CREDIT AGREEMENT
ny-2788047 |
Exhibit 10.9
dated as of
November 26, 2024,
among
The SUBSIDIARY BORROWERS Party Hereto,
The LENDERS Party Hereto,
JPMORGAN CHASE BANK, N.A.
as Administrative Agent,
and
JPMORGAN CHASE BANK, N.A.,
as Sole Bookrunner and Sole Lead Arranger
_______________________________
$100,000,000
_______________________________
-i-
TABLE OF CONTENTS
Page
-ii-
TABLE OF CONTENTS
(continued)
Page
-iii-
TABLE OF CONTENTS
(continued)
Page
-iv-
TABLE OF CONTENTS
(continued)
Page
-v-
TABLE OF CONTENTS
(continued)
Page
-vi-
TABLE OF CONTENTS
(continued)
Page
SCHEDULE I-Commitments
SCHEDULE II-Included Investors
SCHEDULE III-Principal Office and Places of Organization
SCHEDULE IV-[Reserved]
SCHEDULE V-Disqualified Institutions
EXHIBIT A-Form of Note
EXHIBIT B-Form of Investor Acknowledgement
EXHIBIT C-Form of Assignment and Assumption
EXHIBIT D-Form of Borrowing Base Certificate
EXHIBIT E-[Reserved]
EXHIBIT F-Form of Opinion of Counsel to an Investor
EXHIBIT G-Form of Interest Election Request
EXHIBIT H-[Reserved]
EXHIBIT I-Form of Subsidiary Borrower Joinder Agreement
EXHIBIT J-Form of Management Fee Subordination Agreement
EXHIBIT K-[Reserved]
EXHIBIT L-1 -U.S. Tax Certificate (For Non-U.S. Lenders that are not
Partnerships for U.S. Federal Income Tax Purposes)
EXHIBIT L-2-U.S. Tax Certificate (For Non-U.S. Lenders that are Partnerships
for U.S. Federal Income Tax Purposes)
EXHIBIT L-3-U.S. Tax Certificate (For Non-U.S. Participants that are not
Partnerships for U.S. Federal Income Tax Purposes)
EXHIBIT L-4 -U.S. Tax Certificate (For Non-U.S. Participants that are
Partnerships for U.S. Federal Income Tax Purposes)
EXHIBIT M-Form of Borrowing Request
CREDIT AGREEMENT (this “Agreement”) dated as of November 26, 2024, between
PRINCIPAL CREDIT REAL ESTATE INCOME TRUST, a Maryland statutory trust (the
“Parent Borrower”), the SUBSIDIARY BORROWERS party hereto, the LENDERS party
hereto, and JPMORGAN CHASE BANK, N.A., as Administrative Agent.
The Borrowers (as hereinafter defined) have requested that the Lenders (as hereinafter
defined) extend credit to them in an aggregate principal or face amount not exceeding
$100,000,000 (subject to increase up to a maximum aggregate amount of $150,000,000 in
accordance with the provisions of Section 10.18) at any one time outstanding. The Lenders are
prepared to extend such credit upon the terms and conditions hereof, and, accordingly, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01Defined Terms. As used in this Agreement, the following terms have the
meanings specified below:
“25% Certificate” means a certificate issued by a Loan Party in consultation with
counsel, in form and substance reasonably satisfactory to the Administrative Agent, certifying
that the assets of such Loan Party do not constitute Plan Assets as of such date because Benefit
Plan Investors hold less than twenty-five percent (25%) of each class of the equity interests in
such Loan Party as of such date.
“ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, bear interest at a rate determined by reference to the
Alternate Base Rate.
“Accepting Lender” has the meaning given in Section 10.18(c).
“Additional Commitment Amount” has the meaning given in Section 10.18(a).
“Additional Commitment Notice” has the meaning given in Section 10.18(a).
“Adequately Capitalized” means compliance with the capital standards for bank holding
companies as described in the Bank Holding Company Act of 1956, as amended, and regulations
promulgated thereunder.
“Adjusted Daily Simple SOFR Rate” means an interest rate per annum equal to (a) the
Daily Simple SOFR, plus (b) 0.10%; provided that if the Adjusted Daily Simple SOFR Rate as
so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for
the purposes of this Agreement.
“Adjusted Term SOFR Rate” means, for any Interest Period, an interest rate per annum
equal to (a) the Term SOFR Rate for such Interest Period, plus (b) 0.10%; provided that if the
Adjusted Term SOFR Rate as so determined would be less than the Floor, such rate shall be
deemed to be equal to the Floor for the purposes of this Agreement.
“Administrative Agent” means JPMorgan, in its capacity as administrative agent for the
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, or any successor Administrative Agent appointed pursuant to Article VIII.
“Administrative Agent’s Account” means an account designated by the Administrative
Agent in a written notice to the Borrowers and the Lenders.
“Administrative Questionnaire” means an Administrative Questionnaire in a form
supplied by the Administrative Agent.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK
Financial Institution.
“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.
“Agent-Related Person” has the meaning given in Section 10.03(d).
“Agreement” has the meaning given in the preamble.
“Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a)
the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus ½ of 1%
and (c) the Adjusted Term SOFR Rate for a one month Interest Period as published two (2) U.S.
Government Securities Business Days prior to such day (or if such day is not a U.S. Government
Securities Business Day, the immediately preceding U.S. Government Securities Business Day)
plus 1%; provided that for the purpose of this definition, the Adjusted Term SOFR Rate for any
day shall be based on the Term SOFR Reference Rate at approximately 5:00 a.m. Chicago time
on such day (or any amended publication time for the Term SOFR Reference Rate, as specified
by the CME Term SOFR Administrator in the Term SOFR Reference Rate methodology). Any
change in the Alternate Base Rate due to a change in the Prime Rate, the NYFRB Rate or the
Adjusted Term SOFR Rate shall be effective from and including the effective date of such
change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate, respectively. If
the Alternate Base Rate is being used as an alternate rate of interest pursuant to Section 2.12 (for
the avoidance of doubt, only until the Benchmark Replacement has been determined pursuant to
Section 2.12(b)), then the Alternate Base Rate shall be the greater of clauses (a) and (b) above
and shall be determined without reference to clause (c) above. For the avoidance of doubt, if the
Alternate Base Rate as determined pursuant to the foregoing would be less than 0%, such rate
shall be deemed to be 0% for purposes of this Agreement.
