as Secured Indebtedness but shall be treated as Unsecured Indebtedness.
“Securities Act” means the Securities Act of 1933, as amended from time to time, together with all rules and regulations issued thereunder.
“SEK” or “Swedish Krona” means the lawful currency of Sweden.
“SGD”, “Singapore Dollars” or “S$” means the lawful currency of Singapore.
“Singapore Dollar RFR Determination Day” has the meaning assigned thereto in the definition of “Adjusted Daily Simple RFR”.
“SIOR” has the meaning assigned thereto in the definition of “Eurocurrency Rate”.
“Single Asset Entity” means a Person (other than an individual) that (a) only owns a single Property; (b) is engaged only in the business of owning, developing and/or leasing such Property; and (c) receives substantially all of its gross revenues from such Property. In addition, if the assets of a Person consist solely of (i) Equity Interests in one or more other Single Asset Entities that collectively own a single Property and (ii) cash and other assets of nominal value incidental to such Person’s ownership of the other Single Asset Entities, such Person shall also be deemed to be a Single Asset Entity for purposes hereof.
“SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Adjustment” means a percentage equal to 0.11448% (11.448 basis points) per annum.
“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’s Website” means the website of the Federal Reserve Bank of New York, currently at xxxx://xxx.xxxxxxxxxx.xxx, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
“XXXXX” means a rate equal to the Sterling Overnight Index Average as administered by the XXXXX Administrator.
“XXXXX Adjustment” means a percentage equal to 0.0326% (3.26 basis points per annum.
“XXXXX Administrator” means the Bank of England (or any successor administrator of the Sterling Overnight Index Average).
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“XXXXX Administrator’s Website” means the Bank of England’s website, currently at xxxx://xxx.xxxxxxxxxxxxx.xx.xx, or any successor source for the Sterling Overnight Index Average identified as such by the XXXXX Administrator from time to time.
“SORA” means a rate equal to the Singapore Overnight Rate Average as administered by the SORA Administrator.
“SORA Adjustment” means such adjustment as agreed to in writing by the Borrower, the Administrative Agent and each Tranche 2 Revolving Lender.
“SORA Administrator” means the Monetary Authority of Singapore (or any successor administrator of the Singapore Overnight Rate Average).
“SORA Administrator’s Website” means the Monetary Authority of Singapore’s website, currently at xxxxx://xxxxxxxxx.xxx.xxx.xx, or any successor source for the Singapore Overnight Rate Average identified as such by the SORA Administrator from time to time.
“Solvent” means, when used with respect to any Person, that (a) the fair value and the fair salable value of its assets are each in excess of the fair valuation of its total liabilities (including all contingent liabilities computed at the amount which, in light of all facts and circumstances existing at such time, represents the amount that could reasonably be expected to become an actual and matured liability); (b) such Person is able to pay its debts or other obligations in the ordinary course as they mature; and (c) such Person has capital not unreasonably small to carry on its business and all business in which it proposes to be engaged.
“Special Notice Currency” means, at any time, a Foreign Currency other than the currency of a country that is a member of the Organization for Economic Cooperation and Development at such time located in North America.
“Specified Derivatives Contract” means any Derivatives Contract that is made or entered into at any time, or in effect at any time now or hereafter, whether as a result of an assignment or transfer or otherwise, between or among any Loan Party and any Specified Derivatives Provider, and which was not prohibited by any of the Loan Documents when made or entered into.
“Specified Derivatives Provider” means any Person that (a) at the time it enters into a Specified Derivatives Contract with a Loan Party, is a Lender or an Affiliate of a Lender or (b) at the time it (or its Affiliate) becomes a Lender (including on the Effective Date), is a party to a Specified Derivatives Contract with a Loan Party, in each case in its capacity as a party to such Specified Derivatives Contract.
“Spot
Rate” means, for
a Foreign Currency means, the
rate that appears on the relevant screen page on Bloomberg’s (Screen FXC) for cross currency
rates with respect to such currency twodetermined
for such Currency by the Administrative Agent or the Issuing Bank (with notice to the Administrative Agent), as applicable, to be
the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such Currency with another
currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two (2) Business
Days prior to the date onas
of which the foreign exchange computation is made; provided that if such page ceases to
be available, such other page for the purpose of displaying cross currency rates as the Administrative Agent may
determine, in its reasonable discretion.or
the Issuing Bank may obtain such spot rate from another financial institution designated by the Administrative Agent or the Issuing
Bank if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such Currency;
provided further that the
Issuing Bank may use such spot rate quoted on the date as of which the foreign exchange computation is made in the case of any Letter
of Credit denominated in a Foreign Currency.
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“S&P” means S&P Global Ratings, a division of S&P Global, Inc.
“Stated Amount” means the amount available to be drawn by a beneficiary under a Letter of Credit from time to time, as such amount may be increased or reduced from time to time in accordance with the terms of such Letter of Credit.
“Statutory Reserve Rate” means, with respect to any Foreign Currency, a fraction (expressed as a decimal), (a) the numerator of which is the number one, and (b) the denominator of which is the number one minus the aggregate of the maximum reserve, liquid asset, fees or similar requirements (including any marginal, special, emergency or supplemental reserves or other requirements) established by any central bank, monetary authority, the Financial Services Authority, the European Central Bank or other Governmental Authority for any category of deposits or liabilities customarily used to fund loans in such currency, expressed in the case of each such requirement as a decimal. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve, liquid asset or similar requirement.
“Sterling RFR Determination Day” has the meaning assigned thereto in the definition of “Adjusted Daily Simple RFR”.
“Subsidiary” means, for any Person, any corporation, partnership, limited liability company or other entity of which at least a majority of the Equity Interests having by the terms thereof ordinary voting power to elect a majority of the board of directors or other individuals performing similar functions of such corporation, partnership, limited liability company or other entity (without regard to the occurrence of any contingency) is at the time directly or indirectly owned or controlled by such Person or one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person, and shall include all Persons the accounts of which are consolidated with those of such Person pursuant to GAAP.
“Substantial Amount” means, at the time of determination thereof, an amount equal to 25% of Gross Asset Value at such time.
“Supported QFC” has the meaning given that term in Section 13.21.
“Swap Obligation” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Swingline Commitment” means each Swingline Lender’s obligation to make Swingline Loans pursuant to Section 2.5. in an amount up to, but not exceeding the amount set forth in the first sentence of Section 2.5.(a), as such amount may be reduced from time to time in accordance with the terms hereof.
“Swingline Lender” means each of Xxxxx Fargo, Bank of America, N.A., Royal Bank of Canada, Regions Bank and JPMorgan Chase Bank, N.A., in each case together with its successors and assigns, or any of them as the context may require.
“Swingline Loan” means a loan made by the Swingline Lender to the Borrower pursuant to Section 2.5.
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“Swingline Maturity Date” means the date which is 5 Business Days prior to the Revolving Termination Date.
“Swingline Note” means a promissory note of the Borrower substantially in the form of Exhibit L, payable to a Swingline Lender in a principal amount equal to the amount of the Swingline Commitment of such Swingline Lender as originally in effect and otherwise duly completed.
“Swiss Francs RFR Determination Day” has the meaning assigned thereto in the definition of “Adjusted Daily Simple RFR”.
“Tau” means Tau Operating Partnership, L.P., a limited partnership formed under the law of the State of Delaware.
“Taxable REIT Subsidiary” means any corporation (other than a REIT) in which the Borrower directly or indirectly owns stock and the Borrower and such corporation jointly elect on IRS Form 8875 (or with respect to which IRS Form 8875 is otherwise filed with the IRS) to have the corporation treated as a taxable REIT subsidiary of Borrower under Section 856(l) of the Internal Revenue Code. For purposes of this Agreement, any Subsidiary of a Taxable REIT Subsidiary that is disregarded as an entity for United States federal income tax purposes (a “Deemed Taxable REIT Subsidiary”) shall not be treated as an entity separate from such Taxable REIT Subsidiary but shall instead be deemed to be the same entity as such Taxable REIT Subsidiary.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other similar charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term Loan” means a Tranche A Term Loan or a Tranche B Term Loan.
“Term Loan Lender” means a Tranche A Term Loan Lender or a Tranche B Term Loan Lender.
“Term Loan Maturity Date” means, (a) with respect to the Tranche A Term Loans, June 30, 2020 and (b) with respect to the Tranche B Term Loans, March 24, 2024.
“Term Note” means a Tranche A Term Loan Note or a Tranche B Term Loan Note.
“Term RFR” means, with respect to any Currency for any Interest Period, a rate per annum equal to (a) for any Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Dollars, Adjusted Term SOFR and (b) for any Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Sterling, Swiss Francs or Singapore Dollars, the greater of (i) the forward-looking term rate for a period comparable to such Interest Period based on the RFR for such Currency that is published by an authorized benchmark administrator and is displayed on a screen or other information service, each as identified or selected by the Administrative Agent in its reasonable discretion at approximately a time and as of a date prior to the commencement of such Interest Period determined by the Administrative Agent in its reasonable discretion in a manner substantially consistent with market practice and (ii) the Floor.
“Term RFR Loan” means any Loan that bears interest at a rate based on Term RFR other than pursuant to clause (c) of the definition of “Base Rate”.
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“Term RFR Notice” means a notification by the Administrative Agent to the Lenders and the Borrower of the occurrence of a Term RFR Transition Event.
“Term RFR Transition Date” means, in the case of a Term RFR Transition Event, the date that is thirty (30) calendar days after the Administrative Agent has provided the related Term RFR Notice to the Lenders and the Borrower pursuant to Section 5.2(e)(i)(C).
“Term RFR Transition Event” means, with respect to any Currency for any Interest Period, the determination by the Administrative Agent that (a) the applicable Term RFR for such Currency has been recommended for use by the Relevant Governmental Body and (b) the administration of such Term RFR is administratively feasible for the Administrative Agent.
“Term SOFR” means, for any Available Tenor and Interest Period, a rate per annum equal to the forward-looking term rate for a period comparable to such Available Tenor based on the SOFR that is published by an authorized benchmark administrator and is displayed on a screen or other information service, each as identified or selected by the Administrative Agent in its reasonable discretion at approximately a time and as of a date prior to the commencement of such Interest Period determined by the Administrative Agent in its reasonable discretion in a manner substantially consistent with market practice.
“Term SOFR Adjustment” means, for any calculation with respect to a Base Rate Loan or a Term RFR Loan, a percentage per annum as set forth below for the applicable type of such Loan and (if applicable) Interest Period therefor:
Base Rate Loans:
| 0.11448% | ||
Term RFR Loans:
| Interest Period | Percentage |
| One month | 0.11448 % |
| Three months | 0.26161% |
| Six months | 0.42826% |
“Termination Date” means (a) with respect to the Revolving Loans and Revolving Commitments, the Revolving Termination Date and (b) with respect to a Class of Term Loans, the applicable Term Loan Maturity Date.
“TIBOR” has the meaning assigned thereto in the definition of “Eurocurrency Rate”.
“TIBOR Rate” has the meaning assigned thereto in the definition of “Eurocurrency Rate”.
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“TIIE
Rate” means, for any Interest Period with respect to a Foreign
CurrencyEurocurrency Rate
Loan denominated in Pesos, the
greater of (A) the rate per annum equal to the Interbank Equilibrium Interest Rate, or a comparable or successor rate
that is approved by the Administrative Agent, as published by Banco de Mexico in the Federation’s Official Gazette (or such
other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at
or about 2:00 x.x. (Xxxxxx Xxxx, Xxxxxx time) with a term equivalent to the applicable Interest Period.
If the TIIE Rate for any Interest Period shall be less than zero, such rate shall be deemed to be zero for such Interest Period for
all purposes of this Agreement and
(B) the Floor.
“Titled Agent” has the meaning given that term in Section 12.9.
“Total Liabilities” means, as to any Person as of a given date, all liabilities which would, in conformity with GAAP, be properly classified as a liability on a consolidated balance sheet of such Person as of such date, and in any event shall include (without duplication): (a) all Indebtedness of such Person (whether or not Nonrecourse Indebtedness and whether or not secured by a Lien), including without limitation, Capitalized Lease Obligations and reimbursement obligations with respect to any letter of credit (to the extent drawn and not reimbursed); (b) [reserved]; (c) all purchase and repurchase obligations and forward commitments of such Person to the extent such obligations or commitments are evidenced by a binding purchase agreement (forward commitments shall (x) include without limitation (i) forward equity commitments and (ii) commitments to purchase any real property under development, redevelopment or renovation but (y) exclude any agreement, commitment or arrangement for the sale of Equity Interests issued by the Borrower at a future date that could be discharged solely by (A) delivery of the Borrower’s Equity Interests (other than Mandatorily Redeemable Stock), or, (B) solely at the Borrower’s option made at any time, payment of the net cash value of such Equity Interests at the time, irrespective of the form or duration of such agreement, commitment or arrangement; provided, however, that during the period of time, if any, following an election by the Borrower to pay the net cash value of such Equity Interest and prior to payment of such net cash value, the obligation to pay such net cash value shall be included as “Total Liabilities” hereunder (it being understood and agreed that the amount of such Total Liabilities shall be calculated based on the closing price of the Borrower’s Equity Interests on the date of such election, irrespective of the market price of the Borrower’s Equity Interests at any time following such election, including at the time of payment)); (d) [reserved]; (e) [reserved]; (f) all contingent obligations of such Person including, without limitation, all Guarantees of Indebtedness by such Person; (g) all liabilities of any Unconsolidated Affiliate of such Person, which liabilities such Person has Guaranteed or is otherwise obligated on a recourse basis; and (h) such Person’s Ownership Share of the Indebtedness of any Unconsolidated Affiliate of such Person, including Nonrecourse Indebtedness of such Person. Accounts payable and accrued expenses shall be excluded from Total Liabilities. For purposes of clause (c) of this definition, the amount of Total Liabilities of a Person at any given time in respect of (x) a contract to purchase or otherwise acquire unimproved or fully developed real property shall be equal to (i) the total purchase price payable by such Person under such contract if, at such time, the seller of such real property would be entitled to specifically enforce such contract against such Person, otherwise, (ii) the aggregate amount of due diligence deposits, xxxxxxx money payments and other similar payments made by such Person under such contract which, at such time, would be subject to forfeiture upon termination of the contract and (y) a contract relating to the acquisition of real property which the seller is required to develop or renovate prior to, and as a condition precedent to, such acquisition, shall equal the maximum amount reasonably estimated to be payable by such Person under such contract assuming performance by the seller of its obligations under such contract, which amount shall include, without limitation, any amounts payable after consummation of such acquisition which may be based on certain performance levels or other related criteria. For purposes of this definition, if the assets of a Subsidiary of a Person consist solely of Equity Interests in one Unconsolidated Affiliate of such Person and such Person is not otherwise obligated in respect of the Indebtedness of such Unconsolidated Affiliate, then only such Person’s Ownership Share of the Indebtedness of such Unconsolidated Affiliate shall be included as Total Liabilities of such Person. Notwithstanding the use of GAAP, the calculation of Total Liabilities shall not include any fair value adjustments to the carrying value of liabilities to record such liabilities at fair value pursuant to electing the fair value option election under FASB ASC 000-00-00 (formerly known as FAS 159, The Fair Value Option for Financial Assets and Financial Liabilities) or other FASB standards allowing entities to elect fair value option for financial liabilities.
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“Tranche A Term Loan” means a term loan made to the Borrower pursuant to the Original Credit Agreement and maintained under this Agreement pursuant to Section 2.2.(a).
“Tranche A Term Loan Lender” means a Lender holding a Tranche A Term Loan.
“Tranche A Term Loan Note” means a promissory note of the Borrower substantially in the form of Exhibit M, payable to a Tranche A Term Loan Lender in a principal amount equal to the amount of such Tranche A Term Loan Lender’s Tranche A Term Loans.
“Tranche B Term Loan” means a term loan made to the Borrower pursuant to the Existing Credit Agreement and maintained under this Agreement pursuant to Section 2.2.(b).
“Tranche B Term Loan Lender” means a Lender holding a Tranche B Term Loan.
“Tranche B Term Loan Note” means a promissory note of the Borrower substantially in the form of Exhibit N, payable to a Tranche B Term Loan Lender in a principal amount equal to the amount of such Tranche B Term Loan Lender’s Tranche B Term Loans.
“Tranche 1 Currency” means (a) Dollars, (b) AUD, (c) GBP, (d) CAD, (e) CHF and (f) EUR.
“Tranche 1 Revolving Commitment” means, as to each Tranche 1 Revolving Lender (other than the Swingline Lender), such Tranche 1 Revolving Lender’s obligation to make Tranche 1 Revolving Loans pursuant to Section 2.1.(a)(i), to issue (in the case of an Issuing Bank) and to participate (in the case of the other Tranche 1 Revolving Lenders) in Letters of Credit pursuant to Section 2.4.(i), and to participate in Swingline Loans pursuant to Section 2.5.(e), in an amount up to, but not exceeding the amount set forth for such Tranche 1 Revolving Lender on Schedule I as such Tranche 1 Revolving Lender’s “Tranche 1 Revolving Commitment Amount” or as set forth in the applicable Assignment and Assumption, or agreement executed by a Person becoming a Tranche 1 Revolving Lender pursuant to Section 2.17., as the same may be reduced from time to time pursuant to Section 2.13. or increased or reduced as appropriate to reflect any assignments to or by such Tranche 1 Revolving Lender effected in accordance with Section 13.5. or increased as appropriate to reflect any increase effected in accordance with Section 2.17.
“Tranche 1 Revolving Commitment Percentage” means, as to each Lender with a Tranche 1 Revolving Commitment, the ratio, expressed as a percentage, of (a) the amount of such Lender’s Tranche 1 Revolving Commitment to (b) the aggregate amount of the Tranche 1 Revolving Commitments of all Tranche 1 Revolving Lenders; provided, however, that if at the time of determination the Revolving Commitments have been terminated or reduced to zero, the “Tranche 1 Revolving Commitment Percentage” of each Lender with a Tranche 1 Revolving Commitment shall be the “Tranche 1 Revolving Commitment Percentage” of such Lender in effect immediately prior to such termination or reduction.
“Tranche 1 Revolving Credit Exposure” means, as to any Tranche 1 Revolving Lender at any time, the aggregate principal amount at such time of its outstanding Tranche 1 Revolving Loans and such Tranche 1 Revolving Lender’s participation in Letter of Credit Liabilities and Swingline Loans at such time.
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“Tranche 1 Revolving Lender” means a Lender having a Tranche 1 Revolving Commitment, or if the Revolving Commitments have been terminated or reduced to zero, holding any Tranche 1 Revolving Loans or Letter of Credit Liabilities.
“Tranche 1 Revolving Loan” means a loan made by a Tranche 1 Revolving Lender to the Borrower pursuant to Section 2.1.(a)(i).
“Tranche 1 Revolving Note” means a promissory note of the Borrower substantially in the form of Exhibit J, payable to a Tranche 1 Revolving Lender in a principal amount equal to the amount of such Lender’s Tranche 1 Revolving Commitment.
“Tranche 2 Currency” means (a) Dollars, (b) AUD, (c) GBP, (d) CAD, (e) CHF, (f) EUR, (g) HKD, (h) SGD, (i) DKK, (j) JPY, (k) MXN, (l) NZD, (m) NOK and (n) SEK.
“Tranche 2 Revolving Commitment” means, as to each Tranche 2 Revolving Lender, such Tranche 2 Revolving Lender’s obligation to make Tranche 2 Revolving Loans pursuant to Section 2.1.(a)(ii) in an amount up to, but not exceeding the amount set forth for such Tranche 2 Revolving Lender on Schedule I as such Tranche 2 Revolving Lender’s “Tranche 2 Revolving Commitment Amount” or as set forth in the applicable Assignment and Assumption, as the same may be reduced from time to time pursuant to Section 2.13. or increased or reduced as appropriate to reflect any assignments to or by such Tranche 2 Revolving Lender effected in accordance with Section 13.5.
“Tranche 2 Revolving Commitment Percentage” means, as to each Lender with a Tranche 2 Revolving Commitment, the ratio, expressed as a percentage, of (a) the amount of such Lender’s Tranche 2 Revolving Commitment to (b) the aggregate amount of the Tranche 2 Revolving Commitments of all Tranche 2 Revolving Lenders; provided, however, that if at the time of determination the Revolving Commitments have been terminated or reduced to zero, the “Tranche 2 Revolving Commitment Percentage” of each Lender with a Tranche 2 Revolving Commitment shall be the “Tranche 2 Revolving Commitment Percentage” of such Lender in effect immediately prior to such termination or reduction.
“Tranche 2 Revolving Credit Exposure” means, as to any Tranche 2 Revolving Lender at any time, the aggregate principal amount at such time of its outstanding Tranche 2 Revolving Loans.
“Tranche 2 Revolving Lender” means a Lender having a Tranche 2 Revolving Commitment, or if the Revolving Commitments have been terminated or reduced to zero, holding any Tranche 2 Revolving Loans.
“Tranche 2 Revolving Loan” means a loan made by a Tranche 2 Revolving Lender to the Borrower pursuant to Section 2.1.(a)(ii).
“Tranche 2 Revolving Note” means a promissory note of the Borrower substantially in the form of Exhibit K, payable to a Tranche 2 Revolving Lender in a principal amount equal to the amount of such Lender’s Tranche 2 Revolving Commitment.
“Treasury Estates Portfolio” means the Properties comprised of vineyard properties as well as the winery, production, retail and visitor center buildings of both the Sterling Vineyards winery and the Xxxxxxxx Vineyards (BV) winery, acquired by the Borrower and its Subsidiaries from Treasury Wine Estates (as successor to Diageo Chateau & Estate Wine Company).
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“Type”
with respect to any Revolving Loan or Term Loan, refers to whether such Loan or portion thereof is a LIBOREurocurrency
Rate Loan, a Base Rate Loan or a Foreign Currency Rate,
a Daily Simple RFR Loan or a Term RFR Loan.
“UCC” means the Uniform Commercial Code as in effect in any applicable jurisdiction.
“Unconsolidated Affiliate” means, with respect to any Person, any other Person in whom such Person holds an Investment, which Investment is accounted for in the financial statements of such Person on an equity basis of accounting and whose financial results would not be consolidated under GAAP with the financial results of such Person on the consolidated financial statements of such Person.
“Unencumbered Asset” means a Property which satisfies all of the following requirements: (a) such Property is owned in fee simple, or leased under an Eligible Ground Lease, by (i) the Borrower, (ii) a Guarantor which is not an Unconsolidated Affiliate and of which the Borrower directly or indirectly owns and controls at least 51% of the issued and outstanding Equity Interests of such Guarantor or (iii) a Subsidiary of which the Borrower directly or indirectly owns and controls at least 85% of the issued and outstanding Equity Interests of such Subsidiary; (b) such Property is a retail, office, industrial, manufacturing or distribution Property, or is the Treasury Estates Portfolio, and is leased to third party tenants on a net lease basis; (c) if such Property is owned by a Subsidiary that is not a Guarantor, such Subsidiary has not incurred, acquired or suffered to exist any Indebtedness other than (i) Nonrecourse Indebtedness, (ii) Indebtedness that does not constitute Nonrecourse Indebtedness not to exceed 5% of the Unencumbered Asset Value of such Subsidiary in the aggregate at any time outstanding, (iii) Indebtedness owed to the Borrower or a Guarantor and (iv) Indebtedness owed to a Subsidiary (x) which would be permitted under this definition of “Unencumbered Asset” (including, without limitation, under this clause (c)) to own an Unencumbered Asset and (y) the Properties of which would qualify as Unencumbered Assets; (d) regardless of whether such Property is owned by the Borrower or a Subsidiary, the Borrower has the right directly, or indirectly through a Subsidiary, to take the following actions without the need to obtain the consent of any Person: (i) to create Liens on such Property as security for Indebtedness of the Borrower or such Subsidiary, as applicable, and (ii) to sell, transfer or otherwise dispose of such Property; (e) neither such Property, nor if such Property is owned by a Subsidiary, any of the Borrower’s direct or indirect ownership interest in such Subsidiary, is subject to (i) any Lien other than Permitted Liens or (ii) any Negative Pledge; and (f) such Property is free of all structural defects, title defects and environmental conditions except for such defects or conditions individually or collectively which do not materially adversely affect the profitable operation of such Property; provided that no Property owned by (A) Crest Net Lease, Inc., (B) any Deemed Taxable REIT Subsidiary of Crest Net Lease, Inc., (C) ARCT TRS Corp., (D) any Deemed Taxable REIT Subsidiary of ARCT TRS Corp., (E) any Taxable REIT Subsidiary (in addition to Crest Net Lease, Inc., and ARCT TRS Corp.) that is designated by the Borrower pursuant to Section 8.14. hereof to not become a Guarantor hereunder or (F) any Deemed Taxable REIT Subsidiary of a Taxable REIT Subsidiary identified in the foregoing clause (E) shall be included as an Unencumbered Asset hereunder. Notwithstanding the foregoing, any Property approved by the Requisite Lenders shall be deemed to be an Unencumbered Asset even if such Property does not satisfy all of the requirements herein, so long as such Property continues to satisfy all those remaining requirements in this definition that were satisfied by such Property at the time of such Requisite Lender approval.