“Alternative Investment Vehicle” means, with respect to Parent Borrower, any subsidiary
or alternative investment vehicle through which a Borrower carries on investment activities.
“Ancillary Document” has the meaning given in Section 10.06.
“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction
applicable to the Loan Parties or any of their respective Subsidiaries from time to time
concerning or relating to bribery or corruption.
“Applicable Parties” has the meaning given in Section 8.04(c).
“Applicable Percentage” means, with respect to any Lender, the percentage of the
Maximum Loan Amount represented by such ▇▇▇▇▇▇’s Commitment; provided that in the case of
Section 2.20 when a Defaulting Lender shall exist, “Applicable Percentage” shall mean the
percentage of the Maximum Loan Amount (disregarding any Defaulting ▇▇▇▇▇▇’s Commitment)
represented by such ▇▇▇▇▇▇’s Commitment. If the Commitments have terminated or expired, the
Applicable Percentages shall be determined based upon the Commitments most recently in
effect, giving effect to any assignments and to any Lender’s status as a Defaulting Lender at the
time of determination.
“Applicable Rate” means: (a) with respect to any ABR Loan 1.15% per annum; and (b)
with respect to any Term Benchmark Loan or RFR Loan, 2.15% per annum.
“Applicable Requirement” means (a) for any Investor that is a bank holding company, (i)
Adequately Capitalized status or better and (ii) a Minimum Senior Debt Rating; (b) for any
Investor that is an insurance company, (i) it has a claims-paying ability of not less than A+/A1
(as determined by S&P or ▇▇▇▇▇’▇) or higher and (ii) a Minimum Senior Debt Rating; (c) for
any Investor that is an ERISA Investor, (i) the Sponsor of such ERISA Investor has a Minimum
Senior Debt Rating and (ii) each plan funded by such ERISA Investor which is a defined benefit
pension plan has a minimum Funding Ratio equal to the Minimum Funding Ratio Percentage; (d)
for any Investor that is a Governmental Plan Investor, (i) the Responsible Party of such
Governmental Plan Investor has a Minimum Senior Debt Rating and (ii) the plan, if a defined
benefit plan, has a minimum Funding Ratio equal to the Minimum Funding Ratio Percentage; (e)
for any Investor that is an Endowment Fund Investor, (i) such Endowment Fund Investor has a
Minimum Senior Debt Rating or (ii) such Endowment Fund Investor’s Sponsor (A) has a
Minimum Senior Debt Rating and (B) such Sponsor is a party to the Subscription Agreement of
such Endowment Fund Investor (and jointly and severally liable for such Endowment Fund
Investor’s obligations under the Investor’s Subscription Agreement and the Operating
Agreement, as applicable), or guarantees the obligations of the Endowment Fund Investor to
make its Subscription Obligation pursuant to an unconditional guaranty in form and substance
satisfactory to the Administrative Agent; (f) for any Investor that is not a bank holding company,
an insurance company, an ERISA Investor, a Governmental Plan Investor or an Endowment
Fund Investor, such Investor has a Minimum Senior Debt Rating and (g) for an Investor that does
not satisfy the requirements of any of clauses (a) through (f) of this definition but which is a
subsidiary of an entity that satisfies the foregoing rating requirements and is reasonably
acceptable to the Administrative Agent (a “Rated Entity”), such Rated Entity guarantees the
obligations of such Investor to make its Subscription Obligations pursuant to an unconditional
guaranty (a “Rated Entity Guaranty”) in form and substance satisfactory to the Administrative
Agent (in which case the applicable Rated Entity shall be deemed to be a “Rated Entity
Guarantor”). In the event that there is a discrepancy between the S&P’s rating and the Moody’s
rating, compliance with the Applicable Requirement shall be based on the lower of the two
ratings.
“Approved Borrower Portal” has the meaning assigned to it in Section 8.11(a).
“Approved Electronic Platform” has the meaning given in Section 8.04(a).
“Approved Fund” means any Person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions of credit in the
ordinary course of its business and that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.
“Approved Uses” has the meaning given in Section 2.18.
“Arranger” means JPMorgan Chase Bank, N.A.
“Asset” means, with respect to any Borrower, the real property or other investment assets
owned directly or indirectly by such Borrower from time to time.
“Assignment and Assumption” means an assignment and assumption entered into by a
▇▇▇▇▇▇ and an assignee (with the consent of any party whose consent is required by Section
10.04), and accepted by the Administrative Agent, in the form of Exhibit C or any other form
(including electronic records generated by the use of an electronic platform) approved by the
Administrative Agent.
“Availability Period” means the period from and including the Effective Date to but
excluding the earlier of the Maturity Date and the date of termination of the Commitments.
“Available Commitment” means, with respect to the Borrowers, as of any date, the lesser
of (a) the Maximum Loan Amount and (b) the Borrowing Base.