“Unencumbered Asset Certificate” means a report, certified by the chief financial officer of the Borrower in the manner provided for in Exhibit O, setting forth the calculations required to establish Unencumbered Asset Value as of a specified date, all in form and detail reasonably satisfactory to the Administrative Agent.
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“Unencumbered Asset Value” means, at any time, the sum (without duplication) of (a)(i) the Net Operating Income of all Unencumbered Assets (excluding (A) Development Properties and (B) any Unencumbered Asset that has a negative Net Operating Income for such period) for the period of four consecutive fiscal quarters of the Borrower most recently ended divided by (ii) the Capitalization Rate, plus (b) the current GAAP book value of all Development Properties that are Unencumbered Assets plus (c) the GAAP book value (exclusive of accumulated depreciation) of the corporate headquarters of the Borrower located at 11975/11995 Xx Xxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx 00000 so long as the Borrower or a Subsidiary owns such Property and such Property would qualify as an Unencumbered Asset except for clause (b) of the definition thereof. If an Unencumbered Asset (other than a Development Property) was acquired by the Borrower or a Subsidiary during the period of four consecutive fiscal quarters of the Borrower most recently ended, then the Net Operating Income from such Unencumbered Asset shall be excluded from determination of Unencumbered Asset Value and Unencumbered Asset Value shall be increased by an amount equal to the purchase price paid by the Borrower or any Subsidiary for such Unencumbered Asset (less any amounts paid to the Borrower or such Subsidiary as a purchase price adjustment, held in escrow, retained as a contingency reserve, or in connection with other similar arrangements). To the extent that Unencumbered Assets leased pursuant to ground leases would, in the aggregate, account for more than 10.0% of Unencumbered Asset Value, such excess shall be excluded. To the extent that Development Properties would, in the aggregate, account for more than 10.0% of Unencumbered Asset Value, such excess shall be excluded. To the extent that Unencumbered Assets that are not located in a state of the United States of America or the District of Columbia would, in the aggregate account for more than 10.0% of Unencumbered Asset Value, such excess shall be excluded. In the event that a Property meets the definition of Unencumbered Asset by way of its owner becoming a Guarantor as provided for in clause (a)(ii) of the definition of Unencumbered Asset (which Guarantor is not a Subsidiary for which the Borrower directly or indirectly owns and controls at least 85% of its issued and outstanding Equity Interests), then to the extent that such Unencumbered Assets (excluding any Unencumbered Assets owned directly or indirectly by Tau or Realty Income, LP) would account for more than 10.0% of Unencumbered Asset Value, such excess shall be excluded.
“Unimproved Land” means land on which no development (other than improvements that are not material and are temporary in nature) has occurred.
“Unrestricted 1031 Cash” means the aggregate amount of cash of the Borrower, each Guarantor and each Subsidiary that is held in escrow in connection with the completion of “like-kind” exchanges being effected in accordance with Section 1031 of the Internal Revenue Code.
“Unsecured Indebtedness” means, with respect to a Person, Indebtedness of such Person that is not Secured Indebtedness.
“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. Special Resolution Regimes” has the meaning given that term in Section 13.21.
“U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section 3.10.(g)(ii)(B)(III).
“USD LIBOR” has the meaning assigned thereto in the definition of “Eurocurrency Rate”.
“USD LIBOR Rate” has the meaning assigned thereto in the definition of “Eurocurrency Rate”.
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“USD LIBOR Transition Date” means, the earlier of (a) the date that all Available Tenors of USD LIBOR have either (i) permanently or indefinitely ceased to be provided by IBA; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of USD LIBOR or (ii) been announced by the FCA pursuant to public statement or publication of information to be no longer representative and (b) the Early Opt-in Effective Date, so long as, in the case of (a) or (b), a Benchmark Replacement has not as of such date replaced the Adjusted Eurocurrency Rate for Dollars pursuant to Section 5.2(c)(i) as the result of an Other Benchmark Rate Election.
“Xxxxx Fargo” means Xxxxx Fargo Bank, National Association, and its successors and assigns.
“Wholly Owned Subsidiary” means any Subsidiary of a Person in respect of which all of the Equity Interests (other than, in the case of a corporation, directors’ qualifying shares) are at the time directly or indirectly owned or controlled by such Person or one or more other Subsidiaries of such Person or by such Person and one or more other Subsidiaries of such Person.
“Withdrawal Liability” means any liability as a result of a complete or partial withdrawal from a Multiemployer Plan as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
“Withholding Agent” means (a) the Borrower, (b) any other Loan Party and (c) the Administrative Agent, as applicable.
“Write-Down and Conversion Powers” means with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
Section 1.2. General; References to Pacific Time.
Unless otherwise indicated, all accounting terms, ratios and measurements shall be interpreted or determined in accordance with GAAP as in effect as of the Existing Agreement Date. References in this Agreement to “Sections”, “Articles”, “Exhibits” and “Schedules” are to sections, articles, exhibits and schedules herein and hereto unless otherwise indicated. References in this Agreement to any document, instrument or agreement (a) shall include all exhibits, schedules and other attachments thereto, (b) except as expressly provided otherwise in any Loan Document, shall include all documents, instruments or agreements issued or executed in replacement thereof, to the extent permitted hereby and (c) shall mean such document, instrument or agreement, or replacement or predecessor thereto, as amended, supplemented, restated or otherwise modified from time to time to the extent not otherwise stated herein or prohibited hereby and in effect at any given time. Except as expressly provided otherwise in any Loan Document, (i) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified, extended, restated, replaced or supplemented from time to time and (ii) any reference to any Person shall be construed to include such Person’s permitted successors and permitted assigns. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall”. The word “or” has the inclusive meaning represented by the phrase “and/or”. Wherever from the context it appears appropriate, each term stated in either the singular or plural shall include the singular and plural, and pronouns stated in the masculine, feminine or neuter gender shall include the masculine, the feminine and the neuter. Unless explicitly set forth to the contrary, a reference to “Subsidiary” means a Subsidiary of the Borrower or a Subsidiary of such Subsidiary, a reference to “Unconsolidated Affiliate” means an Unconsolidated Affiliate of the Borrower and a reference to an “Affiliate” means an Affiliate of the Borrower. Titles and captions of Articles, Sections, subsections and clauses in this Agreement are for convenience only, and neither limit nor amplify the provisions of this Agreement. Unless otherwise indicated, all references to time are references to Pacific time daylight or standard, as applicable.
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Section 1.3. Rates.
The
Administrative Agent does not warrant or accept responsibility for, and shall not have any liability with respect to, the administration,
submission or any other matter related to the rates in the definitions of “LIBOR”, “CDOR Rate”, “TIIE Rate”
and “Foreign Currency Rate”.
The interest rate on Loans denominated in Dollars or a Foreign Currency may be determined by reference to a benchmark rate that is, or may in the future become, the subject of regulatory reform or cessation. Regulators have signaled the need to use alternative reference rates for some of these benchmark rates and, as a result, such benchmark rates may cease to comply with applicable laws and regulations, may be permanently discontinued or the basis on which they are calculated may change. The London interbank offered rate, which may be one of the benchmark rates with reference to which the interest rate on Loans may be determined, is intended to represent the rate at which contributing banks may obtain short-term borrowings from each other in the London interbank market. On March 5, 2021, the ICE Benchmark Administration (“IBA”), the administrator of the London interbank offered rate, and the Financial Conduct Authority (the “FCA”), the regulatory supervisor of IBA, announced in public statements (the “Announcements”) that the final publication or representativeness date for the London interbank offered rate for: (a) Sterling, Yen, Swiss Francs and Euros will be December 31, 2021, (b) Dollars for 1-week and 2-month tenor settings will be December 31, 2021 and (c) Dollars for overnight, 1-month, 3-month, 6-month and 12-month tenor settings will be June 30, 2023. No successor administrator for IBA was identified in such Announcements. As a result, it is possible that commencing immediately after such dates, the London interbank offered rate for such currencies and tenors may no longer be available or may no longer be deemed a representative reference rate upon which to determine the interest rate on applicable Loans. There is no assurance that the dates set forth in the Announcements will not change or that IBA or the FCA will not take further action that could impact the availability, composition or characteristics of any London interbank offered rate. Public and private sector industry initiatives have been and continue, as of the date hereof, to be underway to implement new or alternative reference rates to be used in place of London interbank offered rates. In the event that the London interbank offered rate or any other then-current Benchmark is no longer available or in certain other circumstances set forth in Section 5.2(c), such Section 5.2(c) provides a mechanism for determining an alternative rate of interest. The Administrative Agent will notify the Borrower, pursuant to Section 5.2(c), of any change to the reference rate upon which the interest rate on Loans is based. However, the Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, (i) the continuation of, administration of, submission of, calculation of or any other matter related to the London interbank offered rate, the rates in the definition of “Eurocurrency Rate” or any other Benchmark, or any component definition thereof or rates referenced in the definition thereof, or with respect to any alternative, successor or replacement rate thereto (including any then-current Benchmark or any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement), as it may or may not be adjusted pursuant to Section 5.2(c), will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, such Benchmark or any other Benchmark prior to its discontinuance or unavailability, or (ii) the effect, implementation or composition of any Conforming Changes. The Administrative Agent and its Affiliates or other related entities may engage in transactions that affect the calculation of a Benchmark, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto and such transactions may be adverse to the Borrower . The Administrative Agent may select information sources or services in its reasonable discretion to ascertain any Benchmark, any component definition thereof or rates referred to in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.
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Section 1.4. Exchange Rates; Currency Equivalents.
(a) The Administrative Agent shall determine the Spot Rate for a given Foreign Currency as of each date of borrowing or Revaluation Date for a given Foreign Currency, as applicable, to be used for calculating the Dollar Equivalent amount of any borrowing of Revolving Loans and other amounts outstanding hereunder denominated in such Foreign Currency. Such Spot Rate shall become effective as of such borrowing or Revaluation Date and shall be the Spot Rate employed in converting any amounts between the applicable currencies until the next Revaluation Date with respect to the applicable Foreign Currency.
(b) Wherever in this Agreement in connection with an Obligation, borrowing, Conversion, Continuation or prepayment of a Foreign Currency Rate Loan, an amount (such as a required minimum or multiple amount) is expressed in Dollars but such Obligation is denominated in a Foreign Currency, such amount shall be the relevant Foreign Currency Equivalent of such Dollar Equivalent (rounded to the nearest unit of such Foreign Currency, with 0.0001 of a unit being rounded upward), as determined by the Administrative Agent on the applicable Revaluation Date under and in accordance with the provisions of this Agreement.
Section 1.5. Change of Currency.
(a) Each obligation of the Borrower to make a payment denominated in the national currency unit of any member state of the European Union that adopts the Euro as its lawful currency after the date hereof shall be redenominated into Euros at the time of such adoption (in accordance with the EMU Legislation). If, in relation to the currency of any such member state, the basis of accrual of interest expressed in this Agreement in respect of that currency shall be inconsistent with any convention or practice in the London interbank market for the basis of accrual of interest in respect of the Euro, such expressed basis shall be replaced by such convention or practice with effect from the date on which such member state adopts the Euro as its lawful currency; provided that if any Obligation in the currency of such member state is outstanding immediately prior to such date, such replacement shall take effect, with respect to such Obligation, at the end of the then current Interest Period.
(b) Each provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify to be appropriate to reflect the adoption of the Euro by any member state of the European Union and any relevant market conventions or practices relating to the Euro.
(c) Each provision of this Agreement also shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify to be appropriate to reflect change in currency of any other country and any relevant market conventions or practices relating to such change in currency.
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ARTICLE II. CREDIT FACILITY
Section 2.1. Revolving Loans.
(a) Making of Revolving Loans.
(i)
Tranche 1 Revolving Loans. Subject to the terms and conditions set forth in this Agreement, including without limitation,
Section 2.16., each Tranche 1 Revolving Lender severally and not jointly agrees to make Tranche 1 Revolving Loans in a Tranche 1 Currency
to the Borrower during the period from and including the Effective Date to but excluding the Revolving Termination Date, in an aggregate
principal amount at any one time outstanding up to, but not exceeding, such Tranche 1 Revolving Lender’s Tranche 1 Revolving Commitment.
Each borrowing of Tranche 1 Revolving Loans that are to be (i) Base Rate Loans shall be in an aggregate minimum amount of $5,000,000
and integral multiples of $1,000,000 in excess thereof and (ii) LIBOR Loans or Foreign CurrencyEurocurrency
Rate Loans or
RFR Loans shall be in an aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof. Notwithstanding
the immediately preceding two sentences but subject to Section 2.16., a borrowing of Tranche 1 Revolving Loans may be in the aggregate
amount of the unused Tranche 1 Revolving Commitments. Within the foregoing limits and subject to the terms and conditions of this Agreement,
the Borrower may borrow, repay and reborrow Tranche 1 Revolving Loans.
(ii)
Tranche 2 Revolving Loans. Subject to the terms and conditions set forth in this Agreement, including without limitation,
Section 2.16., each Tranche 2 Revolving Lender severally and not jointly agrees to make Tranche 2 Revolving Loans in a Tranche 2 Currency
to the Borrower during the period from and including the Effective Date to but excluding the Revolving Termination Date, in an aggregate
principal amount at any one time outstanding up to, but not exceeding, such Tranche 2 Revolving Lender’s Tranche 2 Revolving Commitment.
Each borrowing of Tranche 2 Revolving Loans that are to be (i) Base Rate Loans shall be in an aggregate minimum amount of $5,000,000
and integral multiples of $1,000,000 in excess thereof and (ii) LIBOR Loans or Foreign CurrencyEurocurrency
Rate Loans or
RFR Loans shall be in an aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof. Notwithstanding
the immediately preceding two sentences but subject to Section 2.16., a borrowing of Tranche 2 Revolving Loans may be in the aggregate
amount of the unused Tranche 2 Revolving Commitments. Within the foregoing limits and subject to the terms and conditions of this Agreement,
the Borrower may borrow, repay and reborrow Tranche 2 Revolving Loans.
| (b) | Requests for Revolving Loans. |
(i)
With respect to Revolving Loans denominated in Dollars, not later than 9:00 a.m. Pacific time at least 1 Business Day prior to
a borrowing of Revolving Loans that are to be Base Rate Loans and not later than 9:00 a.m. Pacific time at least 3 Business Days prior
to a borrowing of Revolving Loans that are to be LIBOR Loans, the Borrower shall deliver to the Administrative Agent a Notice of Revolving
Borrowing. With respect to Revolving Loans denominated in Dollars, each Notice of Revolving Borrowing shall specify (A) the aggregate
principal amount of the Revolving Loans to be borrowed, (B) the date such Revolving Loans are to be borrowed (which must be a Business
Day), (C) the Type and Class of the requested Revolving Loans, and (D) if such Revolving Loans are to be LIBOR Loans, the initial Interest
Period for such Revolving Loans.
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(i) The Borrower shall give a Notice of Revolving Borrowing not later than 9:00 a.m. Pacific time (A) on the immediately preceding Business Day as each Base Rate Loan and (B)(I) in the case of a Daily Simple RFR Loan denominated in Dollars, at least five RFR Business Days before such Daily Simple RFR Loan, (II) in the case of a Term RFR Loan denominated in Dollars, at least three RFR Business Days before such Term RFR Loan, (III) in the case of a Eurocurrency Rate Loan denominated in Dollars, at least three Business Days before such Eurocurrency Rate Loan, (IV) in the case of an RFR Loan denominated in any Foreign Currency, at least five RFR Business Days before such RFR Loan, and (V) in the case of a Eurocurrency Rate Loan denominated in any Foreign Currency, at least four Business Days before such Eurocurrency Rate Loan (or five Business Days in the case of a Special Notice Currency), of its intention to borrow, in each case, specifying (1) the date of such borrowing, which shall be a Business Day, (2) the Currency of such borrowing, (3) the amount of such borrowing, which shall comply with clause (a) above, (4) whether such Revolving Loan is to be a Eurocurrency Rate Loan, a Daily Simple RFR Loan, a Term RFR Loan or a Base Rate Loan, and (5) in the case of a Eurocurrency Rate Loan or a Term RFR Loan, the duration of the Interest Period applicable thereto. If the Borrower fails to specify the Currency of a Loan in a Notice of Revolving Borrowing, then the applicable Loans shall be made in Dollars. If the Borrower fails to specify a Type of Loan denominated in Dollars in a Notice of Revolving Borrowing, then the applicable Loans shall be made as Base Rate Loans. If the Borrower requests a borrowing of Eurocurrency Rate Loans or Term RFR Loans in any such Notice of Borrowing, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. A Notice of Borrowing received after 11:00 a.m. shall be deemed received on the next Business Day, RFR Business Day or Eurocurrency Banking Day, as applicable. The Administrative Agent shall promptly notify the Revolving Credit Lenders of each Notice of Borrowing
(ii)
With respect to Revolving Loans denominated in a Foreign Currency, not later than 9:00 a.m. Pacific time at least 5 Business Days
prior to a borrowing of Revolving Loans, the Borrower shall deliver to the Administrative Agent a Notice of Revolving Borrowing. With
respect to Revolving Loans denominated in a Foreign Currency, each Notice of Revolving Borrowing shall specify (A) the aggregate principal
amount of the Revolving Loans to be borrowed, (B) the date such Revolving Loans are to be borrowed (which must be a Business Day), (C)
the Type and Class of the requested Revolving Loans, (D), the Currency of the requested Revolving Loans and (E) the initial Interest
Period for such Revolving Loans.
(iii)
Each Notice of Revolving Borrowing shall be irrevocable once given and binding on the Borrower. Prior to delivering a Notice of
Revolving Borrowing, the Borrower may (without specifying whether a Revolving Loan will be a Base Rate Loan, a LIBOREurocurrency
Rate Loan or a Foreign Currency RateRFR
Loan) request that the Administrative Agent provide the Borrower with the most recent LIBOR
or Foreign Currency RateEurocurrency
Rate or applicable RFR available to the Administrative Agent. The Administrative Agent shall provide such quoted rate to the
Borrower on the date of such request or as soon as possible thereafter.
(c)
Funding of Revolving Loans. Promptly after receipt of a Notice of Revolving Borrowing under the immediately preceding subsection
(b), the Administrative Agent shall notify each Revolving Lender of the applicable Class of Revolving Loans so requested of the proposed
borrowing and the Currency thereof. Each Revolving Lender of the applicable Class shall deposit an amount equal to the Revolving Loan
of such Class in the applicable Currency to be made by such Lender to the Borrower with the Administrative Agent at the Principal Office,
in immediately available fundsSame
Day Funds not later than 9:00 a.m. Pacific time on the date of such proposed Revolving Loans. Subject to fulfillment of all
applicable conditions set forth herein, the Administrative Agent shall make available to the Borrower in the account specified in the
Disbursement Instruction Agreement, not later than 12:00 Noon Pacific time on the date of the requested borrowing of Revolving Loans
of such Class, the proceeds of such amounts received by the Administrative Agent.
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(d) Assumptions Regarding Funding by Revolving Lenders. With respect to Revolving Loans to be made after the Effective Date, unless the Administrative Agent shall have been notified by any Revolving Lender of a Class of Revolving Loans that such Lender will not make available to the Administrative Agent a Revolving Loan of such Class to be made by such Lender in connection with any borrowing, the Administrative Agent may assume that such Lender will make the proceeds of such Revolving Loan available to the Administrative Agent in accordance with this Section, and the Administrative Agent may (but shall not be obligated to), in reliance upon such assumption, make available to the Borrower the amount of such Revolving Loan to be provided by such Lender. In such event, if such Lender does not make available to the Administrative Agent the proceeds of such Revolving Loan, then such Lender and the Borrower severally agree to pay to the Administrative Agent on demand the amount of such Revolving Loan with interest thereon, for each day from and including the date such Revolving Loan is made available to the Borrower but excluding the date of payment to the Administrative Agent, at (i) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation and (ii) in the case of a payment to be made by the Borrower, the interest rate applicable to Revolving Loans that are Base Rate Loans. If the Borrower and such Lender shall pay the amount of such interest to the Administrative Agent for the same or overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays to the Administrative Agent the amount of such Revolving Loan, the amount so paid shall constitute such Lender’s Revolving Loan included in the borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Revolving Lender that shall have failed to make available the proceeds of a Revolving Loan to be made by such Lender (including, if applicable, treatment of such Lender as a Defaulting Lender in accordance with the terms of this Agreement).
Section 2.2. Term Loans.
(a) Tranche A Term Loans. Pursuant to the Original Credit Agreement, certain of the Existing Lenders made “Term Loans” (as defined in the Original Credit Agreement) denominated in Dollars to the Borrower. Such “Term Loans” shall be continued as, and shall constitute, Tranche A Term Loans hereunder. The Borrower hereby agrees and acknowledges that as of the Effective Date, the outstanding principal balance of the Tranche A Term Loans is set forth on Schedule I and shall for all purposes hereunder constitute and be referred to as Tranche A Term Loans and Term Loans hereunder, without constituting a novation, but in all cases subject to the terms and conditions applicable to Tranche A Term Loans and Term Loans hereunder. Once repaid, the principal amount of a Tranche A Term Loan (or portion thereof) may not be reborrowed.
(b) Tranche B Term Loans. Pursuant to the Existing Credit Agreement, certain of the Existing Lenders made “Tranche B Term Loans” (as defined in the Existing Credit Agreement) denominated in Dollars to the Borrower. Such “Tranche B Term Loans” shall be continued as, and shall constitute, Tranche B Term Loans hereunder. The Borrower hereby agrees and acknowledges that as of the Effective Date, the outstanding principal balance of the Tranche B Term Loans is set forth on Schedule I and shall for all purposes hereunder constitute and be referred to as Tranche B Term Loans and Term Loans hereunder, without constituting a novation, but in all cases subject to the terms and conditions applicable to Tranche B Term Loans and Term Loans hereunder. Once repaid, the principal amount of a Tranche B Term Loan (or portion thereof) may not be reborrowed.
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Section 2.3. Bid Rate Loans.
(a) Bid Rate Loans. In addition to borrowings of Tranche 1 Revolving Loans, at any time during the period from the Effective Date to but excluding the Revolving Termination Date, and so long as the Borrower continues to maintain an Investment Grade Rating from any two Ratings Agencies, the Borrower may, as set forth in this Section, request the Tranche 1 Revolving Lenders to make offers to make Bid Rate Loans to the Borrower in Dollars. The Tranche 1 Revolving Lenders may, but shall have no obligation to, make such offers and the Borrower may, but shall have no obligation to, accept any such offers in the manner set forth in this Section.