“Available Tenor” means, as of any date of determination and with respect to the then-
current Benchmark, as applicable, any tenor for such Benchmark (or component thereof) or
payment period for interest calculated with reference to such Benchmark (or component thereof),
as applicable, that is or may be used for determining the length of an Interest Period for any term
rate or otherwise, for determining any frequency of making payments of interest calculated
pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any
tenor for such ▇▇▇▇▇▇▇▇▇ that is then-removed from the definition of “Interest Period” pursuant
to clause (e) of Section 2.12.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the
applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing
Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the
European Union, the implementing law, regulation rule or requirement for such EEA Member
Country from time to time which is described in the EU Bail-In Legislation Schedule, and (b)
with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as
amended from time to time) and any other law, regulation or rule applicable in the United
Kingdom relating to the resolution of unsound or failing banks, investment firms or other
financial institutions or their affiliates (other than through liquidation, administration or other
insolvency proceedings).
“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy”, as
now and hereafter in effect, or any successor statute.
“Bankruptcy Event” means, with respect to any Person, such Person becomes the subject
of a voluntary or involuntary bankruptcy or insolvency proceeding, or has had a receiver,
conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar
Person charged with the reorganization or liquidation of its business appointed for it, or, in the
good faith determination of the Administrative Agent, has taken any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment or
has had any order for relief in such proceeding entered in respect thereof, provided that a
Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of
any ownership interest, in such Person by a Governmental Authority or instrumentality thereof,
unless such ownership interest results in or provides such Person with immunity from the
jurisdiction of courts within the United States or from the enforcement of judgments or writs of
attachment on its assets or permits such Person (or such Governmental Authority or
instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by
such Person.
“Benchmark” means, initially, with respect to any (i) RFR Loan, the Daily Simple SOFR
or (ii) Term Benchmark Loan, the Term SOFR Rate; provided that if a Benchmark Transition
Event, and the related Benchmark Replacement Date have occurred with respect to the Daily
Simple SOFR or Term SOFR Rate, as applicable, or the then-current Benchmark, then
“Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark
Replacement has replaced such prior benchmark rate pursuant to clause (b) of Section 2.12.
“Benchmark Replacement” means, for any Available Tenor, the first alternative set forth
in the order below that can be determined by the Administrative Agent for the applicable
Benchmark Replacement Date:
(1)the Adjusted Daily Simple SOFR Rate; or
(2)the sum of: (a) the alternate benchmark rate that has been selected by the
Administrative Agent and the Parent Borrower as the replacement for the then-current
Benchmark for the applicable Corresponding Tenor 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
then-current Benchmark for dollar-denominated syndicated credit facilities at such time
in the United States and (b) the related Benchmark Replacement Adjustment.
If the Benchmark Replacement as determined pursuant to clause (1) or (2) above would
be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the
purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the
then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest
Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement, the
spread adjustment, or method for calculating or determining such spread adjustment, (which may
be a positive or negative value or zero) that has been selected by the Administrative Agent and
the Parent Borrower for the applicable Corresponding Tenor 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 with the applicable Unadjusted
Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark
Replacement Date and/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
dollar-denominated syndicated credit facilities at such time.
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark
Replacement and/or any Term Benchmark Loan, any technical, administrative or operational
changes (including changes to the definition of “Alternate Base Rate,” the definition of
“Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of
“Interest Period,” timing and frequency of determining rates and making payments of interest,
timing of borrowing requests or prepayment, conversion or continuation notices, length of
lookback periods, the applicability of breakage provisions, and other technical, administrative or
operational matters) that the Administrative Agent decides in its reasonable discretion, may be
appropriate to reflect the adoption and implementation of such Benchmark and to permit the
administration thereof by the Administrative Agent in a manner substantially consistent with
market practice (or, if the Administrative Agent decides in its reasonable discretion, that
adoption of any portion of such market practice is not administratively feasible or if the
Administrative Agent determines in its reasonable discretion, that no market practice for the
administration of such Benchmark exists, in such other manner of administration as the
Administrative Agent decides is reasonably necessary in connection with the administration of
this Agreement and the other Loan Documents).
“Benchmark Replacement Date” means, with respect to any Benchmark, the earliest to
occur of the following events with respect to such then-current Benchmark:
(1)in the case of clause (1) or (2) of the definition of “Benchmark Transition
Event,” the later of (a) the date of the public statement or publication of information
referenced therein and (b) the date on which the administrator of such Benchmark (or the
published component used in the calculation thereof) permanently or indefinitely ceases
to provide all Available Tenors of such Benchmark (or such component thereof); or
(2)in the case of clause (3) 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 or, if such Benchmark is a term rate, all Available Tenors of
such Benchmark (or component thereof) have been determined and announced by the
regulatory supervisor for the administrator of such Benchmark (or such component
thereof) to be no longer representative; provided, that such non-representativeness will be
determined by reference to the most recent statement or publication referenced in such
clause (3) and even if such Benchmark (or component thereof) or, if such Benchmark is a
term rate, any Available Tenor of such Benchmark (or such component thereof) continues
to be provided on such date.
For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement
Date 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 determination and (ii) the “Benchmark Replacement Date” will be
deemed to have occurred in the case of clause (1) or (2) 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 any Benchmark, the occurrence of
one or more of the following events with respect to such then-current Benchmark:
(1)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 such Benchmark (or such
component thereof) or, if such Benchmark is a term rate, any Available Tenor of such
Benchmark (or such component thereof);
(2)a public statement or publication of information by the regulatory
supervisor for the administrator of such Benchmark (or the published component used in
the calculation thereof), the Federal Reserve Board, the NYFRB, the CME Term SOFR
Administrator, 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), in each case, which states that the administrator of such Benchmark (or
such component) has ceased or will cease to provide such Benchmark (or such
Credit Agreement
8
ny-2788047 |
component thereof) or, if such Benchmark is a term rate, 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 such Benchmark (or such component thereof) or, if such Benchmark
is a term rate, any Available Tenor of such Benchmark (or such component thereof); or
(3)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 such Benchmark (or such component thereof) or,
if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such
component thereof) are no longer, or as of a specified future date will no longer be,
representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have
occurred with respect to any Benchmark if a public statement or publication of information set
forth above has occurred with respect to each then-current Available Tenor of such Benchmark
(or the published component used in the calculation thereof).