(b) Requests for Bid Rate Loans. When the Borrower wishes to request from the Tranche 1 Revolving Lenders offers to make Bid Rate Loans, it shall give the Administrative Agent notice (a “Bid Rate Quote Request”) so as to be received no later than 9:00 a.m. Pacific time on (x) the Business Day immediately preceding the date of borrowing proposed therein, in the case of an Absolute Rate Auction and (y) the date 4 Business Days prior to the proposed date of borrowing, in the case of a LIBOR Auction. The Administrative Agent shall deliver to each Tranche 1 Revolving Lender a copy of each Bid Rate Quote Request promptly upon receipt thereof by the Administrative Agent. The Borrower may request offers to make Bid Rate Loans for up to 3 different Interest Periods in any one Bid Rate Quote Request; provided that if granted each separate Interest Period shall be deemed to be a separate borrowing (a “Bid Rate Borrowing”). Each Bid Rate Quote Request shall be substantially in the form of Exhibit P and shall specify as to each Bid Rate Borrowing all of the following:
(i) the proposed date of such Bid Rate Borrowing, which shall be a Business Day;
(ii) the aggregate amount of such Bid Rate Borrowing which shall be in a minimum amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof which shall not cause any of the limits specified in Section 2.16. to be violated;
(iii) whether the Bid Rate Quote Request is for LIBOR Margin Loans or Absolute Rate Loans;
(iv) the duration of the Interest Period applicable thereto, which shall not extend beyond the Revolving Termination Date; and
(v) an express statement as to whether such Bid Rate Loans may be prepaid without premium or penalty.
The Borrower shall not deliver any Bid Rate Quote Request within 5 Business Days of the giving of any other Bid Rate Quote Request and the Borrower shall not deliver more than 2 Bid Rate Quote Requests in any calendar month.
(c) Bid Rate Quotes.
(i) Each Tranche 1 Revolving Lender may submit one or more Bid Rate Quotes, each containing an offer to make a Bid Rate Loan in response to any Bid Rate Quote Request; provided that, if the Borrower’s request under Section 2.3.(b) specified more than one Interest Period, such Tranche 1 Revolving Lender may make a single submission containing only one Bid Rate Quote for each such Interest Period. Each Bid Rate Quote must be submitted to the Administrative Agent not later than 8:30 a.m. Pacific time (x) on the proposed date of borrowing, in the case of an Absolute Rate Auction and (y) on the date 3 Business Days prior to the proposed date of borrowing, in the case of a LIBOR Auction, and in either case the Administrative Agent shall disregard any Bid Rate Quote received after such time; provided that the Tranche 1 Revolving Lender then acting as the Administrative Agent may submit a Bid Rate Quote only if it notifies the Borrower of the terms of the offer contained therein not later than 30 minutes prior to the latest time by which the Tranche 1 Revolving Lenders must submit applicable Bid Rate Quotes. Any Bid Rate Quote so made shall be irrevocable except with the consent of the Administrative Agent given at the request of the Borrower. Such Bid Rate Loans may be funded by a Tranche 1 Revolving Lender’s Designated Lender (if any) as provided in Section 13.5.(h); provided that such Tranche 1 Revolving Lender shall not be required to specify in its Bid Rate Quote whether such Bid Rate Loan will be funded by such Designated Lender.
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(ii) Each Bid Rate Quote shall be substantially in the form of Exhibit Q and shall specify:
(A) the proposed date of borrowing and the Interest Period therefor;
(B) the principal amount of the Bid Rate Loan for which each such offer is being made; provided that the aggregate principal amount of all Bid Rate Loans for which a Tranche 1 Revolving Lender submits Bid Rate Quotes (x) may be greater or less than the Tranche 1 Revolving Commitment of such Tranche 1 Revolving Lender but
(y) shall not exceed the principal amount of the Bid Rate Borrowing for a particular Interest Period for which offers were requested; provided further that any Bid Rate Quote shall be in a minimum amount of $5,000,000 and integral multiples of $100,000 in excess thereof;
(C) in the case of an Absolute Rate Auction, the rate of interest per annum (rounded upwards, if necessary, to the nearest one-hundredth of one percent (0.01%)) offered for each such Absolute Rate Loan (the “Absolute Rate”);
(D) in the case of a LIBOR Auction, the margin above or below applicable USD LIBOR (the “LIBOR Margin”) offered for each such LIBOR Margin Loan, expressed as a percentage (rounded upwards, if necessary, to the nearest one-hundredth of one percent (0.01%)) to be added to (or subtracted from) the applicable USD LIBOR; and
(E) the identity of the quoting Tranche 1 Revolving Lender.
Unless otherwise agreed by the Administrative Agent and the Borrower, no Bid Rate Quote shall contain qualifying, conditional or similar language or propose terms other than or in addition to those set forth in the applicable Bid Rate Quote Request and, in particular, no Bid Rate Quote may be conditioned upon acceptance by the Borrower of all (or some specified minimum) of the principal amount of the Bid Rate Loan for which such Bid Rate Quote is being made.
(d) Notification by Administrative Agent. The Administrative Agent shall, as promptly as practicable after the Bid Rate Quotes are submitted (but in any event not later than 9:30 a.m. Pacific time (x) on the proposed date of borrowing, in the case of an Absolute Rate Auction or (y) on the date 3 Business Days prior to the proposed date of borrowing, in the case of a LIBOR Auction), notify the Borrower of the terms (i) of any Bid Rate Quote submitted by a Tranche 1 Revolving Lender that is in accordance with Section 2.3.(c) and (ii) of any Bid Rate Quote that amends, modifies or is otherwise inconsistent with a previous Bid Rate Quote submitted by such Tranche 1 Revolving Lender with respect to the same Bid Rate Quote Request. Any such subsequent Bid Rate Quote shall be disregarded by the Administrative Agent unless such subsequent Bid Rate Quote is submitted solely to correct a manifest error in such former Bid Rate Quote. The Administrative Agent’s notice to the Borrower shall specify (A) the aggregate principal amount of the Bid Rate Borrowing for which offers have been received and (B) the principal amounts and Absolute Rates or LIBOR Margins, as applicable, so offered by each Tranche 1 Revolving Lender (identifying the Tranche 1 Revolving Lender that made such Bid Rate Quote).
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(e) Acceptance by Borrower.
(i) Not later than 10:30 a.m. Pacific time (x) on the proposed date of borrowing, in the case of an Absolute Rate Auction and (y) on the date 3 Business Days prior to the proposed date of borrowing, in the case of a LIBOR Auction, the Borrower shall notify the Administrative Agent of its acceptance or nonacceptance of the Bid Rate Quotes so notified to it pursuant to Section 2.3.(d). which notice shall be in the form of Exhibit R. In the case of acceptance, such notice shall specify the aggregate principal amount of Bid Rate Quotes for each Interest Period that are accepted. The failure of the Borrower to give such notice by such time shall constitute nonacceptance. The Borrower may accept any Bid Rate Quote in whole or in part; provided that:
(A) the aggregate principal amount of each Bid Rate Borrowing may not exceed the applicable amount set forth in the related Bid Rate Quote Request;
(B) the aggregate principal amount of each Bid Rate Borrowing shall comply with the provisions of Section 2.3.(b)(ii) and together with all other Bid Rate Loans then outstanding shall not cause the limits specified in Section 2.16. to be violated;
(C) acceptance of Bid Rate Quotes may be made only in ascending order of Absolute Rates or LIBOR Margins, as applicable, in each case beginning with the lowest rate so offered;
(D) any acceptance in part by the Borrower shall be in a minimum amount of $5,000,000 and integral multiples of $100,000 in excess thereof; and
(E) the Borrower may not accept any Bid Rate Quote that fails to comply with Section 2.3.(c) or otherwise fails to comply with the requirements of this Agreement.
(ii) If Bid Rate Quotes are made by two or more Tranche 1 Revolving Lenders with the same Absolute Rates or LIBOR Margins, as applicable, for a greater aggregate principal amount than the amount in respect of which Bid Rate Quotes are permitted to be accepted for the related Interest Period, the principal amount of Bid Rate Loans in respect of which such Bid Rate Quotes are accepted shall be allocated by the Administrative Agent among such Tranche 1 Revolving Lenders in proportion to the aggregate principal amount of such Bid Rate Quotes. Determinations by the Administrative Agent of the amounts of Bid Rate Loans shall be conclusive in the absence of manifest error.
(f) Obligation to Make Bid Rate Loans. The Administrative Agent shall promptly (and in any event not later than (x) 11:30 a.m. Pacific time on the proposed date of borrowing of Absolute Rate Loans and (y) on the date 3 Business Days prior to the proposed date of borrowing of LIBOR Margin Loans) notify each Tranche 1 Revolving Lender that submitted a Bid Rate Quote as to whose Bid Rate Quote has been accepted and the amount and rate thereof. A Tranche 1 Revolving Lender who is notified that it has been selected to make a Bid Rate Loan may designate its Designated Lender (if any) to fund such Bid Rate Loan on its behalf, as described in Section 13.5.(g). Any Designated Lender which funds a Bid Rate Loan shall on and after the time of such funding become the obligee in respect of such Bid Rate Loan and be entitled to receive payment thereof when due. No Tranche 1 Revolving Lender shall be relieved of its obligation to fund a Bid Rate Loan, and no Designated Lender shall assume such obligation, prior to the time the applicable Bid Rate Loan is funded. Any Tranche 1 Revolving Lender whose offer to make any Bid Rate Loan has been accepted shall, not later than 12:30 p.m. Pacific time on the date specified for the making of such Loan, make the amount of such Loan available to the Administrative Agent at its Principal Office in immediately available funds, for the account of the Borrower. The amount so received by the Administrative Agent shall, subject to the terms and conditions of this Agreement, be made available to the Borrower not later than 1:30 p.m. Pacific time on such date by depositing the same, in immediately available funds, in an account of the Borrower designated by the Borrower.
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(g) No Effect on Tranche 1 Revolving Commitment. Except for the purpose and to the extent expressly stated in Sections 2.13. and 2.16., the amount of any Bid Rate Loan made by any Tranche 1 Revolving Lender shall not constitute a utilization of such Tranche 1 Revolving Lender’s Tranche 1 Revolving Commitment.
Section 2.4. Letters of Credit.
(a) Letters of Credit. Subject to the terms and conditions of this Agreement, including without limitation, Section 2.16., each Issuing Bank severally and not jointly, on behalf of the Tranche 1 Revolving Lenders, agrees to issue for the account of the Borrower (which may be in support of the obligations of the Borrower or in support of obligations of a Subsidiary of the Borrower) during the period from and including the Effective Date to, but excluding, the date 5 days prior to the Revolving Termination Date, one or more standby letters of credit (each a “Letter of Credit”) denominated in Dollars up to a maximum aggregate Stated Amount at any one time outstanding not to exceed $60,000,000 as such amount may be reduced from time to time in accordance with the terms hereof (the “L/C Commitment Amount”); provided, that an Issuing Bank shall not be obligated to (but may, in its sole discretion) issue any Letter of Credit if, after giving effect to such issuance, the aggregate Stated Amount of outstanding Letters of Credit issued by such Issuing Bank would exceed the lesser of (i) one-fifth of the L/C Commitment Amount and (ii) the Commitment of such Issuing Bank in its capacity as a Tranche 1 Revolving Lender. The parties hereto agree that each of the Existing Letters of Credit, if any, shall, from and after the Effective Date, be deemed to be a Letter of Credit issued under this Agreement.
(b) Terms of Letters of Credit. At the time of issuance, the amount, form, terms and conditions of each Letter of Credit, and of any drafts or acceptances thereunder, shall be subject to approval by the applicable Issuing Bank and the Borrower, such approvals not to be unreasonably withheld or delayed. Notwithstanding the foregoing, in no event may (i) the expiration date of any Letter of Credit extend beyond the date that is 5 days prior to the Revolving Termination Date, or (ii) any Letter of Credit have a duration in excess of one year; provided, however, that a Letter of Credit may contain a provision providing for the automatic extension of the expiration date in the absence of a notice of non-renewal from the applicable Issuing Bank but in no event shall any such provision permit the extension of the current expiration date of such Letter of Credit beyond the earlier of (x) the date that is 5 days prior to the Revolving Termination Date and (y) the date one year after the current expiration date. Notwithstanding the foregoing, a Letter of Credit may, as a result of its express terms or as the result of the effect of an automatic extension provision, have an expiration date of not more than one year beyond the Revolving Termination Date (any such Letter of Credit being referred to as an “Extended Letter of Credit”), so long as the Borrower delivers to the Administrative Agent for its benefit and the benefit of the applicable Issuing Bank and the Tranche 1 Revolving Lenders no later than 5 days prior to the Revolving Termination Date, Cash Collateral for such Letter of Credit in an amount equal to the Stated Amount of such Letter of Credit; provided, that the obligations of the Borrower under this Section in respect of such Extended Letters of Credit shall survive the termination of this Agreement and shall remain in effect until no such Extended Letters of Credit remain outstanding. If the Borrower fails to provide Cash Collateral with respect to any Extended Letter of Credit by the date 5 days prior to the Revolving Termination Date, such failure shall be treated as a drawing under such Extended Letter of Credit (in an amount equal to the maximum Stated Amount of such Extended Letter of Credit), which shall be reimbursed (or participations therein funded) by the Tranche 1 Revolving Lenders in accordance with the immediately following subsections (i) and (j), with the proceeds being utilized to provide Cash Collateral for such Extended Letter of Credit. The initial Stated Amount of each Letter of Credit shall be at least $50,000 (or such lesser amount as may be acceptable to the Borrower, the applicable Issuing Bank and the Administrative Agent).
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(c) Requests for Issuance of Letters of Credit. The Borrower shall give the Issuing Bank selected by the Borrower to issue a Letter of Credit and the Administrative Agent written notice at least 5 Business Days prior to the requested date of issuance of such Letter of Credit (or such shorter period as agreed to by the applicable Issuing Bank), such notice to describe in reasonable detail the proposed terms of such Letter of Credit and the nature of the transactions or obligations proposed to be supported by such Letter of Credit, and in any event shall set forth with respect to such Letter of Credit the proposed (i) initial Stated Amount, (ii) beneficiary, and (iii) expiration date. The Borrower shall also execute and deliver such customary applications and agreements for standby letters of credit, and other forms as reasonably requested from time to time by the applicable Issuing Bank. Provided the Borrower has given the notice prescribed by the first sentence of this subsection and delivered such applications and agreements referred to in the preceding sentence, subject to the other terms and conditions of this Agreement, including the satisfaction of any applicable conditions precedent set forth in Section 6.2., the applicable Issuing Bank shall issue the requested Letter of Credit on the requested date of issuance for the benefit of the stipulated beneficiary but in no event prior to the date 5 Business Days (or such shorter period as agreed to by the applicable Issuing Bank) following the date after which the applicable Issuing Bank has received all of the items required to be delivered to it under this subsection. The Issuing Bank shall not at any time be obligated to issue any Letter of Credit if such issuance would conflict with, or cause the Issuing Bank or any Tranche 1 Revolving Lender to exceed any limits imposed by, any Applicable Law. References herein to “issue” and derivations thereof with respect to Letters of Credit shall also include extensions or modifications of any outstanding Letters of Credit, unless the context otherwise requires. Upon the written request of the Borrower, an Issuing Bank shall deliver to the Borrower a copy of each Letter of Credit issued by such Issuing Bank within a reasonable time after the date of issuance thereof. To the extent any term of a Letter of Credit Document (excluding any certificate or other document presented by a beneficiary in connection with a drawing under such Letter of Credit) is inconsistent with a term of any Loan Document, the term of such Loan Document shall control. The Borrower shall examine the copy of any Letter of Credit or any amendment to a Letter of Credit that is delivered to it by the Issuing Bank and, in the event of any claim of noncompliance with the Borrower’s instructions or other irregularity, the Borrower will promptly (but in any event, within 5 Business Days after the later of (x) receipt by the beneficiary of such Letter of Credit of the original of, or amendment to, such Letter of Credit, as applicable and (y) receipt by the Borrower of a copy of such Letter of Credit or amendment, as applicable) notify the Issuing Bank. The Borrower shall be conclusively deemed to have waived any such claim against the Issuing Bank and its correspondents unless such notice is given as aforesaid.
(d) Reimbursement Obligations. Upon receipt by an Issuing Bank from the beneficiary of a Letter of Credit issued by such Issuing Bank of any demand for payment under such Letter of Credit and such Issuing Bank’s determination that such demand for payment complies with the requirements of such Letter of Credit, such Issuing Bank shall promptly notify the Borrower and the Administrative Agent of the amount to be paid by such Issuing Bank as a result of such demand and the date on which payment is to be made by such Issuing Bank to such beneficiary in respect of such demand; provided, however, that an Issuing Bank’s failure to give, or delay in giving, such notice shall not discharge the Borrower in any respect from the applicable Reimbursement Obligation. The Borrower hereby absolutely, unconditionally and irrevocably agrees to pay and reimburse each applicable Issuing Bank for the amount of each demand for payment under such Letter of Credit at or prior to the date on which payment is to be made by such Issuing Bank to the beneficiary thereunder, without presentment, demand, protest or other formalities of any kind. Upon receipt by an Issuing Bank of any payment in respect of any Reimbursement Obligation in respect of a Letter of Credit issued by such Issuing Bank, such Issuing Bank shall promptly pay to each Tranche 1 Revolving Lender that has acquired a participation therein under the second sentence of the immediately following subsection (i) such Lender’s Tranche 1 Revolving Commitment Percentage of such payment.
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(e) Manner of Reimbursement. Upon its receipt of a notice referred to in the immediately preceding subsection (d), the Borrower shall advise the Administrative Agent and the applicable Issuing Bank whether or not the Borrower intends to borrow hereunder to finance its obligation to reimburse the applicable Issuing Bank for the amount of the related demand for payment and, if it does, the Borrower shall submit a timely request for such borrowing as provided in the applicable provisions of this Agreement. If the Borrower fails to so advise the Administrative Agent and such Issuing Bank, or if the Borrower fails to reimburse the applicable Issuing Bank for a demand for payment under a Letter of Credit issued by such Issuing Bank by the date of such payment, the failure of which the applicable Issuing Bank shall promptly notify the Administrative Agent, then (i) if the applicable conditions contained in Article VI. would permit the making of Tranche 1 Revolving Loans, the Borrower shall be deemed to have requested a borrowing of Tranche 1 Revolving Loans (which shall be Base Rate Loans) in an amount equal to the unpaid Reimbursement Obligation and the Administrative Agent shall give each Tranche 1 Revolving Lender prompt notice of the amount of the Tranche 1 Revolving Loan to be made available to the Administrative Agent not later than 10:00 a.m. Pacific time and (ii) if such conditions would not permit the making of Tranche 1 Revolving Loans, the provisions of subsection (j) of this Section shall apply. The amount limitations set forth in the second sentence of Section 2.1.(a) shall not apply to any borrowing of Base Rate Loans under this subsection.
(f) Effect of Letters of Credit on Tranche 1 Revolving Commitments. Upon the issuance by an Issuing Bank of any Letter of Credit and until such Letter of Credit shall have expired or been cancelled, the Tranche 1 Revolving Commitment of each Tranche 1 Revolving Lender shall be deemed to be utilized for all purposes of this Agreement in an amount equal to the product of (i) such Lender’s Tranche 1 Revolving Commitment Percentage and (ii) without duplication (A) the Stated Amount of such Letter of Credit plus (B) any related Reimbursement Obligations then outstanding.
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(g) Issuing Banks’ Duties Regarding Letters of Credit; Unconditional Nature of Reimbursement Obligations. In examining documents presented in connection with drawings under Letters of Credit and making payments under such Letters of Credit against such documents, each Issuing Bank shall only be required to use the same standard of care as it uses in connection with examining documents presented in connection with drawings under letters of credit in which it has not sold participations and making payments under such letters of credit. The Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, none of the Issuing Banks, Administrative Agent or any of the Lenders shall be responsible for, and the Borrower’s obligations in respect of Letters of Credit shall not be affected in any manner by, (i) the form, validity, sufficiency, accuracy, genuineness or legal effects of any document submitted by any party in connection with the application for and issuance of or any drawing honored under any Letter of Credit even if such document 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 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 Letter of Credit to comply fully with 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, telex, telecopy, electronic mail 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 Letter of Credit, or of the proceeds thereof; (vii) the misapplication by the beneficiary of any Letter of Credit or of the proceeds of any drawing under any Letter of Credit; or (viii) any consequences arising from causes beyond the control of the Issuing Banks, the Administrative Agent or the Lenders. None of the above shall affect, impair or prevent the vesting of any of the Issuing Banks’ or Administrative Agent’s rights or powers hereunder. Any action taken or omitted to be taken by an Issuing Bank under or in connection with any Letter of Credit issued by it, if taken or omitted in the absence of gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable judgment), shall not create against such Issuing Bank any liability to the Borrower, the Administrative Agent, any other Issuing Bank or any Lender. In this connection, the obligation of the Borrower to reimburse the applicable Issuing Bank for any drawing made under any Letter of Credit issued by such Issuing Bank, and to repay any Tranche 1 Revolving Loan made pursuant to the second sentence of the immediately preceding subsection (e), shall be absolute, unconditional and irrevocable and shall be paid strictly in accordance with the terms of this Agreement and any other applicable Letter of Credit Document under all circumstances whatsoever, including without limitation, the following circumstances: (A) any lack of validity or enforceability of any Letter of Credit Document or any term or provisions therein; (B) any amendment or waiver of or any consent to departure from all or any of the Letter of Credit Documents; (C) the existence of any claim, setoff, defense or other right which the Borrower may have at any time against any Issuing Bank, the Administrative Agent, any Lender, any beneficiary of a Letter of Credit or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or in the Letter of Credit Documents or any unrelated transaction; (D) any breach of contract or dispute between the Borrower, any Issuing Bank, the Administrative Agent, any Lender or any other Person; (E) any demand, statement or any other document presented under a Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein or made in connection therewith being untrue or inaccurate in any respect whatsoever; (F) any non-application or misapplication by the beneficiary of a Letter of Credit or of the proceeds of any drawing under such Letter of Credit; (G) payment by an Issuing Bank under any Letter of Credit issued by it against presentation of a draft or certificate which does not strictly comply with the terms of such Letter of Credit; and (H) any other act, omission to act, delay or circumstance whatsoever that might, but for the provisions of this Section, constitute a legal or equitable defense to or discharge of, or provide a right of setoff against, the Borrower’s Reimbursement Obligations. Notwithstanding anything to the contrary contained in this Section or Section 13.9., but not in limitation of the Borrower’s unconditional obligation to reimburse the applicable Issuing Bank for any drawing made under a Letter of Credit issued by such Issuing Bank as provided in this Section and to repay any Tranche 1 Revolving Loan made pursuant to the second sentence of the immediately preceding subsection (e), the Borrower shall have no obligation to indemnify the Administrative Agent, any Issuing Bank or any Lender in respect of any liability incurred by the Administrative Agent, such Issuing Bank or such Lender arising solely out of the gross negligence or willful misconduct of the Administrative Agent, such Issuing Bank or such Lender in respect of a Letter of Credit as determined by a court of competent jurisdiction in a final, non-appealable judgment. Except as otherwise provided in this Section, nothing in this Section shall affect any rights the Borrower may have with respect to the gross negligence or willful misconduct of the Administrative Agent, any Issuing Bank or any Lender with respect to any Letter of Credit.