“Benchmark Unavailability Period” means, with respect to any Benchmark, the period (if
any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2)
of that definition has occurred if, at such time, no Benchmark Replacement has replaced such
then-current Benchmark for all purposes hereunder and under any Loan Document in accordance
with Section 2.12 and (y) ending at the time that a Benchmark Replacement has replaced such
then-current Benchmark for all purposes hereunder and under any Loan Document in accordance
with Section 2.12.
“Beneficial Ownership Certification” means a certification regarding beneficial
ownership or control as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan Investor” means any of (a) an “employee benefit plan” (as defined in
Section 3(3) of ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section
4975(e)(1) of the Code to which Section 4975 of the Code applies, and (c) any Person whose
assets include (for purposes of the Plan Asset Regulations) the assets of any such “employee
benefit plan” or “plan”.
“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.
“Borrower Communications” has the meaning given in Section 8.11(c).
“Borrowers” means, collectively, the Parent Borrower and the Subsidiary Borrowers and
each, individually, being a “Borrower”.
Credit Agreement
9
ny-2788047 |
“Borrowing” means Loans of the same Type, made, converted or continued on the same
date and, in the case of Term Benchmark Loans, as to which a single Interest Period is in effect.
“Borrowing Base” means, at any time of determination, the sum of ninety percent (90%)
of the aggregate Eligible Contribution (as from time to time in effect) of the Included Investors.
“Borrowing Base Certificate” means a certificate of a Responsible Officer of the Parent
Borrower, substantially in the form of Exhibit D hereto or Annex 2 to a Borrowing Request, as
applicable, and appropriately completed.
“Borrowing Request” means a request by the Parent Borrower, and, in the case of
Borrowings made to a Subsidiary Borrower, such Subsidiary Borrower, for a Borrowing in
accordance with Section 2.03, which shall be substantially in the form of Exhibit M or any other
form approved by the Administrative Agent.
“Business Day” means, any day (other than a Saturday or a Sunday) on which banks are
open for business in New York City; provided that, in addition to the foregoing, a Business Day
shall be any such day that is only a U.S. Government Securities Business Day (a) in relation to
RFR Loans and any interest rate settings, fundings, disbursements, settlements or payments of
any such RFR Loan, or any other dealings of such RFR Loan and (b) in relation to Loans
referencing the Adjusted Term SOFR Rate and any interest rate settings, fundings,
disbursements, settlements or payments of any such Loans referencing the Adjusted Term SOFR
Rate or any other dealings of such Loans referencing the Adjusted Term SOFR Rate.
“Capital Lease Obligations” of any Person means the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases or financing leases on a balance sheet of such Person under
GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in
accordance with GAAP.
“Cash Collateral Agreement” means the Cash Collateral Account, Security, Pledge and
Assignment Agreement and Control Agreement, dated as of the Effective Date, between the
Parent Borrower and the Administrative Agent, as such agreement may be amended,
supplemented, and otherwise modified.
“Change in Law” means the occurrence after the Effective Date of (a) the adoption of or
taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or
treaty or in the administration, interpretation, implementation or application thereof by any
Governmental Authority or (c) compliance by any Lender or the Issuing Bank (or, for purposes
of Section 2.13(b), by any lending office of such Lender or by such ▇▇▇▇▇▇’s or the Issuing
Bank’s holding company, if any) with any request, guideline or directive (whether or not having
the force of law) of any Governmental Authority made or issued after the Effective Date;
provided that, notwithstanding anything herein to the contrary, (x) the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street
Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder
or issued in connection therewith or in the implementation thereof and (y) all requests, rules,
Credit Agreement
10
ny-2788047 |
guidelines or directives promulgated by the Bank for International Settlements, the Basel
Committee on Banking Supervision (or any successor or similar authority) or the United States
or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed
to be a “Change in “Law”, regardless of the date enacted, adopted, issued or implemented.
“Charges” has the meaning given in Section 10.16.
“CME Term SOFR Administrator” means CME Group Benchmark Administration
Limited as administrator of the forward-looking term Secured Overnight Financing Rate (SOFR)
(or a successor administrator).
“Code” means the Internal Revenue Code of 1986, as amended from time to time.
“Collateral” means, collectively, the collateral covered by the definitions of “Collateral”
as set forth in each Pledge and Cash Collateral Agreement.
“Commitment” means, with respect to each Lender, the amount set forth on Schedule I
opposite such ▇▇▇▇▇▇’s name, or in the Assignment and Assumption or other documentation or
record (as such term is defined in Section 9-102(a)(70) of the New York Uniform Commercial
Code) as provided in Section 10.04(b)(ii)(C), pursuant to which such Lender shall have assumed
its Commitment, as applicable, and giving effect to (a) any reduction in such amount from time
to time pursuant to Section 2.07, (b) any increase in such amount pursuant to Section 10.18, and
(c) any reduction or increase in such amount from time to time pursuant to assignments by or to
such Lender pursuant to Section 10.04; provided that at no time shall (x) the Revolving Credit
Exposure of any Lender exceed its Commitment or (y) the Total Revolving Credit Exposure
exceed the aggregate amount of all Lenders’ Commitments. The initial aggregate amount of the
Lenders’ Commitments is $100,000,000.
“Communications” has the meaning given in Section 8.04(c).
“Concentration Limit” means, (i) with respect to any Included Investor as of the Effective
Date, the Concentration Limit (if any) set forth for such Investor on Schedule II hereto and (ii)
with respect to any Included Investor added after the Effective Date, the Concentration Limit (if
any) determined for such Investor being approved as an Included Investor.
“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.
“Constituent Documents” means, with respect to any entity, its constituent, governing or
organizational documents, including (a) in the case of a limited partnership, its certificate of
limited partnership and its partnership agreement, (b) in the case of an exempted limited
partnership, its certificate of registration of exempted limited partnership and its exempted
limited partnership agreement, (c) in the case of a limited liability company, its certificate of
formation or organization and its operating agreement or limited liability company agreement,
(d) in the case of a corporation, its articles or certificate of incorporation and its by-laws, (e) in
Credit Agreement
11
ny-2788047 |
the case of a trust, its certificate of trust, its declaration of trust, its trust agreement and its by-
laws, as applicable, and (f) in the case of a foreign Person, such organizational documents and
approvals as the Administrative Agent shall reasonably require, in each of the above cases as
amended from time to time in accordance with the terms hereof.
“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.
“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either
a tenor (including overnight) or an interest payment period having approximately the same length
(disregarding business day adjustment) as such Available Tenor.
“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 assigned to it in Section 10.22.
“Credit Party” means the Administrative Agent, each Issuing Bank or any other Lender.
“Daily Simple SOFR” means, for any day (a “SOFR Rate Day”), a rate per annum equal
to SOFR for the day (such day “SOFR Determination Date”) that is five (5) U.S. Government
Securities Business Days prior to (i) if such SOFR Rate Day is a U.S. Government Securities
Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not a U.S. Government
Securities Business Day, the U.S. Government Securities Business Day immediately preceding
such SOFR Rate Day, in each case, as such SOFR is published by the SOFR Administrator on
the SOFR Administrator’s Website. Any change in Daily Simple SOFR due to a change in
SOFR shall be effective from and including the effective date of such change in SOFR without
notice to the Borrower. If by 5:00 p.m. (New York City time) on the second (2nd) U.S.
Government Securities Business Day immediately following any SOFR Determination Date,
SOFR in respect of such SOFR Determination Date has not been published on the SOFR
Administrator’s Website and a Benchmark Replacement Date with respect to the Daily Simple
SOFR has not occurred, then SOFR for such SOFR Determination Date will be SOFR as
published in respect of the first preceding U.S. Government Securities Business Day for which
such SOFR was published on the SOFR Administrator’s Website.
“Declaration of Trust” has the meaning assigned to it in the definition of “Operating
Agreement”.
Credit Agreement
12
ny-2788047 |
“Default” means any event or condition which constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.
“Default Right” has the meaning assigned to that term in, and shall be interpreted in
accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“Defaulting Lender” means any Lender that (a) has failed, within two (2) Business Days
of the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any
portion of its participations in Letters of Credit or (iii) pay over to any Credit Party any other
amount required to be paid by it hereunder, unless, in the case of clause (a)(i) of this definition,
such ▇▇▇▇▇▇ notifies the Administrative Agent in writing that such failure is the result of such
▇▇▇▇▇▇’s good faith determination that a condition precedent to funding (specifically identified
and including the particular default, if any) has not been satisfied, (b) has notified the Borrowers
or any other Credit Party in writing, or has made a public statement to the effect, that it does not
intend or expect to comply with any of its funding obligations under this Agreement (unless such
writing or public statement indicates that such position is based on such ▇▇▇▇▇▇’s good faith
determination that a condition precedent (specifically identified and including the particular
default, if any) to funding a loan under this Agreement cannot be satisfied) or generally under
other agreements in which it commits to extend credit, (c) has failed, within three (3) Business
Days after request by a Credit Party, acting in good faith, to provide a certification in writing
from an authorized officer of such Lender that it will comply with its obligations (and is
financially able to meet such obligations as of the date of certification) to fund prospective Loans
and participations in then outstanding Letters of Credit under this Agreement, provided that such
Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon such Credit Party’s
receipt of such certification in form and substance satisfactory to it and the Administrative
Agent, or (d) has become the subject of (A) a Bankruptcy Event or (B) a Bail-In Action.
“Disqualified Institution” means, on any date, (a) any Person set forth on Schedule V and
(b) any other Person that is a competitor of Parent Borrower or any of its Subsidiaries, which
Person has been designated by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as a “Disqualified Institution” by written notice
to Administrative Agent and the Lenders not less than two (2) Business Days prior to such date
(such designation by Parent Borrower being acceptable to Administrative Agent in its reasonable
discretion); provided that “Disqualified Institutions” shall exclude any Person that Parent
▇▇▇▇▇▇▇▇ has designated as no longer being a “Disqualified Institution” by written notice
delivered to Administrative Agent and the Lenders from time to time; provided further that no
Person may be designated by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as a “Disqualified Institution” during an Event of
▇▇▇▇▇▇▇; provided, further, that any designation of a “Disqualified Institution” shall not
retroactively apply to any Lender that became a Lender prior to such designation; provided,
further, that an Affiliate of any Disqualified Institution shall only be deemed a Disqualified
Institution solely to the extent such Affiliate has the name of such Disqualified Institution in its
legal name.
“dollars” or “$” refers to lawful money of the United States of America.
Credit Agreement
13
ny-2788047 |
“EEA Financial Institution” means (a) any credit institution or investment firm
established in any EEA Member Country which is subject to the supervision of an EEA
Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of
an institution described in clause (a) of this definition, or (c) any financial institution established
in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b)
of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union,
Iceland, Liechtenstein, and Norway.
“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 date of this Agreement.
“Electronic Signature” means an electronic sound, symbol, or process attached to, or
associated with, a contract or other record and adopted by a Person with the intent to sign,
authenticate or accept such contract or record.
“Eligible Contribution” means, for each Included Investor, the amount of such Included
Investor’s Unfunded Capital Commitment; provided that, for any Included Investor to which a
Concentration Limit applies, the Eligible Contribution for such Included Investor shall mean the
highest amount that does not cause such Included Investor’s Unfunded Capital Commitment to
exceed the product of the applicable Concentration Limit for such Included Investor and the total
Unfunded Capital Commitments of the Included Investors.