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(h) Amendments, Etc. The issuance by an Issuing Bank of any amendment, supplement or other modification to any Letter of Credit issued by it constituting a Credit Event under clause (b) of the definition of such term shall be subject to the same conditions applicable under this Agreement to the issuance of new Letters of Credit (including, without limitation, that the request therefor be made through the applicable Issuing Bank and the Administrative Agent), and no amendment, supplement or other modification to any Letter of Credit shall be issued unless either (i) the respective Letter of Credit affected thereby would have complied with such conditions had it originally been issued hereunder in such amended, supplemented or modified form or (ii) the Administrative Agent and the Tranche 1 Revolving Lenders, if any, required by Section 13.6. shall have consented thereto. In connection with any such amendment, supplement or other modification, the Borrower shall pay the fees, if any, payable under the last sentence of Section 3.5.(c).
(i) Tranche 1 Revolving Lenders’ Participation in Letters of Credit. Immediately upon (i) the Effective Date with respect to any Existing Letters of Credit and (ii) the issuance by an Issuing Bank of any other Letter of Credit, each Tranche 1 Revolving Lender shall be deemed to have absolutely, irrevocably and unconditionally purchased and received from such Issuing Bank, without recourse or warranty, an undivided interest and participation to the extent of such Lender’s Tranche 1 Revolving Commitment Percentage of the liability of such Issuing Bank with respect to such Letter of Credit and each Tranche 1 Revolving Lender thereby shall absolutely, unconditionally and irrevocably assume, as primary obligor and not as surety, and shall be unconditionally obligated to such Issuing Bank to pay and discharge when due, such Lender’s Tranche 1 Revolving Commitment Percentage of such Issuing Bank’s liability under such Letter of Credit. In addition, upon the making of each payment by a Tranche 1 Revolving Lender to the Administrative Agent for the account of an Issuing Bank in respect of any Letter of Credit issued by such Issuing Bank pursuant to the immediately following subsection (j), such Lender shall, automatically and without any further action on the part of any Issuing Bank, the Administrative Agent or such Lender, acquire (i) a participation in an amount equal to such payment in the Reimbursement Obligation owing to such Issuing Bank by the Borrower in respect of such Letter of Credit and (ii) a participation in a percentage equal to such Lender’s Tranche 1 Revolving Commitment Percentage in any interest or other amounts payable by the Borrower in respect of such Reimbursement Obligation (other than the Fees payable to such Issuing Bank pursuant to the second and the last sentences of Section 3.5.(c)).
(j) Payment Obligation of Tranche 1 Revolving Lenders. Each Tranche 1 Revolving Lender severally agrees to pay to the Administrative Agent, for the account of the applicable Issuing Bank, on demand in immediately available funds in Dollars the amount of such Lender’s Tranche 1 Revolving Commitment Percentage of each drawing paid by such Issuing Bank under each Letter of Credit issued by such Issuing Bank to the extent such amount is not reimbursed by the Borrower pursuant to the immediately preceding subsection (d); provided, however, that in respect of any drawing under any Letter of Credit, the maximum amount that any Tranche 1 Revolving Lender shall be required to fund, whether as a Tranche 1 Revolving Loan or as a participation, shall not exceed such Lender’s Tranche 1 Revolving Commitment Percentage of such drawing except as otherwise provided in Section 3.9.(d). If the notice referenced in the second sentence of Section 2.4.(e) is received by a Tranche 1 Revolving Lender not later than 9:00 a.m. Pacific time, then such Lender shall make such payment available to the Administrative Agent not later than 12:00 p.m. Pacific time on the date of demand therefor; otherwise, such payment shall be made available to the Administrative Agent not later than 11:00 a.m. Pacific time on the next succeeding Business Day. Each Tranche 1 Revolving Lender’s obligation to make such payments to the Administrative Agent under this subsection, and the Administrative Agent’s right to receive the same for the account of the applicable Issuing Bank, shall be absolute, irrevocable and unconditional and shall not be affected in any way by any circumstance whatsoever, including without limitation, (i) the failure of any other Tranche 1 Revolving Lender to make its payment under this subsection, (ii) the financial condition of the Borrower or any other Loan Party, (iii) the existence of any Default or Event of Default, including any Event of Default described in Section 11.1.(e) or 11.1.(f), (iv) the termination of the Tranche 1 Revolving Commitments or (v) the delivery of Cash Collateral in respect of any Extended Letter of Credit. Each such payment to the Administrative Agent for the account of any Issuing Bank shall be made without any offset, abatement, withholding or deduction whatsoever.
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(k) Information to Tranche 1 Revolving Lenders. Promptly following any change in any Letter of Credit outstanding, the applicable Issuing Bank shall deliver to the Administrative Agent, which shall promptly deliver the same to each Tranche 1 Revolving Lender and the Borrower, a notice describing the aggregate amount of all Letters of Credit issued by such Issuing Bank and outstanding at such time. Upon the request of any Tranche 1 Revolving Lender from time to time, each Issuing Bank shall deliver any other information reasonably requested by such Lender with respect to each Letter of Credit issued by such Issuing Bank and then outstanding. Other than as set forth in this subsection, the Issuing Banks shall have no duty to notify the Lenders regarding the issuance or other matters regarding Letters of Credit issued hereunder. The failure of any Issuing Bank to perform its requirements under this subsection shall not relieve any Tranche 1 Revolving Lender from its obligations under the immediately preceding subsection (j).
(l) Extended Letters of Credit. Each Tranche 1 Revolving Lender confirms that its obligations under the immediately preceding subsections (i) and (j) shall be reinstated in full and apply if the delivery of any Cash Collateral in respect of an Extended Letter of Credit is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise.
(m) Applicability of ISP; Limitation of Liability. Unless otherwise expressly agreed by the applicable Issuing Bank and the Borrower when a Letter of Credit is issued, the rules of the ISP shall apply to each standby Letter of Credit issued by such Issuing Bank. Notwithstanding the foregoing, no Issuing Bank shall be responsible to the Borrower for, and each Issuing Bank’s rights and remedies against the Borrower shall not be impaired by, any action or inaction of such Issuing Bank required or permitted under any law, order, or practice that is required or permitted to be applied to any Letter of Credit or this Agreement, including Applicable Law or any order of a jurisdiction where such Issuing Bank or the beneficiary is located, the practice stated in the ISP or in the decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade-International Financial Services Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice.
(n) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder, is in support of any obligations of, or is for the account of, a Subsidiary of the Borrower, the Borrower shall be obligated to reimburse the applicable Issuing Bank hereunder for any and all drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance of Letters of Credit for the account of its Subsidiaries inures to the benefit of the Borrower and that the Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.
Section 2.5. Swingline Loans.
(a) Swingline Loans. Subject to the terms and conditions hereof, including without limitation Section 2.16., each Swingline Lender severally agrees to make Swingline Loans in Dollars to the Borrower, during the period from the Effective Date to but excluding the Swingline Maturity Date, in an aggregate principal amount at any one time outstanding up to, but not exceeding, the lesser (such lesser amount being referred to as the “Swingline Availability”) of (i) $60,000,000 for such Swingline Lender, as such amount may be reduced from time to time in accordance with the terms hereof and (ii) the Tranche 1 Revolving Commitment of such Swingline Lender in its capacity as a Tranche 1 Revolving Lender minus the aggregate outstanding principal amount of Tranche 1 Revolving Loans of such Swingline Lender in its capacity as a Tranche 1 Revolving Lender. With respect to any Swingline Lender, if at any time the aggregate principal amount of the Swingline Loans held by such Swingline Lender outstanding at such time exceeds the Swingline Availability of such Swingline Lender at such time, the Borrower shall promptly pay the Administrative Agent for the account of such Swingline Lender the amount of such excess and, with respect to all Swingline Lenders, if at any time the aggregate principal amount of the Swingline Loans outstanding at such time exceeds $300,000,000, the Borrower shall promptly pay the Administrative Agent for the account of the Swingline Lenders the amount of such excess. Subject to the terms and conditions of this Agreement, the Borrower may borrow, repay and reborrow Swingline Loans hereunder. For the avoidance of doubt, subject to the terms of this Agreement, (i) the Borrower may request a Swingline Loan from one Swingline Lender without having to make a request for a Swingline Loan from any other Swingline Lender, and (ii) outstanding Swingline Loans may be repaid in such order as the Borrower may elect.
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(b) Procedure for Borrowing Swingline Loans. The Borrower shall give the Administrative Agent and the applicable Swingline Lender notice pursuant to a Notice of Swingline Borrowing or telephonic notice of each borrowing of a Swingline Loan. Each Notice of Swingline Borrowing shall be delivered to the Administrative Agent and such Swingline Lender no later than 9:00 a.m. Pacific time on the proposed date of such borrowing. Any telephonic notice shall include all information to be specified in a written Notice of Swingline Borrowing and shall be promptly confirmed in writing by the Borrower pursuant to a Notice of Swingline Borrowing sent to such Swingline Lender by telecopy on the same day of the giving of such telephonic notice. Not later than 11:00 a.m. Pacific time on the date of the requested Swingline Loan and subject to satisfaction of the applicable conditions set forth in Section 6.2. for such borrowing, such Swingline Lender will make the proceeds of such Swingline Loan available to the Administrative Agent at its Principal Office in immediately available funds, for the account of the Borrower. The amount so received by the Administrative Agent shall, subject to the terms and conditions of this Agreement, be made available to the Borrower not later than 1:00 p.m. Pacific time on such date by depositing the same, in immediately available funds, in an account of the Borrower designated by the Borrower.
(c)
Interest. Swingline Loans shall bear interest at a per annum rate equal to the LIBOR Market Index
Rate (or,
if the LIBOR Market Rate is unavailable or unascertainable, Base Rate) as in effect from time to time plus the Applicable
Margin for Revolving Loans that are LIBOR LoansEurocurrency
Rate Loans (or, if the LIBOR Market Rate is unavailable or unascertainable, Base Rate Loans) (or at such other rate or rates
as the Borrower and the applicable Swingline Lender may agree from time to time in writing). Interest on Swingline Loans is solely for
the account of the applicable Swingline Lender (except to the extent a Tranche 1 Revolving Lender acquires a participating interest in
a Swingline Loan pursuant to the immediately following subsection (e)). All accrued and unpaid interest on Swingline Loans shall be payable
on the dates and in the manner provided in Section 2.6. with respect to interest on Base Rate Loans (except as the applicable Swingline
Lender and the Borrower may otherwise agree in writing in connection with any particular Swingline Loan).
(d) Swingline Loan Amounts, Etc. Each Swingline Loan shall be in the minimum amount of $500,000 and integral multiples of $100,000 in excess thereof, or such other minimum amounts agreed to by the applicable Swingline Lender and the Borrower. Any voluntary prepayment of a Swingline Loan must be in integral multiples of $100,000 or the aggregate principal amount of all outstanding Swingline Loans (or such other minimum amounts upon which the applicable Swingline Lender and the Borrower may agree) and in connection with any such prepayment, the Borrower must give such Swingline Lender and the Administrative Agent prior written notice thereof no later than 10:00 a.m. Pacific time on the day prior to the date of such prepayment. The Swingline Loans shall, in addition to this Agreement, be evidenced by the Swingline Note.
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(e) Repayment
and Participations of Swingline Loans. The Borrower agrees to repay each Swingline Loan within one Business Day of demand
therefor by the applicable Swingline Lender and, in any event, within 10 Business Days after the date such Swingline Loan was made.
Notwithstanding the foregoing, the Borrower shall repay the entire outstanding principal amount of, and all accrued but unpaid
interest on, the Swingline Loans on the Swingline Maturity Date (or such earlier date as the applicable Swingline Lender and the
Borrower may agree in writing). In lieu of demanding repayment of any outstanding Swingline Loan from the Borrower, the applicable
Swingline Lender may, if it has not yet received notice from the Borrower of a repayment, on behalf of the Borrower (which hereby
irrevocably directs such Swingline Lender to act on its behalf), request a borrowing of Revolving Loans that are LIBOREurocurrency
Rate Loans or RFR Loans with,
if applicable, a one month Interest Period from the Tranche 1 Revolving Lenders in an amount equal to the principal
balance of such Swingline Loan. The amount limitations contained in the second sentence of Section 2.1.(a) shall not apply to any
borrowing of such Tranche 1 Revolving Loans made pursuant to this subsection. The applicable Swingline Lender shall give notice to
the Administrative Agent of any such borrowing of Revolving Loans not later than 9:00 a.m. Pacific time at least one Business Day
prior to the proposed date of such borrowing. Promptly after receipt of such notice of borrowing of Tranche 1 Revolving Loans from
the applicable Swingline Lender under the immediately preceding sentence, the Administrative Agent shall notify each Tranche 1
Revolving Lender of the proposed borrowing. Not later than 9:00 a.m. Pacific time on the proposed date of such borrowing, each
Tranche 1 Revolving Lender will make available to the Administrative Agent at the Principal Office for the account of the applicable
Swingline Lender, in immediately available funds, the proceeds of the Tranche 1 Revolving Loan to be made by such Lender. The
Administrative Agent shall pay the proceeds of such Tranche 1 Revolving Loans to the applicable Swingline Lender, which shall apply
such proceeds to repay such Swingline Loan. If the Tranche 1 Revolving Lenders are prohibited from making Tranche 1 Revolving Loans
required to be made under this subsection for any reason whatsoever, including without limitation, the existence of any of the
Defaults or Events of Default described in Section 11.1.(e) or 11.1.(f), each Tranche 1 Revolving Lender shall purchase from the
applicable Swingline Lender, without recourse or warranty, an undivided interest and participation to the extent of such
Lender’s Tranche 1 Revolving Commitment Percentage of such Swingline Loan, by directly purchasing a participation in such
Swingline Loan in such amount and paying the proceeds thereof to the Administrative Agent for the account of the applicable
Swingline Lender in Dollars and in immediately available funds. A Tranche 1 Revolving Lender’s obligation to purchase such a
participation in a Swingline Loan shall be absolute and unconditional and shall not be affected by any circumstance whatsoever,
including without limitation, (i) any claim of setoff, counterclaim, recoupment, defense or other right which such Lender or any
other Person may have or claim against the Administrative Agent, the Swingline Lender or any other Person whatsoever, (ii) the
existence of a Default or Event of Default (including without limitation, any of the Defaults or Events of Default described in
Section 11.1.(e) or 11.1.(f)), or the termination of any Tranche 1 Revolving Lender’s Tranche 1 Revolving Commitment, (iii)
the existence (or alleged existence) of an event or condition which has had or could have a Material Adverse Effect, (iv) any breach
of any Loan Document by the Administrative Agent, any Lender, the Borrower or any other Loan Party, or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing. If such amount is not in fact made available to the
Swingline Lender by any Tranche 1 Revolving Lender, the Swingline Lender shall be entitled to recover such amount on demand from
such Lender, together with accrued interest thereon for each day from the date of demand thereof, at the Federal Funds Rate. If such
Lender does not pay such amount forthwith upon the Swingline Lender’s demand therefor, and until such time as such Lender
makes the required payment, the Swingline Lender shall be deemed to continue to have outstanding Swingline Loans in the amount of
such unpaid participation obligation for all purposes of the Loan Documents (other than those provisions requiring the other Tranche
1 Revolving Lenders to purchase a participation therein). Further, such Lender shall be deemed to have assigned any and all payments
made of principal and interest on its Tranche 1 Revolving Loans, and any other amounts due it hereunder, to the Swingline Lender to
fund Swingline Loans in the amount of the participation in Swingline Loans that such Lender failed to purchase pursuant to this
Section until such amount has been purchased (as a result of such assignment or otherwise).
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Section 2.6. Rates and Payment of Interest on Loans.
(a) Rates. Revolving Loans and Term Loans may be (i) with respect to Revolving Loans denominated in Dollars or Term Loans (which, for the avoidance of doubt, shall remain denominated in Dollars), (A) Base Rate Loans or (B)(I) prior to the USD LIBOR Transition Date, Eurocurrency Rate Loans or (II) on and after the USD LIBOR Transition Date, (1) if the Unadjusted Benchmark Replacement that has replaced USD LIBOR pursuant to Section 5.2(c)(i) is Adjusted Daily Simple RFR for Dollars, then (x) prior to the Term RFR Transition Date for Dollars, Daily Simple RFR Loans or (y) on and after the Term RFR Transition Date for Dollars, Term RFR Loans or (2) if the Unadjusted Benchmark Replacement that has replaced USD LIBOR pursuant to Section 5.2(c)(i) is Adjusted Term SOFR, Term RFR Loans, (ii) with respect to Revolving Loans denominated in Euros, Yen, Australian Dollars, Canadian Dollars or other Currencies (other than Dollars, Sterling, Swiss Francs or Singapore Dollars), Eurocurrency Rate Loans or (iii) with respect to Revolving Loans denominated in Sterling, Swiss Francs or Singapore Dollars, (A) prior to the Term RFR Transition Date for such Currency, Daily Simple RFR Loans or (B) on and after the Term RFR Transition Date for such Currency, Term RFR Loans, each as further provided herein. The Borrower promises to pay to the Administrative Agent for the account of each Lender interest on the unpaid principal amount of each Loan made by such Lender for the period from and including the date of the making of such Loan to but excluding the date such Loan shall be paid in full, at the following per annum rates:
(i) during such periods as such Loan is a Base Rate Loan, at the Base Rate (as in effect from time to time), plus the Applicable Margin for Base Rate Loans of the applicable Class;
(ii)
during such periods as such Loan is a LIBORDaily
Simple RFR Loan, at LIBOR for such Loan for the Interest Period therefor,the
applicable Adjusted Daily Simple RFR plus the Applicable Margin for LIBORRFR
Loans of the applicable Class;
(iii) during such period as such Loan is a Term RFR Loan, the applicable Term RFR plus the Applicable Margin for RFR Loans of the applicable Class;
(iv) during such period as such Loan is a Eurocurrency Rate Loans, the applicable Adjusted Eurocurrency Rate plus the Applicable Margin for Eurocurrency Rate Loans of the applicable Class;
(iiiv)
if such Loan is an Absolute Rate Loan, at the Absolute Rate for such Loan for the Interest Period therefor quoted by the Lender making
such Loan in accordance with Section 2.3.; and
(ivvi)
if such Loan is a LIBOR Margin Loan, at USD
LIBOR for such Loan for the Interest Period therefor plus the LIBOR Margin quoted by the Lender making such Loan in
accordance with Section 2.3.; and
(v)
if such Loan is a Foreign Currency
Rate Loan, at the Foreign Currency Rate for such Loan for the Interest Period therefor, plus the
Applicable Margin for Foreign Currency Rate Loans.
Notwithstanding the foregoing, while an Event of Default exists under Section 11.1.(a), 11.1.(e) or 11.1.(f), or in the case of any other Event of Default, at the direction of the Requisite Lenders, the Borrower shall pay to the Administrative Agent for the account of each Class of Lenders and the Issuing Banks, as the case may be, interest at the Post-Default Rate on the outstanding principal amount of any Class of Loans made by such Lender, on all Reimbursement Obligations and on any other amount payable by the Borrower hereunder or under the Notes held by such Lender to or for the account of such Lender (including without limitation, accrued but unpaid interest to the extent permitted under Applicable Law).
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(b)
Payment of Interest. All accrued and unpaid interest on the outstanding principal amount of each Loan shall be payable
(i) for Loans that are not LIBOR Loans or Foreign CurrencyBase
Rate Loans or
Daily Simple RFR Loans, monthly in arrears on the last Business Day of each month, commencing with the first full calendar
month occurring after the Effective Date, (ii) for LIBOR Loans and Foreign CurrencyEurocurrency
Rate Loans and
Term RFR Loans, on the last day of each Interest Period and, if such Interest Period is longer than three months, at three
month intervals following the first day of such Interest Period, and (iii) on any date on which the principal balance of such Loan is
due and payable in full (whether at maturity, due to acceleration or otherwise). Interest payable at the Post-Default Rate shall be payable
from time to time on demand. All determinations by the Administrative Agent of an interest rate hereunder shall be conclusive and binding
on the Lenders and the Borrower for all purposes, absent manifest error.
(c) Borrower Information Used to Determine Applicable Interest Rates. The parties understand that the applicable interest rate for the Obligations and certain fees set forth herein may be determined and/or adjusted from time to time based upon certain information to be provided or certified to the Lenders by the Borrower (the “Borrower Information”). If it is subsequently determined that any such Borrower Information was incorrect (for whatever reason, including without limitation because of a subsequent restatement of earnings by the Borrower) at the time it was delivered to the Administrative Agent, and if the applicable interest rate or fees calculated for any period were lower than they should have been had the correct information been timely provided, then, such interest rate and such fees for such period shall be automatically recalculated using correct Borrower Information. The Administrative Agent shall promptly notify the Borrower in writing of any additional interest and fees due because of such recalculation, and the Borrower shall pay such additional interest or fees due to the Administrative Agent, for the account of each Lender, within 5 Business Days of receipt of such written notice. Any recalculation of interest or fees required by this provision shall survive the termination of this Agreement, and this provision shall not in any way limit any of the Administrative Agent’s, any Issuing Bank’s, or any Lender’s other rights under this Agreement.
(d)
Interest Act (Canada). For the purposes of the Interest Act (Canada), (a) whenever a rate of interest or fee rate hereunder
is calculated on the basis of a year (the “deemed year”) that contains fewer days than the actual number of days in the calendar
year of calculation, such rate of interest or fee rate shall be expressed as a yearly rate by multiplying such rate of interest or fee
rate by the actual number of days in the calendar year of calculation and dividing it by the number of days in the deemed year, (b) the
principle of deemed reinvestment of interest shall not apply to any interest calculation hereunder and (c) the rates of interest stipulated
herein are intended to be nominal rates and not effective rates or yields. This Section shall apply solely with respect to Foreign
Currency Rate Loans denominated in Canadian Dollars.
Section 2.7. Number of Interest Periods.
There may be no more
than (a) 15 different Interest Periods for Revolving Loans that are LIBOREurocurrency
Rate Loans, Bid Rate Loans and Foreign Currency RateTerm
RFR Loans, collectively, outstanding at the same time and (b) 4 different Interest Periods for LIBOR
Loans that are Term Loans outstanding at the same time.
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Section 2.8. Repayment of Loans.
(a) Revolving Loans. The Borrower shall repay the entire outstanding principal amount of, and all accrued but unpaid interest on, each Class of Revolving Loans on the Revolving Termination Date.
(b) Term Loans. The Borrower shall repay the entire outstanding principal amount of, and all accrued but unpaid interest on, each Class of Term Loans on the Term Loan Maturity Date for such Class.
(c) Bid Rate Loans. The Borrower shall repay the entire outstanding principal amount of, and all accrued but unpaid interest on, each Bid Rate Loan on the last day of the Interest Period of such Bid Rate Loan.
Section 2.9. Prepayments.
(a)
Optional. Subject to Section 5.4., (i) the Borrower may prepay any Loan (other than a Bid Rate Loan) at any time without
premium or penalty, and (ii) the Borrower may prepay at any time without premium or penalty any Bid Rate Loan that has been made with
respect to a Bid Rate Quote Request containing an express statement that such Bid Rate Loan could be prepaid without premium or penalty.
Any other Bid Rate Loan may only be prepaid with the prior written consent of the Lender holding such Bid Rate Loan. The Borrower shall
give the Administrative Agent (A)
at least 1 Business Day prior written notice of the prepayment of any Loan that is a Base Rate Loan and,
(B) at least 3 Business Days prior written notice of the prepayment of any Loan denominated
in Dollars that is a LIBOREurocurrency
Rate Loan, Foreign Currency Rate Loan or Bid Rate Loan,
(C) at least 5 RFR Business Days prior written notice of the prepayment of any Loan denominated in Dollars that is a Daily Simple RFR
Loan, (D) at least 3 RFR Business Days prior written notice of the prepayment of any Loan denominated in Dollars that is a Term RFR Loan,
(E) at least 5 RFR Business Days prior written notice of the prepayment of any Loan denominated in a Foreign Currency that is a Term
RFR Loan, and (F) at least 4 Business Days prior written notice of the prepayment of any Loan denominated in a Foreign Currency that
is a Eurocurrency Rate Loan (or 5 Business Days in the case of a prepayment of Eurocurrency Rate Loans denominated in a Special Notice
Currency). Any such notice may be conditioned upon the receipt of replacement financing or any other event and may be withdrawn
at any time prior to the prepayment if such event does not occur. Each voluntary prepayment of Loans (other than a prepayment of all
outstanding Loans of a Class) shall be in an aggregate minimum amount of $1,000,000 and integral multiples of $100,000 in excess thereof.