“Endowment Fund Investor” means an Investor that is a wholly owned, tax exempt,
public charity subsidiary of a Sponsor, the assets of which Investor are not wholly expendable by
such Sponsor on a current basis under the specific terms of all applicable gift instruments,
formed for the sole purpose of accepting charitable donations on behalf of such Sponsor and
investing the proceeds thereof.
“Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or legally-binding agreements issued, promulgated or
entered into by or with any Governmental Authority, relating in any way to (a) the environment,
(b) the preservation or reclamation of natural resources, (c) the management, release or
threatened release of any Hazardous Material, or (d) health and safety matters.
“Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of any
Loan Party or any of their Subsidiaries or affiliates directly or indirectly resulting from or based
upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials in violation of any Environmental
Law, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any
Hazardous Materials into the environment in violation of any Environmental Law or (e) any
Credit Agreement
14
ny-2788047 |
contract, agreement or other consensual arrangement pursuant to which liability is assumed or
imposed with respect to any of the foregoing.
“Equity Interests” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity ownership
interests in a Person, and any warrants, options or other rights entitling the holder thereof to
purchase or acquire any such equity interest, but excluding any debt securities convertible into
any of the foregoing.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended
from time to time, or any successor statute, and the rules and regulations promulgated
thereunder.
“ERISA Investor” means an Investor the assets of which are Plan Assets subject to Title I
of ERISA.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published
by the Loan Market Association (or any successor person), as in effect from time to time.
“Event of Default” has the meaning given in Section 7.01.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a
Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes
imposed on or measured by net income (however denominated), franchise Taxes, and branch
profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the
laws of, or having its principal office or, in the case of any Lender, its applicable lending office
located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are
Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on
amounts payable to or for the account of such Lender with respect to an applicable interest in a
Loan, Letter of Credit or Commitment pursuant to a law in effect on the date on which (i) such
Lender acquires such interest in the Loan, Letter of Credit or Commitment (other than pursuant
to an assignment request by a Borrower under Section 2.17(b)) or (ii) such Lender changes its
lending office, except in each case to the extent that, pursuant to Section 2.15, amounts with
respect to such Taxes were payable either to such ▇▇▇▇▇▇’s assignor immediately before such
Lender acquired the applicable interest in a Loan, Letter of Credit or Commitment or to such
Lender immediately before it changed its lending office, (c) Taxes attributable to such
Recipient’s failure to comply with Section 2.15(f), and (d) any withholding Taxes imposed under
FATCA.
“Exclusion Amount” means the amount by which the Available Commitment is reduced
as a direct result of an Exclusion Event.
“Exclusion Event” has the meaning given in Section 2.19(a).
“FATCA” means Sections 1471 through 1474 of the Code, as of the Effective Date (or
any amended or successor version that is substantively comparable and not materially more
Credit Agreement
15
ny-2788047 |
onerous to comply with), any current or future regulations or official interpretations thereof, any
agreement entered into pursuant to Section 1471(b)(1) of the Code, any intergovernmental
agreement entered into among Governmental Authorities pursuant to the foregoing and any fiscal
or regulatory legislation, rules or practices adopted pursuant to any such intergovernmental
agreement, or any treaty, or convention among Governmental Authorities and implementing the
foregoing.
“Federal Funds Effective Rate” means, for any day, the rate calculated by the NYFRB
based on such day’s federal funds transactions by depositary institutions, as determined in such
manner as shall be set forth on the NYFRB’s Website from time to time, and published on the
next succeeding Business Day by the NYFRB as the effective federal funds rate; provided that if
the Federal Funds Effective Rate as so determined would be less than 0%, such rate shall be
deemed to be 0% for the purposes of this Agreement.
“Federal Reserve Board” means the Board of Governors of the Federal Reserve System
of the United States of America.
“Fee Letter” means that certain letter agreement, dated as of November 1, 2024, by and
between the Parent Borrower and JPMorgan, as such fee letter agreement may be modified and
supplemented and in effect from time to time.
“Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as
of the execution of this Agreement, the modification, amendment or renewal of this Agreement
or otherwise) with respect to the Adjusted Term SOFR Rate or the Adjusted Daily Simple SOFR
Rate, as applicable. For the avoidance of doubt the initial Floor for each of Adjusted Term SOFR
Rate or the Adjusted Daily Simple SOFR Rate shall be 0.00%.
“Foreign Lender” means a Lender that is not a U.S. Person.
“Funding Ratio” means (a) for a Governmental Plan Investor, the percentage obtained by
dividing (i) the total net fair market value of the assets of the plan by (ii) the actuarial present
value of the plan’s total benefit liabilities, each as reported in such plan’s audited financial
statements and (b) for an ERISA Investor that is subject to Title IV of ERISA (A) in the case of a
single-employer plan as defined in Section 4001(a)(15) of ERISA, the funding target attainment
percentage calculated in a manner consistent with the instructions to Schedule SB to Form 5500,
or (B) in the case of a multiemployer plan as defined in Section 4001(a)(3) of ERISA, the funded
percentage for monitoring the plan’s status calculated in a manner consistent with the
instructions to Schedule MB to Form 5500.
“GAAP” means generally accepted accounting principles in the United States of
America.
“Governmental Authority” means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
Credit Agreement
16
ny-2788047 |
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
“Governmental Plan Investor” means an Investor that is a “governmental plan” as defined
in Section 3(32) of ERISA and Section 414(d) of the Code.
“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or
otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner,
whether directly or indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase
of) any security for the payment thereof, (b) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Indebtedness or other obligation of the payment
thereof, (c) to maintain working capital, equity capital or any other financial statement condition
or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness
or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty
issued to support such Indebtedness or obligation; provided, that the term Guarantee shall not
include endorsements for collection or deposit in the ordinary course of business.
“Guaranteed Obligations” has the meaning set forth in Section 9.01(b).
“Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature regulated pursuant
to any Environmental Law.
“Included Investors” means those (a) Investors listed on Schedule II attached hereto, (b)
after the Effective Date, Investors which (i) meet the Applicable Requirement and which are
approved as “Included Investors”, from time to time, by the Administrative Agent in writing and
in its sole discretion, (ii) deliver duly executed original Investor Acknowledgments to
Administrative Agent, and (iii) deliver duly executed copies of legal opinions substantially in the
form of Exhibit F or other evidence reasonably satisfactory to the Administrative Agent
addressing (x) the authority of such Investors to execute and deliver their respective Investor
Acknowledgments and Subscription Agreements and (y) in connection with foreign Investors or
Investors with sovereign immunity, the matters addressed in paragraph 5 of Exhibit F, and (c)
Investors which (i) do not meet the Applicable Requirement and which are approved as
“Included Investors” from time to time after the Effective Date by the Administrative Agent and
one hundred percent (100%) of the Lenders in writing and in the sole and absolute discretion of
the Administrative Agent and each such ▇▇▇▇▇▇, (ii) deliver duly executed original Investor
Acknowledgments to Administrative Agent, and (iii) deliver duly executed copies of legal
opinions substantially in the form of Exhibit F or other evidence reasonably satisfactory to the
Administrative Agent addressing (x) the authority of such Investors to execute and deliver their
respective Investor Acknowledgments and Subscription Agreements and (y) in connection with
Credit Agreement
17
ny-2788047 |
foreign Investors or Investors with sovereign immunity, the matters addressed in paragraph 5 of
Exhibit F; provided, however, that once an Investor has been approved as an Included Investor
(including the delivery of documents required to be delivered by an Included Investor pursuant to
Section 4.02(f), such Investor shall remain an Included Investor, without the need for further
approvals of Administrative Agent or the Lenders, until such time, if ever, as such Included
Investor becomes a Non-Included Investor pursuant to Section 2.19; and provided, further, that,
subject to the provisions of the last paragraph of Section 2.19(a), from and after the first date that
an Investor becomes a Non-Included Investor pursuant to Section 2.19, such Investor shall cease
to be an Included Investor hereunder until such time as all Exclusion Events with respect to such
Investor shall have been cured, such Investor meets the Applicable Requirement and shall have
been approved as an Included Investor in the sole and absolute discretion of the Administrative
Agent. For the avoidance of doubt, Shareholders which are not Investors shall not be eligible to
be designated as Included Investors.
“Indebtedness” of any Person means, without duplication, (a) all obligations of such
Person for borrowed money or with respect to deposits or advances of any kind, (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person upon which interest charges are customarily paid, (d) all obligations
of such Person under conditional sale or other title retention agreements relating to property
acquired by such Person, (e) all obligations of such Person in respect of the deferred purchase
price of property or services (excluding current accounts payable incurred in the ordinary course
of business), (f) all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness secured thereby has
been assumed, (g) all Guarantees by such Person of Indebtedness of others or performance of
obligations, (h) all Capital Lease Obligations of such Person, (i) all obligations, contingent or
otherwise, of such Person as an account party in respect of letters of credit and letters of
guaranty, (j) all obligations under or in respect of Swap Agreements, (k) all obligations,
contingent or otherwise, of such Person in respect of bankers’ acceptances, (l) all obligations
under master leases and purchase obligations, and (m) trade payables. The Indebtedness of any
Person shall include the Indebtedness of any other entity (including any partnership in which
such Person is a general partner) to the extent such Person is liable therefor as a result of such
Person’s ownership interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with
respect to any payment made by or on account of any obligation of any Loan Party under any
Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Indemnitee” has the meaning given in Section 10.03(c).
“Ineligible Institution” means (a) a natural person, (b) a Defaulting Lender or its Lender
Parent, (c) a holding company, investment vehicle or trust for, or owned and operated for the
primary benefit of, a natural person or relative(s) thereof or (d) the Borrower or any of its
Affiliates; provided that, with respect to clause (c) of this definition, such holding company,
Credit Agreement
18
ny-2788047 |
investment vehicle or trust shall not constitute an Ineligible Institution if it (x) has not been
established for the primary purpose of acquiring any Loans or Commitments, (y) is managed by
a professional advisor, who is not such natural person or a relative thereof, having significant
experience in the business of making or purchasing commercial loans, and (z) has assets greater
than Twenty-Five Million Dollars ($25,000,000) and a significant part of its activities consist of
making or purchasing commercial loans and similar extensions of credit in the ordinary course of
its business.
“Information” has the meaning given in Section 10.13.
“Initial Notice Period” has the meaning given in Section 7.04.
“Initial Payment Date” has the meaning given in Section 7.04.
“Interest Election Request” means a request by a Borrower to convert or continue a
Borrowing in accordance with Section 2.06, which shall be substantially in the form of Exhibit G
or any other form approved by the Administrative Agent.
“Interest Payment Date” means the fifth (5th) day of each month and the Maturity Date.
“Interest Period” means with respect to any Term Benchmark Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in
the calendar month that is one month thereafter (in each case, subject to the availability for the
Benchmark applicable to the relevant Loan or Commitment); provided, that (i) if any Interest
Period would end on a day other than a Business Day, such Interest Period shall be extended to
the next succeeding Business Day unless such next succeeding Business Day would fall in the
next calendar month, in which case such Interest Period shall end on the next preceding Business
Day, (ii) any Interest Period that commences on the last Business Day of a calendar month (or on
a day for which there is no numerically corresponding day in the last calendar month of such
Interest Period) shall end on the last Business Day of the last calendar month of such Interest
Period and (iii) no tenor that has been removed from this definition pursuant to Section 2.12(e)
shall be available for specification in such Borrowing Request or Interest Election Request. For
purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is
made and thereafter shall be the effective date of the most recent conversion or continuation of
such Borrowing.