(b) Mandatory.
(i) Revolving Commitment Overadvances.
(A) Tranche 1 Revolving Commitment Overadvance. If at any time the aggregate principal amount of all outstanding Tranche 1 Revolving Loans, Swingline Loans and Bid Rate Loans, together with the aggregate amount of all Letter of Credit Liabilities, exceeds the aggregate amount of the Tranche 1 Revolving Commitments (except due to Currency fluctuations which is governed by clause (iii) below), the Borrower shall immediately upon demand pay to the Administrative Agent for the account of the Tranche 1 Revolving Lenders, the amount of such excess.
(B) Tranche 2 Revolving Commitment Overadvance. If at any time the aggregate principal amount of all outstanding Tranche 2 Revolving Loans exceeds the aggregate amount of the Tranche 2 Revolving Commitments (except due to Currency fluctuations which is governed by clause (iii) below), the Borrower shall immediately upon demand pay to the Administrative Agent for the account of the Tranche 2 Revolving Lenders, the amount of such excess.
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(ii) Bid Rate Facility Overadvance. If at any time the aggregate principal amount of all outstanding Bid Rate Loans exceeds one-half of the aggregate amount of all Tranche 1 Revolving Commitments at such time, then the Borrower shall immediately pay to the Administrative Agent for the accounts of the applicable Lenders the amount of such excess.
(iii) Prepayments Due to Currency Fluctuations. The Administrative Agent shall calculate the Dollar Equivalent of the Tranche 1 Revolving Credit Exposure and the Tranche 2 Revolving Credit Exposure (but only with respect to Revolving Loans of such Class denominated in a Foreign Currency) on each applicable Revaluation Date. If on the Revaluation Date that occurs on the last day of an Interest Period, or such other times as the Administrative Agent may determine in its reasonable discretion, such calculation reflects that, as of such Revaluation Date, the Dollar Equivalent of such Class of Revolving Credit Exposure exceeds an amount equal to 105% of the Revolving Commitments of such Class then in effect, then, within 5 Business Days after notice of such calculation from the Administrative Agent to the Borrower, the Borrower shall prepay the Foreign Currency Rate Loans of such Class in an aggregate amount sufficient to reduce the Tranche 1 Revolving Credit Exposure or Tranche 2 Revolving Credit Exposure, as applicable, of Foreign Currency Rate Loans of such Class as of such date of payment to an amount not exceeding 100% of the Revolving Commitments of such Class of Foreign Currency Rate Loans then in effect.
(iv)
Application of Mandatory Prepayments. Amounts paid under the preceding subsections (b)(i)(A) and (b)(iii) (in the case
of any prepayment of Tranche 1 Revolving Loans or Cash Collateralization of Letter of Credit Liabilities), shall be applied to pay all
amounts of principal outstanding on the Tranche 1 Revolving Loans, the Swingline Loans and any Reimbursement Obligations pro rata in
accordance with Section 3.2. and if any Letters of Credit are outstanding at such time, the remainder, if any, shall be deposited into
the Letter of Credit Collateral Account for application to any Reimbursement Obligations. Amounts paid under the preceding subsections
(b)(i)(B) and (b)(iii) (in the case of any prepayment of Tranche 2 Revolving Loans) shall be applied to pay all amounts of principal
outstanding on the Tranche 2 Revolving Loans pro rata in accordance with Section 3.2. Amounts paid under the preceding subsection (b)(ii)
shall be applied in accordance with Section 3.2.(g). If the Borrower is required to pay any outstanding LIBOREurocurrency
Rate Loans, RFR Loans, Bid Rate Loans or Foreign Currency Rate Loans by reason of this Section prior to the end of the applicable
Interest Period therefor, the Borrower shall pay all amounts due, if any, under Section 5.4.
(c) No Effect on Derivatives Contracts. No repayment or prepayment of the Loans pursuant to this Section shall affect any of the Borrower’s obligations under any Derivatives Contracts entered into with respect to the Loans.
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Section 2.10. Continuation.
So long as no Event of
Default exists, the Borrower may on any Business Day, with respect to any LIBOR Loan or Foreign
CurrencyEurocurrency Rate
Loan or
a Term RFR Loan, elect to maintain such Loan or any portion thereof as a LIBOR Loan or
Foreign CurrencyEurocurrency Rate
Loan or
Term RFR Loan, as applicable, by selecting a new Interest Period for such Loan. Each Continuation of LIBOREurocurrency
Rate Loans or Foreign Currency RateTerm
RFR Loans of the same Class shall be in an aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000 in
excess of that amount, and each new Interest Period selected under this Section shall commence on the last day of the immediately
preceding Interest Period. Each selection of a new Interest Period shall be made by the Borrower giving to the Administrative Agent
a Notice of Continuation not later than, 9:00 a.m. Pacific time on the third Business
Day(i)
in the case of a Loan denominated in Dollars that is to be Continued as a Term RFR Loan, at least three RFR Business Days, (ii) in
the case of a Loan denominated in Dollars that is to be Continued as a Eurocurrency Rate Loan, at least three Business Days, (iii)
in the case of a Loan denominated in any Foreign Currency that is to be Continued as a Term RFR Loan, at least five RFR Business
Days, and (iv) in the case of a Loan denominated in any Foreign Currency that is to be Continued as Eurocurrency Rate Loan, at least
four Business Days (or five Business Days in the case of a Special Notice Currency), in each case, prior to the date of
any such Continuation. Such notice by the Borrower of a Continuation shall be by telecopy, electronic mail or other similar form of
communication in the form of a Notice of Continuation, specifying (a) the proposed date of such Continuation, (b) the LIBOREurocurrency
Rate Loans or Foreign Currency RateTerm
RFR Loans and Currency, as applicable, Class and portions thereof subject to such Continuation and (c) the duration of
the selected Interest Period, all of which shall be specified in such manner as is necessary to comply with all limitations on Loans
outstanding hereunder. Each Notice of Continuation shall be irrevocable by and binding on the Borrower once given. Promptly after
receipt of a Notice of Continuation, the Administrative Agent shall notify each Lender holding Loans being Continued of the proposed
Continuation. If the Borrower shall fail to select in a timely manner a new Interest Period for any LIBOR
Loan or Foreign CurrencyEurocurrency Rate
Loan or
Term RFR Loan in accordance with this Section, such Loan will automatically, on the last day of the current Interest
Period therefor, Continue as a LIBOREurocurrency
Rate Loan or Foreign Currency RateTerm
RFR Loan, as applicable, with an Interest Period of one month; provided, however that if an Event of
Default exists, (i) each such LIBOR LoanEurocurrency
Rate Loan and Term RFR Loan denominated in Dollars will automatically, on the last day of the current Interest Period
therefor, Convert into a Base Rate Loan notwithstanding the first sentence of Section 2.11. or the Borrower’s failure to
comply with any of the terms of such Section and (ii) each such Foreign
CurrencyEurocurrency Rate
Loan and
Term RFR Loan denominated in a Foreign Currency shall automatically, on the last day of the current Interest Period
therefor, Continue as a Foreign CurrencyEurocurrency Rate
Loan or
Term RFR Loan, as applicable, with an Interest Period of one month.
Section 2.11. Conversion.
The Borrower may
on any Business Day, upon the Borrower’s giving of a Notice of Conversion to the Administrative Agent by telecopy, electronic
mail or other similar form of communication, Convert all or a portion of a Loan of one Type into a
Loan of another Type(a)
any outstanding Base Rate Loans into one or more Eurocurrency Rate Loans or, after the USD LIBOR Transition Date, RFR Loans, (b)
all or any part of any Eurocurrency Rate Loans or Term RFR Loans denominated in Dollars into Base Rate Loans, and (c) all or any
part of any Daily Simple RFR Loans denominated in Dollars into Base Rate Loans; provided, however, that (i)
a Base Rate Loan may not be Converted into a LIBOREurocurrency
Rate Loan or an RFR Loan if an Event of Default exists and (ii) Loans of other
Typesdenominated
in Dollars shall not be converted into Loans
denominated in a Foreign Currency Rate Loans or vice versa. Each
Conversion of Base Rate Loans of the same Class into LIBOREurocurrency
Rate Loans or RFR Loans of the same Class shall be in an aggregate minimum amount of $5,000,000 and integral multiples of
$1,000,000 in excess of that amount. Each such Notice of Conversion shall be given not later than 9:00 a.m. Pacific time 3
Business Days prior to the date of any(i)
in the case of a Loan denominated in Dollars that is to be a Base Rate Loan, three Business Days, (ii) in the case of a Loan
denominated in Dollars that is to be a Daily Simple RFR Loan, at least five RFR Business Days, (iii) in the case of a Loan
denominated in Dollars that is to be a Term RFR Loan, at least three RFR Business Days, and (iv) in the case of a Loan denominated
in Dollars that is to be a Eurocurrency Rate Loan, at least three Business Days, in each case, before the day on which a proposed
Conversion of
such Loan is to
be effective. Promptly after receipt of a Notice of Conversion, the Administrative Agent shall notify each Lender holding
Loans being Converted of the proposed Conversion. Subject to the restrictions specified above, each Notice of Conversion shall be by
telecopy, electronic mail or other similar form of communication in the form of a Notice of Conversion specifying (a) the requested
date of such Conversion, (b) the Type and Class of Loan to be Converted, (c) the portion of such Type of Loan to be Converted, (d)
the Type of Loan such Loan is to be Converted into and (e) if such Conversion is into a LIBOREurocurrency
Rate Loan or Term RFR Loan, the requested duration of the Interest Period of such Loan. Each Notice of Conversion shall
be irrevocable by and binding on the Borrower once given.
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Section 2.12. Notes.
(a) Notes. Except in the case of a Lender that has notified the Administrative Agent in writing that it elects not to receive any Notes, (i) the Revolving Loans made by each Revolving Lender shall, in addition to this Agreement, also be evidenced by a Revolving Note, or a replacement Revolving Note, as applicable, payable to such Revolving Lender in a principal amount equal to the amount of its Tranche 1 Revolving Commitment or Tranche 2 Revolving Commitment, as applicable, as originally in effect and otherwise duly completed, (ii) the Bid Rate Loans made by a Tranche 1 Revolving Lender to the Borrower shall, in addition to this Agreement, also be evidenced by a Bid Rate Note, or replacement Bid Rate Note, as applicable, payable to such Tranche 1 Revolving Lender and (iii) the Term Loans made by a Term Loan Lender shall, in addition to this Agreement, also be evidenced by a Term Note, or replacement Term Note, as applicable, payable to such Term Loan Lender in a principal amount equal to the amount of such Lender’s Tranche A Term Loans or Tranche B Term Loans as originally in effect, as applicable, and otherwise duly completed. The Swingline Loans made by a Swingline Lender to the Borrower shall, in addition to this Agreement, also be evidenced by a Swingline Note, or replacement Swingline Note, as applicable, payable to the applicable Swingline Lender.
(b) Records. The date, amount (including Currency), interest rate, Class, Type and duration of Interest Periods (if applicable) of each Loan made by each Lender to the Borrower, and each payment made on account of the principal thereof, shall be recorded by such Lender on its books and such entries shall be binding on the Borrower absent manifest error; provided, however, that (i) the failure of a Lender to make any such record shall not affect the obligations of the Borrower under any of the Loan Documents and (ii) if there is a discrepancy between such records of a Lender and the statements of accounts maintained by the Administrative Agent in the Register, in the absence of manifest error, the statements of account maintained by the Administrative Agent in the Register shall be controlling.
(c) Lost, Stolen, Destroyed or Mutilated Notes. Upon receipt by the Borrower of (i) written notice from a Lender that a Note of such Lender has been lost, stolen, destroyed or mutilated, and (ii)(A) in the case of loss, theft or destruction, an unsecured agreement of indemnity from such Lender in form reasonably satisfactory to the Borrower, or (B) in the case of mutilation, upon surrender and cancellation of such Note, the Borrower shall at its own expense execute and deliver to such Lender a new Note dated the date of such lost, stolen, destroyed or mutilated Note.
Section 2.13. Voluntary Reductions of the Revolving Commitments.
The Borrower shall have the right to terminate or reduce the aggregate unused amount of the Tranche 1 Revolving Commitments (for which purpose use of the Tranche 1 Revolving Commitments shall be deemed to include the aggregate amount of all Letter of Credit Liabilities and the aggregate principal amount of all outstanding Bid Rate Loans and Swingline Loans) and the Tranche 2 Revolving Commitments, on a pro rata basis, at any time and from time to time without penalty or premium upon not less than 5 Business Days prior written notice to the Administrative Agent of each such termination or reduction, which notice shall specify the effective date thereof and the amount of any such reduction (which in the case of any partial reduction of Revolving Commitments shall not be less than $10,000,000 and integral multiples of $1,000,000 in excess of that amount in the aggregate) and shall be irrevocable once given and effective only upon receipt by the Administrative Agent (“Prepayment Notice”); provided, that a Prepayment Notice providing for termination of the Revolving Commitments may state that such Prepayment Notice is conditioned on the closing of other financing facilities, in which case such Prepayment Notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the date such termination of the Revolving Commitments is to become effective) if such condition is not satisfied. Promptly after receipt of a Prepayment Notice, the Administrative Agent shall notify each Revolving Lender of the proposed termination or reduction. Revolving Commitments, once reduced or terminated pursuant to this Section, may not be increased or reinstated. If the Revolving Commitments are terminated or reduced to zero, the Borrower shall pay all fees on the Revolving Commitments so reduced or terminated that have accrued to the date of such reduction or termination to the Administrative Agent for the account of the Revolving Lenders, including but not limited to any applicable compensation due to any Lender in accordance with Section 5.4.
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Section 2.14. Extension of Revolving Termination Date.
The Borrower may, not more than two times, request that the Administrative Agent and the Revolving Lenders extend the current Revolving Termination Date by 6 months per each request. The Borrower may exercise such right only by executing and delivering to the Administrative Agent at least 30 days but not more than 120 days prior to the current Revolving Termination Date, a written request for such extension (a “Revolving Extension Request”). The Administrative Agent shall notify the Lenders if it receives a Revolving Extension Request promptly upon receipt thereof. Subject to satisfaction of the following conditions, the Revolving Termination Date shall be extended for six months effective upon receipt by the Administrative Agent of a Revolving Extension Request and payment of the fee referred to in the following clause (y): (x) immediately prior to such extension and immediately after giving effect thereto, (A) no Default or Event of Default shall exist and (B) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such extension with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents or waived or consented to by applicable Lenders in accordance with the provisions of Section 13.6. and (y) the Borrower shall have paid the Fees payable under Section 3.5.(e). At any time prior to the effectiveness of any such extension, upon the Administrative Agent’s request, the Borrower shall deliver to the Administrative Agent a certificate from the chief executive officer or chief financial officer certifying the matters referred to in the immediately preceding clauses (x)(A) and (x)(B). The Revolving Termination Date may be extended only two times pursuant to this Section.
Section 2.15. Expiration Date of Letters of Credit Past Revolving Commitment Termination.
If on the date the Revolving Commitments are terminated or reduced to zero (whether voluntarily, by reason of the occurrence of an Event of Default or otherwise) there are any Letters of Credit outstanding hereunder and the aggregate Stated Amount of such Letters of Credit exceeds the balance of available funds on deposit in the Letter of Credit Collateral Account, then the Borrower shall, on such date, Cash Collateralize such Letters of Credit in the amount of such excess.
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Section 2.16. Amount Limitations.
Notwithstanding any other term of this Agreement or any other Loan Document, no Lender shall be required to make a Loan, no Tranche 1 Revolving Lender shall make any Bid Rate Loan, the Issuing Banks shall not be required to issue Letters of Credit and no reduction of any Class of Revolving Commitments pursuant to Section 2.13. shall take effect, if immediately after the making of such Loan, the issuance of such Letter of Credit or such reduction in such Class of Revolving Commitments:
(a) (i) the aggregate principal Dollar Equivalent of all outstanding Tranche 1 Revolving Loans, Bid Rate Loans and Swingline Loans, together with the aggregate amount of all Letter of Credit Liabilities, would exceed the aggregate amount of the Tranche 1 Revolving Commitments at such time or (ii) the aggregate principal Dollar Equivalent of all outstanding Tranche 2 Revolving Loans would exceed the aggregate amount of the Tranche 2 Revolving Commitments at such time; or
(b) the aggregate principal amount of all outstanding Bid Rate Loans would exceed 50.0% of the aggregate amount of the Tranche 1 Revolving Commitments at such time.
Section 2.17. Increase in Tranche 1 Revolving Commitments.
The Borrower
shall have the right at any time after the Effective Date and prior to the Revolving Termination Date to request increases in the
aggregate amount of the Tranche 1 Revolving Commitments by providing written notice thereof to the Administrative Agent, which
notice shall be irrevocable once given; provided, however, that after giving effect to any such increases the
aggregate amount of the Tranche 1 Revolving Commitments shall not exceed $3,700,000,000. Each such increase in the Tranche 1
Revolving Commitments must be an aggregate minimum amount of $50,000,000 and integral multiples of $10,000,000 in excess thereof
(or, in each case, in such less amounts as may be acceptable to the Administrative Agent and the Borrower). The Administrative
Agent, in consultation with the Borrower, shall manage all aspects of the syndication of such increase in the Tranche 1 Revolving
Commitments so as to achieve a syndication of such increase reasonably satisfactory to the Administrative Agent and the Borrower,
including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional
lenders to be approached with respect to any such increase and the allocations of any increase in the Tranche 1 Revolving
Commitments among such existing Lenders and/or other banks, financial institutions and other institutional lenders, in each case, as
reasonably agreed to by the Administrative Agent and the Borrower. No Lender shall be obligated in any way whatsoever to increase
its Tranche 1 Revolving Commitment or provide a new Tranche 1 Revolving Commitment, and any new Lender becoming a party to this
Agreement in connection with any such requested increase must be an Eligible Assignee. If a new Tranche 1 Revolving Lender becomes a
party to this Agreement, or if any existing Tranche 1 Revolving Lender is increasing its Tranche 1 Revolving Commitment, such Lender
shall on the date it becomes a Tranche 1 Revolving Lender hereunder (or in the case of an existing Tranche 1 Revolving Lender,
increases its Tranche 1 Revolving Commitment) (and as a condition thereto) purchase from the other Tranche 1 Revolving Lenders its
Tranche 1 Revolving Commitment Percentage (determined with respect to the Tranche 1 Revolving Lenders’ respective Tranche 1
Revolving Commitments after giving effect to the increase of the Tranche 1 Revolving Commitments) of any outstanding Tranche 1
Revolving Loans, by making available to the Administrative Agent for the account of such other Tranche 1 Revolving Lenders, in same
day fundsSame
Day Funds, an amount equal to (A) the portion of the outstanding principal amount of such Tranche 1 Revolving Loans to be
purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Tranche 1 Revolving Lenders
under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion
of the outstanding principal amount of such Tranche 1 Revolving Loans. The Borrower shall pay to the Tranche 1 Revolving Lenders
amounts payable, if any, to such Lenders under Section 5.4. as a result of the prepayment of any such Tranche 1 Revolving Loans.
Effecting any increase of the Tranche 1 Revolving Commitments under this Section is subject to the following conditions precedent:
(x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and
warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party
shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in
which case such representation or warranty shall be true and correct in all respects) on the effective date of such increase except
to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such
representations and warranties shall have been true and correct in all material respects (except in the case of a representation or
warranty qualified by materiality, in which case such representation or warranty shall have been true and correct in all respects)
on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted hereunder or
waived or consented to by the applicable Lenders in accordance with the provisions of Section 13.6., and (z) the Administrative
Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent: (i) if not
previously delivered to the Administrative Agent, copies certified by the Secretary or Assistant Secretary of each Loan Party of (A)
in the case of the Borrower, all corporate or other necessary action taken by the Borrower to authorize such increase and (B) in the
case of each Guarantor, all corporate or other necessary action taken by such Guarantor authorizing the guaranty of such increase;
(ii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering
such matters with respect to the increase of the Tranche 1 Revolving Commitments as reasonably requested by the Administrative
Agent; and (iii) except in the case of a Lender that has requested not to receive Notes, new Tranche 1 Revolving Notes and/or Bid
Rate Notes executed by the Borrower, payable to any such new Tranche 1 Revolving Lenders and replacement Tranche 1 Revolving Notes
and/or Bid Rate Notes, as applicable, executed by the Borrower, payable to any such existing Tranche 1 Revolving Lenders increasing
their respective Tranche 1 Revolving Commitments, in each case, in the amount of such Lender’s Tranche 1 Revolving Commitment
at the time of the effectiveness of the applicable increase in the aggregate amount of the Tranche 1 Revolving Commitments. In
connection with any increase in the aggregate amount of the Tranche 1 Revolving Commitments pursuant to this Section 2.17. any
Lender becoming a party hereto shall (1) execute such documents and agreements as the Administrative Agent may reasonably request
and (2) in the case of any Lender that is organized under the laws of a jurisdiction outside of the United States of America,
provide to the Administrative Agent, its name, address, tax identification number and/or such other information as shall be
necessary for the Administrative Agent to comply with “know your customer” and Anti-Money Laundering Laws, including
without limitation, the Patriot Act.
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Section 2.18. Funds Transfer Disbursements.
The Borrower hereby authorizes the Administrative Agent to disburse the proceeds of any Loan made by the Lenders or any of their Affiliates pursuant to the Loan Documents as requested by an authorized representative of the Borrower to any of the accounts designated in the Disbursement Instruction Agreement.
ARTICLE III. PAYMENTS, FEES AND OTHER GENERAL PROVISIONS
Section 3.1. Payments.
(a) Payments by Borrower. Except to the extent otherwise provided herein, all payments of principal, interest, Fees and other amounts to be made by the Borrower under this Agreement, the Notes or any other Loan Document shall be made in the Currency in which the related Loans were made (or in the case of any other Obligations, in the Currency originally disbursed (or if none of the foregoing is applicable, in Dollars)), in Same Day Funds, without setoff, deduction or counterclaim (excluding Taxes required to be withheld pursuant to Section 3.10.), to the Administrative Agent at the Principal Office, not later than 11:00 a.m. Pacific time on the date on which such payment shall become due (each such payment made after such time on such due date to be deemed to have been made on the next succeeding Business Day). Subject to Section 11.5., the Borrower shall, at the time of making each payment under this Agreement or any other Loan Document, specify to the Administrative Agent the amounts payable by the Borrower hereunder to which such payment is to be applied. Each payment received by the Administrative Agent for the account of a Lender under this Agreement or any Note shall be paid to such Lender by wire transfer of immediately available funds in accordance with the wiring instructions provided by such Lender to the Administrative Agent from time to time, for the account of such Lender at the applicable Lending Office of such Lender. Each payment received by the Administrative Agent for the account of an Issuing Bank under this Agreement shall be paid to such Issuing Bank by wire transfer of immediately available funds in accordance with the wiring instructions provided by such Issuing Bank to the Administrative Agent from time to time, for the account of such Issuing Bank. If the Administrative Agent fails to pay such amounts to such Lender or such Issuing Bank, as the case may be, within one Business Day of receipt of such amounts, the Administrative Agent shall pay interest on such amount until paid at a rate per annum equal to the Federal Funds Rate from time to time in effect. If the due date of any payment under this Agreement or any other Loan Document would otherwise fall on a day which is not a Business Day such date shall be extended to the next succeeding Business Day and interest shall continue to accrue at the rate, if any, applicable to such payment for the period of such extension.
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(b) Presumptions Regarding Payments by Borrower. Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or an Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may (but shall not be obligated to), in reliance upon such assumption, distribute to the Lenders or such Issuing Bank, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or such Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent on demand that amount so distributed to such Lender or such Issuing Bank, with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
Section 3.2. Pro Rata Treatment.
Except to the extent otherwise provided herein: (a) each borrowing from the Revolving Lenders under Sections 2.1.(a), 2.4.(e) and 2.5.(e) shall be made from the applicable Class of Revolving Lenders, each payment of the fees under Sections 3.5.(b), the first sentence of 3.5.(c), and 3.5.(e) shall be made for the account of the Revolving Lenders of the applicable Class, and each termination or reduction of the amount of the applicable Class of Revolving Commitments under Section 2.13. shall be applied to the respective Class of Revolving Commitments of the applicable Class of Revolving Lenders, pro rata according to the amounts of their respective Revolving Commitments of such Class; (b) each payment or prepayment of principal of Revolving Loans shall be made for the account of the Revolving Lenders of the applicable Class pro rata in accordance with the respective unpaid principal amounts of the Revolving Loans of such Class held by them; provided that, subject to Section 3.9., if immediately prior to giving effect to any such payment in respect of any Class of Revolving Loans the outstanding principal amount of the Revolving Loans of such Class shall not be held by the Revolving Lenders of such Class pro rata in accordance with their respective Revolving Commitments of such Class in effect at the time such Revolving Loans were made, then such payment shall be applied to the Revolving Loans of such Class in such manner as shall result, as nearly as is practicable, in the outstanding principal amount of the Revolving Loans of such Class being held by the Revolving Lenders of such Class pro rata in accordance with such respective Revolving Commitments; (c) [reserved]; (d) each payment or prepayment of principal of Term Loans shall be made for the account of the Term Loan Lenders of the applicable Class pro rata in accordance with the respective unpaid principal amounts of the Term Loans of such Class held by them; (e) each payment of interest on Loans of a Class shall be made for the account of the Lenders of such Class pro rata in accordance with the amounts of interest on such Loans of such Class then due and payable to the respective Lenders; (f) the Conversion and Continuation of Loans of a particular Type and Class (other than Conversions provided for by Sections 5.1.(c) and 5.5.) shall be made pro rata among the Lenders of such Class according to the amounts of their respective Loans of such Class and the then current Interest Period for each such Lender’s portion of each such Loan of such Type and Class shall be coterminous; (g) each prepayment of principal of Bid Rate Loans pursuant to Section 2.9.(b)(iv) shall be made for account of the Lenders then owed Bid Rate Loans pro rata in accordance with the respective unpaid principal amounts of the Bid Rate Loans then owing to each such Lender; (h) the Tranche 1 Revolving Lenders’ participation in, and payment obligations in respect of, Swingline Loans under Section 2.5., shall be in accordance with their respective Tranche 1 Revolving Commitment Percentages; and (i) the Tranche 1 Revolving Lenders’ participation in, and payment obligations in respect of, Letters of Credit under Section 2.4., shall be in accordance with their respective Tranche 1 Revolving Commitment Percentages. All payments of principal, interest, fees and other amounts in respect of the Swingline Loans shall be for the account of the applicable Swingline Lender only (except to the extent any Tranche 1 Revolving Lender shall have acquired a participating interest in any such Swingline Loan pursuant to Section 2.5.(e), in which case such payments shall be pro rata in accordance with such participating interests).
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Section 3.3. Sharing of Payments, Etc.
If a Lender shall obtain payment of any principal of, or interest on, any Loan of a Class made by it to the Borrower under this Agreement or shall obtain payment on any other Obligation owing by the Borrower or any other Loan Party through the exercise of any right of set-off, banker’s lien, counterclaim or similar right or otherwise or through voluntary prepayments directly to a Lender or other payments made by or on behalf of the Borrower or any other Loan Party to a Lender not in accordance with the terms of this Agreement and such payment should be distributed to the Lenders of the same Class in accordance with Section 3.2. or Section 11.5., as applicable, such Lender shall promptly purchase from the other Lenders of such Class participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans of such Class made by the other Lenders of such Class or other Obligations owed to such other Lenders in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders of such Class shall share the benefit of such payment (net of any reasonable expenses which may actually be incurred by such Lender in obtaining or preserving such benefit) in accordance with the requirements of Section 3.2. or Section 11.5., as applicable. To such end, all the Lenders of such Class shall make appropriate adjustments among themselves (by the resale of participations sold or otherwise) if such payment is rescinded or must otherwise be restored. The Borrower agrees that any Lender of such Class so purchasing a participation (or direct interest) in the Loans or other Obligations owed to such other Lenders of such Class may exercise all rights of set-off, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans of such Class in the amount of such participation. Nothing contained herein shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise and retain the benefits of exercising, any such right with respect to any other indebtedness or obligation of the Borrower.
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Section 3.4. Several Obligations.
No Lender shall be responsible for the failure of any other Lender to make a Loan or to perform any other obligation to be made or performed by such other Lender hereunder, and the failure of any Lender to make a Loan or to perform any other obligation to be made or performed by it hereunder shall not relieve the obligation of any other Lender to make any Loan or to perform any other obligation to be made or performed by such other Lender.
Section 3.5. Fees.
(a) Closing Fee. On the Effective Date, the Borrower agrees to pay to the Administrative Agent, the Lead Arrangers and each Lender all fees as have been agreed to in writing by the Borrower, the Administrative Agent and the Lead Arrangers.
(b) Revolving Facility Fees. During the period from the Effective Date to but excluding the Revolving Termination Date, the Borrower agrees to pay to the Administrative Agent for the account of the Revolving Lenders of each Class of Revolving Loans a facility fee in Dollars equal to the daily aggregate amount of the Revolving Commitments of such Class (whether or not utilized) times a rate per annum equal to the Applicable Revolving Facility Fee. Such fee shall be payable quarterly in arrears on the first day of each January, April, July and October during the term of this Agreement and on the Revolving Termination Date or any earlier date of termination of the Revolving Commitments of such Class or reduction of the Revolving Commitments of such Class to zero. The Borrower acknowledges that the fee payable hereunder is a bona fide commitment fee and is intended as reasonable compensation to the Revolving Lenders for committing to make funds available to the Borrower as described herein and for no other purposes.
(c) Letter
of Credit Fees. The Borrower agrees to pay to the Administrative Agent for the account of each Tranche 1 Revolving Lender a
letter of credit fee in Dollars at a rate per annum equal to the Applicable Margin for Tranche 1 Revolving Loans that are LIBOREurocurrency
Rate Loans times the daily average Stated Amount of each Letter of Credit for the period from and including the date of
issuance of such Letter of Credit (x) to and including the date such Letter of Credit expires or is cancelled or terminated or (y)
to but excluding the date such Letter of Credit is drawn in full; provided, however, that notwithstanding anything to
the contrary contained herein, during any period that the Post-Default Rate is payable in accordance with Section 2.6.(a), such
letter of credit fees shall accrue at the rate per annum equal to the Applicable Margin for Tranche 1 Revolving Loans that are LIBOREurocurrency
Rate Loans as set forth above plus 2.00% per annum. In addition to such fees, the Borrower shall pay to each
Issuing Bank solely for its own account, a fronting fee in Dollars in respect of each Letter of Credit issued by such Issuing Bank
equal to one-eighth of one percent (0.125%) of the initial Stated Amount of such Letter of Credit; provided, however,
in no event shall the aggregate amount of such fee in respect of any Letter of Credit be less than $500. The fees provided for in
this subsection shall be nonrefundable and payable, in the case of the fee provided for in the first sentence, in arrears (i)
quarterly on the first day of January, April, July and October, (ii) on the Revolving Termination Date, (iii) on
the date the Revolving Commitments are terminated or reduced to zero and (iv) thereafter from time to time on demand of the
Administrative Agent and in the case of the fee provided for in the second sentence, at the time of issuance of such Letter of
Credit. The Borrower shall pay directly to the applicable Issuing Bank from time to time on demand all commissions, charges, costs
and expenses in the amounts customarily charged or incurred by such Issuing Bank from time to time in like circumstances with
respect to the issuance, amendment, renewal or extension of any Letter of Credit or any other transaction relating thereto.
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(d) Bid Rate Loan Fees. The Borrower agrees to pay to the Administrative Agent such fees for services rendered by the Administrative Agent in connection with the Bid Rate Loans as shall be separately agreed upon between the Borrower and the Administrative Agent.
(e) Revolving Extension Fee. Each time the Borrower exercises its right to extend the Revolving Termination Date in accordance with Section 2.14., the Borrower shall pay to the Administrative Agent for the account of each Revolving Lender a fee in Dollars equal to five-eightieths of one percent (0.0625%) of the amount of such Revolving Lender’s Revolving Commitment of each Class (whether or not utilized). Such fee shall be paid to the Administrative Agent prior to, and as a condition to, such extension.
(f) Administrative and Other Fees. The Borrower agrees to pay the administrative and other fees of the Administrative Agent as provided in the Fee Letter and as may be otherwise agreed to in writing from time to time by the Borrower and the Administrative Agent.
Section 3.6. Computations.
Unless otherwise expressly set forth herein, any accrued interest on any Loan denominated in Dollars, any Fees or any other Obligations due hereunder shall be computed on the basis of a year of 360 days and the actual number of days elapsed. All computations of interest for Revolving Loans denominated in Sterling, Australian Dollars, Hong Kong Dollars, Singapore Dollars, Canadian Dollars and any other Foreign Currency where the practice in the relevant foreign market is to compute interest on the basis of a year of 365 or 366 days, as the case may be, shall, in each case, be computed on the basis of a year of 365 or 366 days, as the case may be, in each case for the actual number of days elapsed. All computations of interest on Revolving Loans denominated in Yen or any other Foreign Currency where the practice in the relevant foreign market is to compute interest on the basis of a year of 360 days shall be computed on the basis of a year of 360 days and the actual number of days elapsed.
Section 3.7. Usury.
In no event shall the amount of interest due or payable on the Loans or other Obligations exceed the maximum rate of interest allowed by Applicable Law and, if any such payment is paid by the Borrower or any other Loan Party or received by any Lender, then such excess sum shall be credited as a payment of principal, unless the Borrower shall notify the respective Lender in writing that the Borrower elects to have such excess sum returned to it forthwith. It is the express intent of the parties hereto that the Borrower not pay and the Lenders not receive, directly or indirectly, in any manner whatsoever, interest in excess of that which may be lawfully paid by the Borrower under Applicable Law. The parties hereto hereby agree and stipulate that the only charge imposed upon the Borrower for the use of money in connection with this Agreement is and shall be the interest specifically described in Sections 2.6.(a)(i) through (iv) and, with respect to Swingline Loans, in Section 2.5.(c). Notwithstanding the foregoing, the parties hereto further agree and stipulate that all agency fees, syndication fees, facility fees, ticking fees, closing fees, letter of credit fees, underwriting fees, default charges, late charges, funding or “breakage” charges, increased cost charges, attorneys’ fees and reimbursement for costs and expenses paid by the Administrative Agent or any Lender to third parties or for damages incurred by the Administrative Agent or any Lender, in each case, in connection with the transactions contemplated by this Agreement and the other Loan Documents, are charges made to compensate the Administrative Agent or any such Lender for underwriting or administrative services and costs or losses performed or incurred, and to be performed or incurred, by the Administrative Agent and the Lenders in connection with this Agreement and shall under no circumstances be deemed to be charges for the use of money. All charges other than charges for the use of money shall be fully earned and nonrefundable when due.
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Section 3.8. Statements of Account; Xxxx Lead Date Request.
(a) The Administrative Agent will account to the Borrower monthly with a statement of Loans, accrued interest and Fees, charges and payments made pursuant to this Agreement and the other Loan Documents, and, subject to the entries in the Register, which shall be controlling, such account rendered by the Administrative Agent shall be deemed conclusive upon the Borrower absent manifest error. The failure of the Administrative Agent to deliver such a statement of accounts shall not relieve or discharge the Borrower from any of its Obligations.
(b) By written notice to the Administrative Agent, the Borrower may request to receive monthly xxxxxxxx on a date (the “Xxxx Lead Date”) that is prior to the first day of a month. The Administrative Agent will submit to the Borrower monthly xxxxxxxx, which will consist of the actual interest and principal due through the Xxxx Lead Date plus projected interest and principal due through the balance, if any, of such month. Any necessary adjustments in the applicable interest rate and/or principal payments due or made between a Xxxx Lead Date and the end of a month will be reflected as an additional charge (or credit) in the billing for the next following month. Neither the failure of the Administrative Agent to submit a Xxxx Lead Date billing nor any error in any such billing will excuse the Borrower’s obligation to make full payment of all amounts due under this Agreement. In its sole discretion, the Administrative Agent may cancel or modify the terms of such request which cancellation or modification will be effective upon written notification to the Borrower. Should the Borrower request a Xxxx Lead Date, the Administrative Agent shall not be required to prepare a month end invoice.
Section 3.9. Defaulting Lenders.
Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by Applicable Law:
(a) 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 the definitions of Requisite Lenders and Requisite Class Lenders and in Section 13.6.
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(b) 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 Article XI. or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 13.3. shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, in the case of a Defaulting Lender that is a Tranche 1 Revolving Lender, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the Issuing Banks and the Swingline Lenders hereunder; third, in the case of a Defaulting Lender that is a Tranche 1 Revolving Lender, to Cash Collateralize the Issuing Banks’ Fronting Exposures with respect to such Defaulting Lender in accordance with subsection (e) below; fourth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) in the case of a Defaulting Lender that is a Tranche 1 Revolving Lender, Cash Collateralize the Issuing Banks’ future Fronting Exposures with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with subsection (e) below; sixth, to the payment of any amounts owing to the Lenders, the Issuing Banks or the Swingline Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender, any Issuing Bank or any Swingline 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 Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans of any Class or amounts owing by such Defaulting Lender under Section 2.4.(j) in respect of Letters of Credit (such amounts “L/C Disbursements”), in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Article VI. were satisfied or waived, such payment shall be applied solely to pay the Loans of such Class of, and L/C Disbursements owed to, all Non-Defaulting Lenders of the applicable Class on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Disbursements owed to, such Defaulting Lender until such time as all Loans of such Class and, as applicable, funded and unfunded participations in Letter of Credit Liabilities and Swingline Loans are held by the Tranche 1 Revolving Lenders pro rata in accordance with their respective Tranche 1 Revolving Commitment Percentages (determined without giving effect to the immediately following subsection (d)) and all Term Loans (if any) are held by the Term Loan Lenders pro rata as if there had been no Defaulting Lenders that are Term Loan Lenders. 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 subsection shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(c) Certain Fees.
(i) Each Defaulting Lender shall be entitled to receive any Fee payable under Section 3.5.(b) for any period during which that Lender is a Defaulting Lender only to extent allocable to the sum of (1) the outstanding principal amount of the Revolving Loans funded by it, and (2) in the case of a Defaulting Lender which is a Tranche 1 Revolving Lender, its Tranche 1 Revolving Commitment Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to the immediately following subsection (e).
(ii) Each Defaulting Lender that is a Tranche 1 Revolving Lender shall be entitled to receive the Fee payable under Section 3.5.(c) for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Tranche 1 Revolving Commitment Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to the immediately following subsection (e).
(iii) With respect to any Fee not required to be paid to any Defaulting Lender that is a Revolving Lender pursuant to the immediately preceding clause (i) or (ii) above, the Borrower shall (x) pay to each Non-Defaulting Lender that is a Tranche 1 Revolving Lender that portion of any such Fee otherwise payable to such Defaulting Lender that is a Tranche 1 Revolving Lender with respect to such Defaulting Lender’s participation in Letter of Credit Liabilities or Swingline Loans that has been reallocated to such Non-Defaulting Lender pursuant to the immediately following subsection (d), (y) pay to each Issuing Bank and each Swingline Lender, as applicable, the amount of any such Fee otherwise payable to such Defaulting Lender that is a Tranche 1 Revolving Lender to the extent allocable to such Issuing Bank’s or such Swingline Lender’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such Fee.
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(d) Reallocation of Participations to Reduce Fronting Exposure. In the case of a Defaulting Lender that is a Tranche 1 Revolving Lender, all or any part of such Defaulting Lender’s participation in Letter of Credit Liabilities and Swingline Loans shall be reallocated among the Non-Defaulting Lenders that are Tranche 1 Revolving Lenders in accordance with their respective Tranche 1 Revolving Commitment Percentages (determined without regard to such Defaulting Lender’s Tranche 1 Revolving Commitment) but only to the extent that (x) the conditions set forth in Article VI. are satisfied at the time of such reallocation, and (y) such reallocation does not cause the aggregate Tranche 1 Revolving Credit Exposure of any Non-Defaulting Lender that is a Tranche 1 Revolving Lender to exceed such Non-Defaulting Lender’s Tranche 1 Revolving Commitment. Subject to Section 13.20., no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Tranche 1 Revolving 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.
(e) Cash Collateral, Repayment of Swingline Loans.
(i) If the reallocation described in the immediately preceding subsection (d) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under law, (x) first, prepay Swingline Loans in an amount equal to the applicable Swingline Lender’s Fronting Exposure and (y) second, Cash Collateralize each Issuing Bank’s Fronting Exposure in accordance with the procedures set forth in this subsection.
(ii) At any time that there shall exist a Defaulting Lender that is a Tranche 1 Revolving Lender, within 1 Business Day following the written request of the Administrative Agent or any Issuing Bank (with a copy to the Administrative Agent), the Borrower shall Cash Collateralize such Issuing Bank’s Fronting Exposure with respect to such Defaulting Lender (determined after giving effect to the immediately preceding subsection (d) and any Cash Collateral provided by such Defaulting Lender) in an amount not less than the aggregate Fronting Exposure of such Issuing Bank with respect to Letters of Credit issued by such Issuing Bank and outstanding at such time.
(iii) The Borrower, and to the extent provided by any Defaulting Lender that is a Tranche 1 Revolving Lender, such Defaulting Lender, hereby grant to the Administrative Agent, for the benefit of the Issuing Banks, and agree to maintain, a first priority security interest in all such Cash Collateral as security for the obligation of Defaulting Lenders that are Tranche 1 Revolving Lenders to fund participations in respect of Letter of Credit Liabilities, to be applied pursuant to the immediately following clause (iv). 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 and the Issuing Banks as herein provided, or that the total amount of such Cash Collateral is less than the aggregate Fronting Exposure of the Issuing Banks with respect to Letters of Credit issued and outstanding at such time, 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 (after giving effect to any Cash Collateral provided by the Defaulting Lender that is a Tranche 1 Revolving Lender).
(iv) Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under this Section in respect of Letters of Credit shall be applied to the satisfaction of the obligation of a Defaulting Lender that is a Tranche 1 Revolving Lender to fund participations in respect of Letter of Credit Liabilities (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.
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(v) Cash Collateral (or the appropriate portion thereof) provided to reduce the Issuing Banks’ Fronting Exposures shall no longer be required to be held as Cash Collateral pursuant to this subsection following (x) the elimination of the applicable Fronting Exposure (including by the termination of Defaulting Lender status of the applicable Tranche 1 Revolving Lender), or (y) the determination by the Administrative Agent and the Issuing Banks that there exists excess Cash Collateral; provided that, subject to the immediately preceding subsection (b), the Person providing Cash Collateral and the Issuing Banks may (but shall not be obligated to) agree that Cash Collateral shall be held to support future anticipated Fronting Exposure or other obligations and to the extent that such Cash Collateral was provided by the Borrower, such Cash Collateral shall remain subject to the security interest granted pursuant to the Loan Documents.
(f) Defaulting Lender Cure. If the Borrower and the Administrative Agent, and solely in the case of a Defaulting Lender that is a Tranche 1 Revolving Lender, the Swingline Lenders and the Issuing Banks, 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, as applicable, (i) the Revolving Loans of the applicable Class and, in the case of any Defaulting Lender that is a Tranche 1 Revolving Lender, funded and unfunded participations in Letters of Credit and Swingline Loans, to be held pro rata by the Revolving Lenders of the applicable Class in accordance with their respective Revolving Commitment Percentages of such Class (determined without giving effect to the immediately preceding subsection (d)), and (ii) the Term Loans (if any) to be held by the Term Loan Lenders of the applicable Class pro rata as if there had been no Defaulting Lenders of such Class, 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.
(g) New Swingline Loans/Letters of Credit. So long as any Tranche 1 Revolving Lender is a Defaulting Lender, (i) the Swingline Lenders shall not be required to fund any Swingline Loans unless it is satisfied that it will have no Fronting Exposure after giving effect to such Swingline Loan and (ii) no Issuing Bank shall be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.
(h) Purchase of Defaulting Lender’s Commitment; Termination of Defaulting Lender.
(i) During any period that a Lender is a Defaulting Lender, the Borrower may, by the Borrower giving written notice thereof to the Administrative Agent, such Defaulting Lender and the other Lenders, demand that such Defaulting Lender assign its Revolving Commitments and Loans to an Eligible Assignee subject to and in accordance with the provisions of Section 13.5.(b). No party hereto shall have any obligation whatsoever to initiate any such replacement or to assist in finding an Eligible Assignee. In addition, any Lender who is not a Defaulting Lender may, but shall not be obligated, in its sole discretion, to acquire the face amount of all or a portion of such Defaulting Lender’s Revolving Commitments and Loans via an assignment subject to and in accordance with the provisions of Section 13.5.(b). In connection with any such assignment, such Defaulting Lender shall promptly execute all documents reasonably requested to effect such assignment, including an appropriate Assignment and Assumption and, notwithstanding Section 13.5.(b), shall pay to the Administrative Agent an assignment fee in the amount of $7,500. The exercise by the Borrower of its rights under this Section shall be at the Borrower’s sole cost and expense and at no cost or expense to the Administrative Agent or any of the Lenders.
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(ii) The Borrower may terminate the unused amount of the Revolving Commitment of any Revolving Lender that is a Defaulting Lender upon not less than 15 Business Days’ prior written notice to the Administrative Agent (which shall promptly notify the Lenders thereof), and in such event the provisions of Section 3.9.(b) will apply to all amounts thereafter paid by the Borrower for the account of such Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts); provided that (A) no Event of Default shall have occurred and be continuing, and (B) such termination shall not be deemed to be a waiver or release of any claim the Borrower, the Administrative Agent, any Issuing Bank, any Swingline Lender or any Lender may have against such Defaulting Lender.
Section 3.10. Taxes.
(a) Issuing Banks. For purposes of this Section, the term “Lender” includes each 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 the Borrower or any other Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by Applicable Law. If any Applicable Law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by the Borrower or other applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) 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 the Borrower. The Borrower and the other Loan Parties shall timely pay to the relevant Governmental Authority in accordance with Applicable Law, or at the option of the Administrative Agent timely reimburse it (within 10 days after written demand therefor) for the payment of, any Other Taxes.
(d) Indemnification by the Borrower. The Borrower and the other Loan Parties shall jointly and severally indemnify each Recipient, within 10 days after written demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
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(e) Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within 10 days after written demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower or another Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower and the other Loan Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 13.5. relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this subsection. The provisions of this subsection shall continue to inure to the benefit of an Administrative Agent following its resignation or removal as Administrative Agent.
(f) Evidence of Payments. As soon as practicable after any payment of Taxes by the Borrower or any other Loan Party to a Governmental Authority pursuant to this Section, the Borrower or such other Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(g) Status of Lenders.
(i) Any Recipient that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Recipient, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Recipient 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 the immediately following clauses (ii)(A), (ii)(B) and (ii)(D)) shall not be required if in the Recipient’s reasonable judgment such completion, execution or submission would subject such Recipient to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Recipient.
(ii) Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Person:
(A) any Recipient that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Recipient becomes a party to this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), an electronic copy (or an original if requested by the Borrower or the Administrative Agent) of an executed IRS Form W-9 (or any successor form) certifying that such Recipient is exempt from U.S. federal backup withholding tax;
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(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:
(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 Loan Document, an electronic copy (or an original if requested by the Borrower or the Administrative Agent) of an executed IRS Form W-8BEN or W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II) an electronic copy (or an original if requested by the Borrower or the Administrative Agent) of an executed 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 S-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 the Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue 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, as applicable; or
(IV) to the extent a Foreign Lender is not the beneficial owner, an electronic copy (or an original if requested by the Borrower or the Administrative Agent) of an executed IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, as applicable, a U.S. Tax Compliance Certificate substantially in the form of Exhibit S-2 or Exhibit S-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 S-4 on behalf of each such direct and indirect partner;
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(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), an electronic copy (or an original if requested by the Borrower or the Administrative Agent) of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) if a payment made to a Recipient under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Recipient 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 Recipient shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by Applicable Law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Recipient has complied with such Recipient’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement. For purposes of determining withholding Taxes imposed under FATCA, from and after the date of this Agreement, the Borrower and the Administrative Agent shall treat (and the Lenders hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
(E) If any successor Administrative Agent is not a U.S. Person, it shall deliver two duly completed copies of IRS Form W-8ECI (with respect to any payments to be received on its own behalf) and IRS Form W-8IMY (for all other payments) certifying that it is a “U.S. branch” and that the payments it receives for the account of others are not effectively connected with the conduct of its trade or business in the United States and that it is using such form as evidence of its agreement with the Loan Parties to be treated as a U.S. Person with respect to such payments (and the Loan Parties and Administrative Agent agree to so treat Administrative Agent as a U.S. Person with respect to such payments), with the effect that the Loan Parties can make payments to Administrative Agent without deduction or withholding of any Taxes imposed by the United States.
Each Recipient agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
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(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 (including by the payment of additional amounts pursuant to this Section), 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 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 subsection (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 subsection, in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this subsection 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 subsection 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 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Revolving Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
ARTICLE IV. ELIGIBILITY OF PROPERTIES
Section 4.1. Eligibility of Properties.
(a) Existing Unencumbered Assets. Subject to compliance with the terms and conditions of Section 6.1.(a), as of the Effective Date the parties hereto acknowledge and agree that the Properties listed on Schedule 4.1. are Unencumbered Assets as of the Effective Date.
(b) Additional Unencumbered Assets. After the Effective Date, a Property shall be included as an Unencumbered Asset upon delivery to the Administrative Agent of an Unencumbered Asset Certificate pursuant to Section 9.4.(d). setting forth the information required to be contained therein and assuming that such Property is included as an Unencumbered Asset. Subject to the terms and conditions of this Agreement, upon the Administrative Agent’s receipt of such certificate, such Property shall be included as an Unencumbered Asset.
(c) Alternative Acceptance Procedure for Additional Unencumbered Assets. Any Property that does not satisfy all of the requirements of an Unencumbered Asset shall be included only upon the written approval of the Requisite Lenders provided, however, that such approval shall only be a waiver of those requirements in the definition of Unencumbered Assets specifically set forth and approved therein with respect to such Property.
Section 4.2. Termination of Designation as Unencumbered Asset.
A Property shall cease to be included as an Unencumbered Asset for purposes of this Agreement if either (i) such Property ceases to satisfy the requirements of the definition of the term “Unencumbered Assets” applicable to it (with the termination effective immediately) or (ii) such Property is noted to have been removed as an Unencumbered Asset in an Unencumbered Asset Certificate subsequently submitted pursuant to this Agreement (with the termination effective as of the date of receipt by the Administrative Agent of such Unencumbered Asset Certificate). Notwithstanding the foregoing, no Property will be terminated as an Unencumbered Asset if (i) a Default or Event of Default exists or (ii) a Default or Event of Default would exist immediately after such Property is terminated as an Unencumbered Asset.
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ARTICLE V. YIELD PROTECTION, ETC.
Section 5.1. Additional Costs; Capital Adequacy.
(a) Capital Adequacy. If any Lender determines that any Regulatory Change affecting such Lender or any lending office of such Lender or such Lender’s holding company, if any, regarding capital or liquidity ratios or requirements, has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the Revolving Commitments of such Lender or the Loans made by, or participations in Letters of Credit or Swingline Loans held by, such Lender, to a level below that which such Lender or such Lender’s holding company could have achieved but for such Regulatory Change (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.
(b) Additional
Costs. In addition to, and not in limitation of the immediately preceding subsection, the Borrower shall promptly pay to the Administrative
Agent for the account of a Lender from time to time such amounts as such Lender may determine to be necessary to compensate such Lender
for any costs incurred by such Lender that it reasonably determines are attributable to its making or maintaining of any LIBOREurocurrency
Rate Loans, RFR
Loans or LIBOR Margin Loans or Foreign Currency Rate Loans or its obligation
to make any LIBOREurocurrency
Rate Loans or Foreign Currency RateRFR
Loans hereunder, any reduction in any amount receivable by such Lender under this Agreement or any of the other Loan Documents
in respect of any of such LIBOREurocurrency
Rate Loans, RFR
Loans or LIBOR Margin Loans or Foreign Currency Rate Loans or such obligation or the maintenance
by such Lender of capital in respect of its LIBOREurocurrency
Rate Loans, RFR
Loans or LIBOR Margin Loans or Foreign Currency Rate Loans or its Revolving Commitments (other
than any amounts included in the determination of “LIBORAdjusted
Eurocurrency Rate” in the definition thereof) (such increases in costs and reductions in amounts receivable being herein
called “Additional Costs”), resulting from any Regulatory Change that:
(i) changes
the basis of taxation of any amounts payable to such Lender under this Agreement or any of the other Loan Documents in respect of any
of such LIBOREurocurrency
Rate Loans, LIBOR Margin Loans or Foreign Currency RateRFR
Loans or its Revolving Commitments (other than Indemnified Taxes, Taxes described in clauses (b) through (d) of the definition
of Excluded Taxes and Connection Income Taxes);
(ii) imposes
or modifies any reserve, special deposit, compulsory loan, insurance charge or similar requirements (other than Regulation D of the Board
of Governors of the Federal Reserve System or other similar reserve requirement applicable to any other category of liabilities or category
of extensions of credit or other assets by reference to which the interest rate on LIBOREurocurrency
Rate Loans, or
LIBOR Margin Loans or Foreign Currency Rate Loans is determined to the extent
utilized when determining LIBOR or the Foreign Currency Rate, as applicable,“Adjusted
Eurocurrency Rate” for such Loans) relating to any extensions of credit or other assets of, or any deposits with or
other liabilities of, or other credit extended by, or any other acquisition of funds by such Lender (or its parent corporation), or any
commitment of such Lender (including, without limitation, the Revolving Commitments of such Lender hereunder); or
(iii) imposes on any Lender or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or the Loans made by such Lender.
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(c) Lender’s Suspension of LIBOREurocurrency
Rate Loans, LIBOR Margin Loans and Foreign Currency RateRFR
Loans. Without limiting the effect of the provisions of the immediately preceding subsections (a) and (b), if by reason of
any Regulatory Change, any Lender either (i) incurs Additional Costs based on or measured by the excess above a specified level of the
amount of a category of deposits or other liabilities of such Lender that includes deposits by reference to which the interest rate on
LIBOREurocurrency
Rate Loans, LIBOR Margin Loans or Foreign Currency RateRFR
Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such Lender that
includes LIBOREurocurrency
Rate Loans, LIBOR Margin Loans or Foreign Currency RateRFR
Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold,
then, if such Lender so elects by notice to the Borrower (with a copy to the Administrative Agent), the obligation of such Lender to
make or Continue, or to Convert Base Rate Loans into, LIBOR Loans and/or the obligation of such Revolving
Lender to make or Continue Foreign Currency RateEurocurrency
Rate Loans or RFR Loans and/or the obligation of a Tranche 1 Revolving Lender that has outstanding a Bid Rate Quote to make
LIBOR Margin Loans hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of
Section 5.5. shall apply).
(d) Additional Costs in Respect of Letters of Credit. Without limiting the obligations of the Borrower under the preceding subsections of this Section (but without duplication), if as a result of any Regulatory Change or any risk-based capital guideline or other requirement heretofore or hereafter issued by any Governmental Authority there shall be imposed, modified or deemed applicable any Tax (other than Indemnified Taxes, Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and Connection Income Taxes), reserve, special deposit, capital adequacy or similar requirement against or with respect to or measured by reference to Letters of Credit and the result shall be to increase the cost to an Issuing Bank of issuing (or any Tranche 1 Revolving Lender of purchasing participations in) or maintaining its obligation hereunder to issue (or purchase participations in) any Letter of Credit or reduce any amount receivable by such Issuing Bank or any Tranche 1 Revolving Lender hereunder in respect of any Letter of Credit, then, upon demand by such Issuing Bank or such Lender, the Borrower shall pay immediately to such Issuing Bank or, in the case of such Lender, to the Administrative Agent for the account of such Lender, from time to time as specified by such Issuing Bank or such Lender, such additional amounts as shall be sufficient to compensate such Issuing Bank or such Lender for such increased costs or reductions in amount.
(e) Notification and Determination of Additional Costs. Each of the Administrative Agent, each Issuing Bank and each Lender, as the case may be, agrees to notify the Borrower (and in the case of an Issuing Bank and or a Lender, to notify the Administrative Agent) in writing of any event occurring after the Agreement Date entitling the Administrative Agent, such Issuing Bank or such Lender to compensation under any of the preceding subsections of this Section as promptly as practicable; provided, however, that the failure of the Administrative Agent, any Issuing Bank or any Lender to give such notice shall not release the Borrower from any of its obligations hereunder; provided, further, that the Borrower shall not be required to compensate the Administrative Agent, an Issuing Bank or a Lender pursuant to this Section for any increased costs incurred or reductions suffered more than six months prior to the date that the Administrative Agent, such Issuing Bank or such Lender, as the case may be, notifies the Borrower of the Regulatory Change giving rise to such increased costs or reductions, and of the intention of the Administrative Agent, such Issuing Bank or such Lender to claim compensation therefor (except that, if the Regulatory Change giving rise to such increased costs or reductions is retroactive, then the six-month period referred to above shall be extended to include the period of retroactive effect thereof). The Administrative Agent, each Issuing Bank and each Lender, as the case may be, agrees to furnish to the Borrower (and in the case of an Issuing Bank or a Lender to the Administrative Agent as well) a certificate setting forth the basis and amount of each request for compensation under this Section. Determinations by the Administrative Agent, such Issuing Bank or such Lender, as the case may be, of the effect of any Regulatory Change shall, provided that such determinations are made on a reasonable basis and in good faith, be conclusive and binding for all purposes, absent manifest error. The Borrower shall pay the Administrative Agent, such Issuing Bank and or any such Lender, as the case may be, the amount shown as due on any such certificate within 10 days after receipt thereof.
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Section 5.2. Changed Circumstances.
(a)
Suspension of LIBOR Loans or Foreign Currency Rate Loans. Anything herein to the contrary notwithstanding,
(x) in the case of LIBOR Loans, unless and until a Replacement Rate is implemented in accordance with clause (c) of this Section 5.2.,
if on or prior to the determination of LIBOR for any Interest Period or (y) if on or prior to the determination of the Foreign Currency
Rate for any Interest Period:
(a) Circumstances Affecting Eurocurrency Rate, Adjusted Daily Simple RFR and Term RFR Availability.
(i)
Subject
to clause (c) below, in connection with any RFR Loan, a request therefor, a conversion to or continuation thereof or otherwise, if for
any reason (A) the Administrative Agent shall
reasonably determinesdetermine
(which determination shall be conclusive and
binding absent manifest error) that (x)
if Adjusted Daily Simple RFR is utilized in any calculations hereunder or under any other Loan Document with respect to any Obligations,
interest, fees, commissions or other amounts, reasonable and adequate means do not exist for ascertaining LIBOR
or such Foreign Currency Rate forAdjusted
Daily Simple RFR pursuant to the definition thereof or (y) if Term RFR is utilized in any calculations hereunder or under any other Loan
Document with respect to any Obligations, interest, fees, commissions or other amounts, reasonable and adequate means do not exist for
ascertaining Term RFR for the applicable Interest Period with respect to a proposed Term RFR Loan on or prior to the first day of such
Interest Period;
, (iiB)
the Administrative Agent reasonably determinesshall
determine (which determination shall be conclusive and
binding absent manifest error) that quotations of interest rates for the relevant
deposits referred to in the definition of LIBOR or Foreign Currency Rate for any relevant Currency, as applicable, are not being
provided in the relevant amounts or for the relevant maturities for purposes of determining rates of interest for LIBOR Loans or
such Foreign Currency Rate Loans, as applicable, as provided herein;a
fundamental change has occurred in the foreign exchange markets with respect to an applicable Foreign Currency (including changes in
national or international financial, political or economic conditions or currency exchange rates or exchange controls) or (C) the
Requisite Lenders shall reasonably determine (which determination shall be conclusive and binding absent manifest error) that (x) if
Adjusted Daily Simple RFR is utilized in any calculations hereunder or under any other Loan Document with respect to any
Obligations, interest, fees, commissions or other amounts, Adjusted Daily Simple RFR does not adequately and fairly reflect the cost
to such Lenders of making or maintaining such Loans or (y) if Term RFR is utilized in any calculations hereunder or under any other
Loan Document with respect to any Obligations, interest, fees, commissions or other amounts, Term RFR does not adequately and fairly
reflect the cost to such Lenders of making or maintaining such Loans during the applicable Interest Period and, in the case of (x)
or (y), the Requisite Lenders have provided notice of such determination to the Administrative Agent, then, in each case, the
Administrative Agent shall promptly give notice thereof to the Borrower. Upon notice thereof by the Administrative Agent to the
Borrower, any obligation of the Lenders to make RFR Loans in each such Currency, and any right of the Borrower to convert any Loan
in each such Currency (if applicable) or continue any Loan as an RFR Loan in each such Currency, shall be suspended (to the extent
of the affected RFR Loans or, in the case of Term RFR Loans, the affected Interest Periods) until the Administrative Agent (with
respect to clause (C), at the instruction of the Requisite Lenders) revokes such notice. Upon receipt of such notice, (A) the
Borrower may revoke any pending request for a borrowing of, conversion to or continuation of RFR Loans in each such affected
Currency (to the extent of the affected RFR Loans or, in the case of Term RFR Loans, the affected Interest Periods) or, failing
that, (I) in the case of any request for a borrowing of an affected RFR Loan in Dollars, the Borrower will be deemed to have
converted any such request into a request for a borrowing of or conversion to Base Rate Loans in the amount specified therein and
(II) in the case of any request for a borrowing of an affected RFR Loan in a Foreign Currency, then such request shall be
ineffective and (B)(I) any outstanding affected RFR Loans denominated in Dollars will be deemed to have been converted into Base
Rate Loans immediately or, in the case of Term RFR Loans, at the end of the applicable Interest Period and (II) any outstanding
affected RFR Loans denominated in a Foreign Currency, at the Borrower’s election, shall either (1) be converted into Base Rate
Loans denominated in Dollars (in an amount equal to the Dollar Equivalent of such Foreign Currency) immediately or, in the case of
Term RFR Loans, at the end of the applicable Interest Period or (2) be prepaid in full immediately or, in the case of Term RFR
Loans, at the end of the applicable Interest Period; provided that if no election is made by the Borrower by the date that is three
Business Days after receipt by the Borrower of such notice or, in the case of Term RFR Loans, the last day of the current Interest
Period for the applicable RFR Loan, if earlier, the Borrower shall be deemed to have elected clause (1) above. Upon any such
prepayment or conversion, the Borrower shall also pay accrued interest (except with respect to any prepayment or conversion of a
Daily Simple RFR Loan) on the amount so prepaid or converted, together with any additional amounts required pursuant to Section
5.4.
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(iii)
the Administrative Agent reasonably determines (which determination shall be conclusive absent manifest error) that the relevant rates
of interest referred to in the definition of LIBOR or Foreign Currency Rate for any relevant Currency, as applicable, upon the basis
of which the rate of interest for LIBOR Loans or such Foreign Currency Rate Loans, as applicable, for such Interest Period is to be determined
are not likely to adequately cover the cost to any Lender of making or maintaining LIBOR Loans or such Foreign Currency Rate Loans, as
applicable, for such Interest Period; or
(ii) Subject to clause (c) below, in connection with any Eurocurrency Rate Loan, a request therefor, a continuation thereof or otherwise, if for any reason (A) the Administrative Agent shall reasonably determine (which determination shall be conclusive and binding absent manifest error) that deposits are not being offered to banks in the London or other applicable offshore interbank market for the applicable Currency, amount and Interest Period of such Loan, (B) the Administrative Agent shall reasonably determine (which determination shall be conclusive and binding absent manifest error) that a fundamental change has occurred in the foreign exchange or interbank markets with respect to the applicable Foreign Currency (including changes in national or international financial, political or economic conditions or currency exchange rates or exchange controls), (C) the Administrative Agent shall determine (which determination shall be conclusive and binding absent manifest error) that reasonable and adequate means do not exist for the ascertaining the Adjusted Eurocurrency Rate for such Currency and Interest Period, including because the Screen Rate for the applicable Currency is not available or published on a current basis, or (D) the Requisite Lenders shall reasonably determine (which determination shall be conclusive and binding absent manifest error) that the Adjusted Eurocurrency Rate does not adequately and fairly reflect the cost to such Lenders of making or maintaining such Loans during such Interest Period and shall have provided notice of such determination to the Administrative Agent, then, in each case, the Administrative Agent shall promptly give notice thereof to the Borrower. Upon notice thereof by the Administrative Agent to the Borrower, any obligation of the Lenders to make Eurocurrency Rate Loans in each such Currency, and any right of the Borrower to continue any Loan as a Eurocurrency Rate Loan in each such Currency, shall be suspended (to the extent of the affected Eurocurrency Rate Loans or the affected Interest Periods) until the Administrative Agent (with respect to clause (D), at the instruction of the Requisite Lenders) revokes such notice. Upon receipt of such notice, (A) any pending request for a borrowing of or continuation of Eurocurrency Rate Loans in each such affected Currency (to the extent of the affected Eurocurrency Rate Loans or the affected Interest Periods) shall be ineffective and (B)(I) any outstanding affected Eurocurrency Rate Loans denominated in Dollars will be deemed to have been converted into Base Rate Loans at the end of the applicable Interest Period and (II) any outstanding affected Eurocurrency Rate Loans denominated in a Foreign Currency, at the Borrower’s election, shall either (1) be converted into Base Rate Loans denominated in Dollars (in an amount equal to the Dollar Equivalent of such Foreign Currency) at the end of the applicable Interest Period or (2) be prepaid in full at the end of the applicable Interest Period; provided that if no election is made by the Borrower by the date that is the earlier of (x) the date that is three Business Days after receipt by the Borrower of such notice and (y) the last day of the current Interest Period for the applicable Eurocurrency Rate Loan, the Borrower shall be deemed to have elected clause (1) above. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 5.4.
(iv)
iii)
if for any reason, any Tranche 1 Revolving Lender that has outstanding a Bid Rate Quote with respect to a LIBOR Margin Loan
reasonably determines (which determination shall be conclusive absent manifest error) that LIBOR will not adequately and fairly reflect
the cost to such Tranche 1 Revolving Lender of making or maintaining such LIBOR Margin Loan;,
no Tranche 1 Revolving Lender that has outstanding a Bid Rate Quote with respect to a LIBOR Margin Loan shall be under any obligation
to make such Loan.
then the Administrative
Agent shall give the Borrower and each Lender prompt written notice thereof and, so long as such condition remains in effect, (i) the
Lenders shall be under no obligation to, and shall not, make additional LIBOR Loans or Foreign Currency Rate Loans (as applicable), Continue
LIBOR Loans or Foreign Currency Rate Loans (as applicable) or Convert Loans into LIBOR Loans and the Borrower shall, on the last day
of each current Interest Period for each outstanding LIBOR Loan or applicable Foreign Currency Rate Loan, either (A) prepay such Loan
or (B)(1) in the case of a LIBOR Loan, Convert such Loan into a Base Rate Loan or (2) in the case of a Foreign Currency Rate Loan, exchange
such Foreign Currency Rate Loan to Dollars at the Spot Rate and Convert such Loan into a Base Rate Loan and (ii) in the case of clause
(iv) above, no Tranche 1 Revolving Lender that has outstanding a Bid Rate Quote with respect to a LIBOR Margin Loan shall be under any
obligation to make such Loan.
(b) TIIE Rate. (i) If the Banco de México fails to publish the Interbank Equilibrium Interest Rate for the applicable Interest Period on the first Business Day of such Interest Period, either temporarily or on a definitive basis, the TIIE Rate shall be calculated applying any rate published by the Banco de México in substitution of the applicable TIIE Rate; and (ii) if clause (i) above is not available, the TIIE Rate shall be calculated based on the annual yield for the Interbank Equilibrium Interest Rate for a period closest to the duration of the applicable Interest Period, either compounded or calculated based on a one, three or six month, as applicable, equivalent basis in substitution of the TIIE Rate.
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(c) Alternative
Rate of Interest. Notwithstanding anything to the contrary in Section 5.2.(a) above, if the
Administrative Agent has made the determination (such determination to be conclusive absent manifest error) that (i) the
circumstances described in Section 5.2.(a)(i) or (a)(ii) have arisen and that such circumstances are unlikely to be temporary, (ii)
any applicable interest rate specified herein is no longer a widely recognized benchmark rate for newly originated loans in
the United States syndicated loan market in the applicable currency or (iii) the applicable supervisor or administrator (if
any) of any applicable interest rate specified herein or any Governmental Authority having, or purporting to have, jurisdiction over
the Administrative Agent has made a public statement identifying a specific date after which any applicable interest rate specified
herein shall no longer be used for determining interest rates for loans in the United States syndicated loan market in the
applicable currency, then the Administrative Agent and the Borrower shall negotiate in good faith and endeavor to establish
a replacement rate of interest (the “Replacement Rate”) (which replacement rate of interest shall, as reasonably
determined by the Administrative Agent, be generally in accordance with similar situations in other transactions in which it is
serving as administrative agent or otherwise consistent with market practice generally), in which case, the Replacement Rate shall,
subject to the next two sentences, replace such applicable interest rate for all purposes under the Loan Documents unless and until
(A) an event described in Section 5.2.(a)(i), (a)(ii), (c)(i), (c)(ii) or (c)(iii) occurs with respect to the Replacement Rate or
(B) the Requisite Lenders (directly, or through the Administrative Agent) notify the Borrower that the Replacement Rate does not
adequately and fairly reflect the cost to the Lenders of funding the Loans bearing interest at the Replacement Rate. In connection
with the establishment and application of the Replacement Rate, this Agreement and the other Loan Documents shall be amended solely
with the consent of the Administrative Agent and the Borrower, as may be necessary or appropriate, in the opinion
of the Administrative Agent and the Borrower, to effect the provisions of this Section 5.2.(c). Notwithstanding
anything to the contrary in this Agreement or the other Loan Documents (including, without limitation, Section 13.6.), such
amendment shall become effective without any further action or consent of any party other than the Administrative Agent and
the Borrower so long as the Administrative Agent shall not have received, within five (5) Business Days of the
delivery of such amendment to the Lenders, written notices from such Lenders that in the aggregate constitute Requisite
Lenders, with each such notice stating that such Lender objects to such amendment. To the extent the Replacement Rate is approved in
connection with this clause (c), the Replacement Rate shall be applied in a manner consistent with market practice; provided that,
in each case, to the extent such market practice is not administratively feasible for the Administrative Agent, such Replacement
Rate shall be applied as otherwise reasonably determined by the Administrative Agent (it being understood that any such modification
by the Administrative Agent shall not require the consent of, or consultation with, any of the Lenders).
(c) Benchmark Replacement Setting.
(i) Benchmark Replacement.
(A) Notwithstanding anything to the contrary herein or in any other Loan Document, if the USD LIBOR Transition Date has occurred prior to the Reference Time in respect of any setting of the Adjusted Eurocurrency Rate for Dollars, then (x) if a Benchmark Replacement is determined in accordance with clause (b)(1) or (b)(2) of the definition of “Benchmark Replacement” for the USD LIBOR Transition Date, such Benchmark Replacement will replace the then-current Benchmark with respect to Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Dollars for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (b)(3) of the definition of “Benchmark Replacement” for the USD LIBOR Transition Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. on the fifth Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Requisite Lenders of each applicable Class.
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(B) Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event or an Other Benchmark Rate Election, as applicable, with respect to any Benchmark, the Administrative Agent and the Borrower may amend this Agreement to replace such Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event or an Other Benchmark Rate Election, as applicable, will become effective at 5:00 p.m. on the fifth Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders and the Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Requisite Lenders of each applicable Class. No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 5.2(c)(i)(B) will occur prior to the applicable Benchmark Transition Start Date.
(C) Notwithstanding anything to the contrary herein or in any other Loan Document and subject to the proviso below in this paragraph, if a Term RFR Transition Date has occurred prior to the Reference Time in respect of any setting of the then-current Benchmark consisting of a Daily Simple RFR (including a Daily Simple RFR implemented as a Benchmark Replacement pursuant to Section 5.2(c)(i)(A) or Section 5.2(c)(i)(B)) for the applicable Currency, then the applicable Benchmark Replacement will replace such Benchmark for all purposes hereunder or under any Loan Document in respect of such Benchmark for the applicable Currency setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document; provided that this clause (C) shall not be effective unless the Administrative Agent has delivered to the Lenders and the Borrower a Term RFR Notice with respect to the applicable Term RFR Transition Event. For the avoidance of doubt, the Administrative Agent shall not be required to deliver a Term RFR Notice after a Term RFR Transition Event and may elect or not elect to do so in its sole discretion.
(ii) Benchmark Replacement Conforming Changes. In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Conforming Changes from time to time in its reasonable discretion in consultation with the Borrower and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(iii) Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrower and the Lenders of (A) the implementation of any Benchmark Replacement and (B) the effectiveness of any Conforming Changes in connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will promptly notify the Borrower of the removal or reinstatement of any tenor of a Benchmark pursuant to Section 5.2(c)(iv). Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 5.2(c), including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 5.2(c).
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(iv) Unavailability of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (A) if any then-current Benchmark is a term rate (including any Term RFR, USD LIBOR, EURIBOR, TIBOR, BBSY, CDOR, TIIE Rate, HKIOR, SIOR, NIOR, CIOR or BBRBR) and either (1) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (2) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (B) if a tenor that was removed pursuant to clause (A) above either (1) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (2) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(v) Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a given Benchmark, (A) the Borrower may revoke any pending request for a borrowing of, conversion to or continuation of RFR Loans or Eurocurrency Rate Loans, in each case, to be made, converted or continued during any Benchmark Unavailability Period denominated in the applicable Currency and, failing that, (I) in the case of any request for any affected RFR Loans or a Eurocurrency Rate Loans, in each case, denominated in Dollars, if applicable, the Borrower will be deemed to have converted any such request into a request for a borrowing of or conversion to Base Rate Loans in the amount specified therein and (II) in the case of any request for any affected RFR Loan or Eurocurrency Rate Loan, in each case, in a Foreign Currency, if applicable, then such request shall be ineffective and (B)(I) any outstanding affected RFR Loans or Eurocurrency Rate Loans, in each case, denominated in Dollars, if applicable, will be deemed to have been converted into Base Rate Loans immediately or, in the case of Term RFR Loans or Eurocurrency Rate Loans, at the end of the applicable Interest Period and (II) any outstanding affected RFR Loans or Eurocurrency Rate Loans, in each case, denominated in a Foreign Currency, at the Borrower’s election, shall either (x) be converted into Base Rate Loans denominated in Dollars (in an amount equal to the Dollar Equivalent of such Foreign Currency) immediately or, in the case of Term RFR Loans or Eurocurrency Rate Loans, at the end of the applicable Interest Period or (y) be prepaid in full immediately or, in the case of Term RFR Loans or Eurocurrency Rate Loans, at the end of the applicable Interest Period; provided that, with respect to any Daily Simple RFR Loan, if no election is made by the Borrower by the date that is three Business Days after receipt by the Borrower of such notice, the Borrower shall be deemed to have elected clause (1) above; provided, further that, with respect to any Eurocurrency Rate Loan or Term RFR Loan, if no election is made by the Borrower by the earlier of (x) the date that is three Business Days after receipt by the Borrower of such notice and (y) the last day of the current Interest Period for the applicable Eurocurrency Rate Loan or Term RFR Loan, the Borrower shall be deemed to have elected clause (1) above. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest (except with respect to any prepayment or conversion of a Daily Simple RFR Loan) on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 5.4. During a Benchmark Unavailability Period with respect to any Benchmark or at any time that a tenor for any then-current Benchmark is not an Available Tenor, the component of the Base Rate based upon the then-current Benchmark that is the subject of such Benchmark Unavailability Period or such tenor for such Benchmark, as applicable, will not be used in any determination of Base Rate.
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(d) Foreign Currencies. If any change in currency controls or exchange regulations or any change in national or international financial, political or economic conditions are imposed in the country in which such currency is issued, and such change results in, in the reasonable opinion of the Administrative Agent (i) such currency no longer being readily available, freely transferable and convertible into Dollars, (ii) a Dollar Equivalent no longer being readily calculable with respect to such currency, (iii) such currency being impracticable for the Lenders to loan or (iv) such currency no longer being a currency in which the Requisite Lenders are willing to make, Continue or Convert Loans (each of clauses (i), (ii), (iii) and (iv), a “Disqualifying Event”), then the Administrative Agent shall promptly notify the Lenders and the Borrower, and such currency shall no longer be a Foreign Currency (including a Tranche 1 Currency or Tranche 2 Currency) until such time as the Disqualifying Event(s) no longer exist. Within five (5) Business Days after receipt of such notice from the Administrative Agent, the Borrower shall repay all Loans denominated in such currency to which the Disqualifying Event(s) apply or convert such Loans into the Dollar Equivalent in Dollars, bearing interest at the Base Rate, subject to the other terms contained herein.
Section 5.3. Illegality.
Notwithstanding
any other provision of this Agreement, (a) if any Lender shall determine (which determination shall be conclusive and binding) that it
is unlawful for such Lender to honor its obligation to make or maintain LIBOR Loans or Foreign Currency Rate Loans in a particular Currency
hereunder and/or (b) if any Lender that has an outstanding Bid Rate Quote shall determine (which determination shall be conclusive and
binding) that it is unlawful for such Lender to honor its obligation to make or maintain LIBOR Margin Loans hereunder, then such Lender
shall promptly notify the Borrower thereof in writing (with a copy of such notice to the Administrative Agent) and such Lender’s
obligation to make or Continue LIBOR Loans or the applicable Foreign Currency Rate Loans, or to Convert Loans of any other Type into,
LIBOR Loans shall be suspended and/or such Lender’s obligation to make LIBOR Margin Loans shall be suspended, in each case,
until such time as such Lender may again make and maintain LIBOR Loans, the applicable Foreign Currency Rate Loans or LIBOR Margin Loans,
as the case may be (in which case the provisions of Section 5.5. shall be applicable).
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If, after the date hereof, the introduction of, or any change in, any Applicable Law or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any of the Lenders (or any of their respective Lending Offices) with any request or directive (whether or not having the force of law) of any such Governmental Authority, central bank or comparable agency, shall make it unlawful or impossible for any of the Lenders (or any of their respective Lending Offices) to honor its obligations hereunder to make or maintain any Daily Simple RFR Loan, Term RFR Loan or Eurocurrency Rate Loan, or to determine or charge interest based upon any applicable RFR, Adjusted Daily Simple RFR, Term RFR, the Eurocurrency Rate or the Adjusted Eurocurrency Rate, such Lender shall promptly give notice thereof to the Administrative Agent and the Administrative Agent shall promptly give notice to the Borrower and the other Lenders. Thereafter, until the Administrative Agent notifies the Borrower that such circumstances no longer exist, (i) any obligation of the Lenders to make RFR Loans or Eurocurrency Rate Loans, as applicable, in the affected Currency or Currencies, and any right of the Borrower to convert any Loan denominated in Dollars to an RFR Loan or a Eurocurrency Rate Loan or continue any Loan as an RFR Loan or a Eurocurrency Rate Loan, as applicable, in the affected Currency or Currencies shall be suspended and (ii) if necessary to avoid such illegality, the Administrative Agent shall compute the Base Rate without reference to clause (c) of the definition of “Base Rate”, in each case until each such affected Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, the Borrower shall, if necessary to avoid such illegality, upon demand from any Lender (with a copy to the Administrative Agent), prepay or, if applicable, (A) convert all RFR Loans or Eurocurrency Rate Loans denominated in Dollars to Base Rate Loans or (B) convert all RFR Loans or Eurocurrency Rate Loans denominated in an affected Foreign Currency to Base Rate Loans denominated in Dollars (in an amount equal to the Dollar Equivalent of such Foreign Currency) (in each case, if necessary to avoid such illegality, the Administrative Agent shall compute the Base Rate without reference to clause (c) of the definition of “Base Rate”), (I) with respect to Daily Simple RFR Loans, on the next interest payment date therefor, if all affected Lenders may lawfully continue to maintain such Daily Simple RFR Loans to such day, or immediately, if any Lender may not lawfully continue to maintain such Daily Simple RFR Loans to such day or (II) with respect to Eurocurrency Rate Loans or Term RFR Loans, on the last day of the Interest Period therefor, if all affected Lenders may lawfully continue to maintain such Eurocurrency Rate Loans or Term RFR Loans, as applicable, to such day, or immediately, if any Lender may not lawfully continue to maintain such Eurocurrency Rate Loans or Term RFR Loans, as applicable, to such day. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest (except with respect to any prepayment or conversion of a Daily Simple RFR Loan) on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 5.4.
Section 5.4. Compensation.
The Borrower shall pay to the Administrative Agent for the account of each Lender, within 10 days following the written request of such Lender through the Administrative Agent, such amount or amounts as shall be sufficient to compensate such Lender for any loss, cost or expense that the Administrative Agent reasonably determines is attributable to:
(a)
any payment or prepayment (whether mandatory or optional) of a LIBOR Loan, a Foreign CurrencyEurocurrency
Rate Loan,
a Term RFR Loan or a Bid Rate Loan, or Conversion of a LIBOREurocurrency
Rate Loan or
Term RFR Loan, made by such Lender for any reason (including, without limitation, acceleration) on a date other than the last
day of the Interest Period for such Loan; or
(b)
any failure by the Borrower for any reason (including, without limitation, the failure of any of the applicable conditions precedent
specified in Section 6.2. to be satisfied) to borrow a LIBOREurocurrency
Rate Loan, a Foreign Currency RateRFR
Loan or a Bid Rate Loan from such Lender on the date for such borrowing, or to Convert a Base Rate Loan into a LIBOREurocurrency
Rate Loan or RFR Loan or Continue a LIBOREurocurrency
Rate Loan or Foreign Currency RateTerm
RFR Loan on the requested date of such Conversion or Continuation.
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Not in limitation of the foregoing, such
compensation shall include, without limitation, (i) in the case of a LIBOREurocurrency
Rate Loan, an amount equal to the then present value of (A) the amount of interest that would have accrued on such LIBOREurocurrency
Rate Loan for the remainder of the Interest Period at the rate applicable to such LIBOREurocurrency
Rate Loan, less (B) the amount of interest that would accrue on the same LIBOREurocurrency
Rate Loan for the same period if LIBORthe
Adjusted Eurocurrency Rate were set on the date on which such LIBOREurocurrency
Rate Loan was repaid, prepaid or Converted or the date on which the Borrower failed to borrow, Convert or Continue such LIBOREurocurrency
Rate Loan, as applicable, calculating present value by using as a discount rate LIBORthe
applicable Eurocurrency Rate quoted on such date, (ii) in the case of a Bid Rate Loan, the sum of such losses and
expenses as the Lender or Designated Lender who made such Bid Rate Loan may reasonably incur by reason of such prepayment, including
without limitation any losses or expenses incurred in obtaining, liquidating or employing deposits from third parties and (iii) in
the case of a Foreign Currency Ratean
RFR Loan, an amount equal to the then present value of (A) the amount of interest that would have accrued on such Foreign
Currency RateRFR Loan
for the remainder of the Interest Period at the rate applicable to such Foreign Currency
Rate Loan, less (B) the amount of interest that would accrue on the same Foreign
Currency RateRFR Loan
for the same period if the applicable Foreign Currency RateAdjusted
Daily RFR Rate or Term RFR, as applicable, were set on the date on which such Foreign
Currency RateRFR Loan
was repaid or prepaid or the date on which the Borrower failed to borrow or Continue such Foreign
Currency RateRFR Loan,
as applicable, calculating present value by using as a discount rate the applicable Foreign
Currency RateAdjusted
Daily RFR Rate or Term TFR, as applicable, quoted on such date; provided, that any such compensation shall, for
the avoidance of doubt, in no event include any lost profit. Upon the Borrower’s request, the Administrative Agent will
provide to the Borrower, on behalf of any Lender seeking compensation under this Section, a written statement setting forth in
reasonable detail the basis for requesting such compensation and the method for determining the amount thereof. Any such statement
shall be conclusive absent manifest error.
Section 5.5. Treatment of Affected Loans.
(a) If the obligation
of any Lender to make or Continue LIBOREurocurrency
Rate Loans or
RFR Loans denominated in Dollars or to Convert Base Rate Loans into LIBOR LoansEurocurrency
Rate Loans or RFR Loans denominated in Dollars shall be suspended pursuant to Section 5.1.(c), Section 5.2. or Section 5.3.
then such Lender’s LIBOR LoansEurocurrency
Rate Loans or RFR Loans denominated in Dollars shall be automatically Converted into Base Rate Loans on the last day(s) of
the then current Interest Period(s) for LIBORsuch
Eurocurrency Rate Loans or Term RFR Loans or the next interest payment date in the case of such Daily Simple RFR Loans (or,
in each case, in the case of a Conversion required by Section 5.1.(c), Section 5.2., or Section 5.3. on such earlier date
as such Lender or the Administrative Agent, as applicable, may specify to the Borrower in writing (with a copy to the Administrative
Agent, as applicable)) and, unless and until such Lender or the Administrative Agent, as applicable, gives written notice as provided
below that the circumstances specified in Section 5.1., Section 5.2. or Section 5.3. that gave rise to such Conversion no longer exist:
(i) to the extent that such Lender’s LIBOREurocurrency
Rate Loans or
RFR Loans denominated in Dollars have been so Converted, all payments and prepayments of principal that would otherwise be
applied to such Lender’s LIBOREurocurrency
Rate Loans shall be applied instead to its Base Rate Loans; and
(ii) all
Loans that would otherwise be made or Continued by such Lender as LIBOR LoansEurocurrency
Rate Loans or RFR Loans denominated in Dollars shall be made or Continued instead as Base Rate Loans, and all Base Rate Loans
of such Lender that would otherwise be Converted into LIBOR LoansEurocurrency
Rate Loans or RFR Loans denominated in Dollars shall remain as Base Rate Loans.
If such Lender or the Administrative
Agent, as applicable, gives written notice to the Borrower (with a copy to the Administrative Agent, as applicable) that the
circumstances specified in Section 5.1.(c), 5.2. or 5.3. that gave rise to the Conversion of such Lender’s LIBOREurocurrency
Rate Loans or RFR Loans pursuant to this Section no longer exist (which such Lender or the Administrative Agent, as
applicable, agrees to do promptly upon such circumstances ceasing to exist) at a time when LIBOR
LoansEurocurrency
Rate Loans or RFR Loans, as the case may be, denominated in Dollars and made by other Lenders are outstanding, then such
Lender’s Base Rate Loans shall be automatically Converted, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding LIBOREurocurrency
Rate Loans or RFR Loans, to the extent necessary so that, after giving effect thereto, all Loans held by the Lenders
holding LIBOREurocurrency
Rate Loans and
RFR Loans denominated in Dollars and by such Lender are held pro rata (as to principal amounts, Types and Interest
Periods) in accordance with their respective Pro Rata Shares of the applicable Class of Loans.
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(b) If the obligation of a Lender to make LIBOR Margin Loans shall be suspended pursuant to Section 5.1.(c) or 5.2., then the LIBOR Margin Loans of such Lender shall be automatically due and payable on such date as such Lender may specify to the Borrower by written notice with a copy to the Administrative Agent.
(c)
If the obligation of any Revolving Lender to make or Continue Foreign CurrencyEurocurrency
Rate Loans or
RFR Loans of a particular Foreign
Currency shall be suspended pursuant to Section 5.1.(c), 5.2. or 5.3. then such Revolving Lender’s Foreign
CurrencyEurocurrency
Rate Loans or
RFR Loans of such Foreign Currency so affected shall be automatically (unless otherwise determined by the Administrative Agent)
exchanged to Dollars at the Spot Rate and Converted into Base Rate Loans on the last day(s) of the then current Interest Period(s) for
such Foreign Currency Rate Loans
(or, in the case required by Section 5.1.(c), 5.2. or 5.3. on such earlier date as such Revolving Lender or the Administrative Agent,
as applicable, may specify to the Borrower in writing (with a copy to the Administrative Agent, as applicable)).
Section 5.6. Affected Lenders.
If (a) a Lender requests
compensation pursuant to Section 3.10. or 5.1., or is a Lender that sold a participation to a Participant that requests compensation
pursuant to Section 3.10. or 5.1., and the Requisite Lenders are not also doing the same, (b) (i) the obligation of any Lender to
make LIBOREurocurrency
Rate Loans or RFR Loans or to Continue, or to Convert Base Rate Loans into, LIBOREurocurrency
Rate Loans or RFR Loans shall be suspended pursuant to Section 5.1.(c), 5.2. or 5.3. but the obligation of the Requisite
Lenders shall not have been suspended under such Sections or (ii) the obligation of any Revolving Lender to make or to Continue
Foreign Currency Rate Loans in a particular Currency shall be suspended pursuant to Section 5.1.(c), 5.2. or 5.3. but the obligation
of the Requisite Lenders shall not have been suspended under such Sections or (c) a Lender becomes a Non-Consenting Lender, then, so
long as there does not then exist any Default or Event of Default, the Borrower may either (i) demand that such Lender (the
“Affected Lender”), and upon such demand the Affected Lender shall promptly, assign its Revolving Commitments and Loans
to an Eligible Assignee subject to and in accordance with the provisions of Section 13.5.(b) for a purchase price equal to (x) the
aggregate principal balance of all Loans then owing to the Affected Lender, plus (y) the aggregate amount of payments
previously made by the Affected Lender under Section 2.4.(j) that have not been repaid, plus (z) any accrued but unpaid
interest thereon and accrued but unpaid fees owing to the Affected Lender, or any other amount as may be mutually agreed upon by
such Affected Lender and Eligible Assignee or (ii) pay to the Affected Lender the aggregate principal balance of the Loans then
owing to the Affected Lender, plus the aggregate amount of payments previously made by the Affected Lender under Section 2.4.(j)
that have not been repaid, plus any accrued but unpaid interest and accrued but unpaid fees owing to the Affected Lender (or such
other amount as may be mutually agreed upon by the Borrower and such Affected Lender), and by written notice to such Affected
Lender, terminate such Affected Lender’s Revolving Commitment, whereupon the Affected Lender shall no longer be a party hereto
or have any rights or obligations hereunder or under any of the other Loan Documents (but shall continue to be entitled to the
benefits of Sections 3.10., 5.1., 5.4., 13.2. and 13.9. and the other provisions of this Agreement and the other Loan Documents as
provided in Section 13.10. with respect to facts and circumstances occurring prior to the effective date of such payment). Each of
the Administrative Agent, the Borrower and the Affected Lender shall reasonably cooperate in effectuating the replacement of such
Affected Lender under this Section, but at no time shall the Administrative Agent, such Affected Lender, any other Lender or any
Titled Agent be obligated in any way whatsoever to initiate any such replacement or to assist in finding an Eligible Assignee. The
exercise by the Borrower of its rights under this Section shall be at the Borrower’s sole cost and expense and at no cost or
expense to the Administrative Agent, the Affected Lender or any of the other Lenders; provided, however, that
notwithstanding anything to the contrary in this Agreement, the Borrower shall not be obligated to reimburse or otherwise pay an
Affected Lender’s administrative or legal costs incurred as a result of the Borrower’s exercise of its rights under this
Section. The terms of this Section shall not in any way limit the Borrower’s obligation to pay to any Affected Lender
compensation owing to such Affected Lender pursuant to this Agreement (including, without limitation, pursuant to Section 3.10.,
5.1. or 5.4.) with respect to any period up to the date of replacement. In connection with any such assignment under this Section
5.6., such Affected Lender shall promptly execute all documents reasonably requested to effect such assignment, including an
appropriate Assignment and Assumption; provided that such Affected Lenders’ failure to execute an Assignment and
Assumption within five Business Days after written request by the Borrower shall not prevent the effectiveness of such
assignment.
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Section 5.7. Change of Lending Office.
Each Lender agrees that it will use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to designate an alternate Lending Office with respect to any of its Loans affected by the matters or circumstances described in Section 3.10., 5.1. or 5.3. to reduce the liability of the Borrower or avoid the results provided thereunder, so long as such designation is not disadvantageous to such Lender as determined by such Lender in its sole discretion, except that such Lender shall have no obligation to designate a Lending Office located in the United States of America.
Section 5.8. Assumptions Concerning
Funding of LIBOR Loans, Foreign CurrencyEurocurrency
Rate Loans,
RFR Loans and LIBOR Margin Loans.
Calculation of all
amounts payable to a Lender under this Article shall be made as though such Lender had actually funded LIBOREurocurrency
Rate Loans, Foreign Currency RateRFR
Loans or LIBOR Margin Loans, as applicable, through the purchase of deposits in the relevant market bearing interest at the
rate applicable to such LIBOR Loans, Foreign CurrencyEurocurrency
Rate Loans,
RFR Loans or LIBOR Margin Loans, in an amount equal to the amount of the LIBOR Loans, Foreign
CurrencyEurocurrency
Rate Loans,
RFR Loans or LIBOR Margin Loans and having a maturity comparable to the relevant Interest Period,
as applicable; provided, however, that each Lender may fund each of its LIBOR
Loans, Foreign CurrencyEurocurrency
Rate Loans,
RFR Loans and LIBOR Margin Loans in any manner it sees fit and the foregoing assumption shall be used only for calculation
of amounts payable under this Article.
ARTICLE VI. CONDITIONS PRECEDENT
Section 6.1. Initial Conditions Precedent.
The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
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(ii) Revolving Notes, Swingline Notes, Term Notes and Bid Rate Notes (or, in each case, replacement Notes, as the case may be) executed by the Borrower, payable to each applicable Lender (including any Designated Lender, if applicable but excluding any Lender that has requested that it not receive Notes (other than Swingline Notes)) and complying with the terms of Section 2.12.(a);
(iii) an opinion of in-house and outside counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may request;
(iv) (A) copies of the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Person (or in the case of any Loan Party other than the Borrower, any other date acceptable to the Administrative Agent so long as such organizational documents are certified as of the Effective Date by the Secretary or Assistant Secretary (or other individual performing similar functions) of the applicable Loan Party) or (B) a certification by the Secretary or Assistant Secretary (or other individual performing similar functions) of the applicable Loan Party that such documents have not been amended or otherwise modified since the Existing Agreement Date;
(v) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person;
(vi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Lo