“Investor” means (a) as of the Effective Date, each Shareholder of the Parent Borrower
listed on the Borrowing Base Certificate delivered on or prior to the Effective Date and (b) after
the Effective Date, in addition to each Shareholder described in clause (a) above, any other
Shareholder of the Parent Borrower that is deemed by the Parent Borrower to be an “Anchor
Investor” (as described in Amendment No. 1 to Form 10 of the Parent Borrower filed on
September 6, 2024).
“Investor Acknowledgment” means the acknowledgment and consents in the form of
Exhibit B hereto executed by each Included Investor and delivered to the Administrative Agent,
subject to such revision as may be consented to by the Administrative Agent.
Credit Agreement
19
ny-2788047 |
“Investor Claims” means all debts and liabilities of each Investor, in its capacity as an
Investor in the Parent Borrower, to the Parent Borrower, in each case, whether such debts and
liabilities now exist or are hereafter incurred or arise, or whether the obligations of such Investor
thereon be direct, contingent, primary, secondary, several, joint and several, or otherwise, and
irrespective of whether such debts or liabilities be evidenced by note, contract, bargain account,
or otherwise, and irrespective of the Person or Persons in whose favor such debts or liabilities
may, at their inception, have been, or may hereafter be created, or the manner in which they have
or may hereafter be acquired by the Parent Borrower. “Investor Claims” shall include all rights
and claims of the Parent Borrower against an Investor under the applicable Subscription
Agreement or the Constituent Documents.
“IRS” means the U.S. Internal Revenue Service.
“Issuing Bank” means JPMorgan, in its capacity as the issuer of Letters of Credit
▇▇▇▇▇▇▇▇▇, and its successors in such capacity as provided in Section 2.04(j). The Issuing Bank
may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of the
Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect
to Letters of Credit issued by such Affiliate.
“JPMorgan” means JPMorgan Chase Bank, N.A.
“LC Collateral Account” has the meaning given in Section 2.04(k).
“LC Disbursement” means a payment made by the Issuing Bank pursuant to a Letter of
Credit.
“LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements
that have not yet been reimbursed by or on behalf of a Borrower at such time. The LC Exposure
of any Lender at any time shall be its Applicable Percentage of the total LC Exposure at such
time. For all purposes of this Agreement, if on any date of determination a Letter of Credit has
expired by its terms but any amount may still be drawn thereunder by reason of the operation of
Article 29(a) of the Uniform Customs and Practice for Documentary Credits, International
Chamber of Commerce Publication No. 600 (or such later version thereof as may be in effect at
the applicable time) or Rule 3.13 or Rule 3.14 of the International Standby Practices,
International Chamber of Commerce Publication No. 590 (or such later version thereof as may
be in effect at the applicable time) or similar terms in the governing rules or laws or of the Letter
of Credit itself, or if compliant documents have been presented but not yet honored, such Letter
of Credit shall be deemed to be “outstanding” and “undrawn” in the amount so remaining
available to be paid, and the obligations of the Borrowers and each Lender shall remain in full
force and effect until the Issuing Bank and the Lenders shall have no further obligations to make
any payments or disbursements under any circumstances with respect to any Letter of Credit.
“Lender Parent” means, with respect to any Lender, any Person as to which such Lender
is, directly or indirectly, a subsidiary.
Credit Agreement
20
ny-2788047 |
“Lender-Related Person” has the meaning given in Section 10.03(b).
“Lenders” means the Persons listed on Schedule I and any other Person that shall have
become a party hereto pursuant to an Assignment and Assumption or otherwise, other than any
such Person that ceases to be a party hereto pursuant to an Assignment and Assumption or
otherwise. Unless the context otherwise requires, the term “Lenders” includes the Issuing Bank.
“Letter of Credit” means any letter of credit issued pursuant to this Agreement.
“Letter of Credit Agreement” has the meaning given in Section 2.04(b).
“Letter of Credit Commitment” means, with respect to the Issuing Bank, the commitment
of the Issuing Bank to issue Letters of Credit hereunder in an aggregate amount equal to ten
percent (10%) of the Available Commitment. If the Issuing Bank has entered into an Assignment
and Assumption or has otherwise assumed a Letter of Credit Commitment after the Effective
Date, the amount set forth for such Issuing Bank as its Letter of Credit Commitment in the
Register maintained by the Administrative Agent. The Letter of Credit Commitment of the
Issuing Bank may be modified from time to time by agreement between such Issuing Bank and
the Borrower, and notified to the Administrative Agent.
“Letter of Credit Documents” means, with respect to any Letter of Credit, collectively,
each individually being a “Letter of Credit Document”, any application therefor, any Letter of
Credit Agreement, and any other agreements, instruments, guarantees or other documents
(whether general in application or applicable only to such Letter of Credit) 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, each as the same may
be modified and supplemented and in effect from time to time.
“Liabilities” means any losses, claims (including intraparty claims), demands, damages or
liabilities of any kind.
“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge,
hypothecation, encumbrance, charge or security interest in, on or of such asset, or any other type
of preferential arrangement that has the practical effect of creating a security interest in, on or of
such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital
lease or title retention agreement (or any financing lease having substantially the same economic
effect as any of the foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such securities.
“Loan Documents” means, collectively, each individually being a “Loan Document”, this
Agreement (including but not limited to the Schedules and Exhibits hereto), each Note, each
Letter of Credit Document, each Security Document, the Management Fee Subordination
Agreement, each Subsidiary Borrower Joinder Document, each Fee Letter, and any other
instruments or agreements entered into in connection with the commercial lending facility made
available hereunder by any of the Borrowers or any other Loan Party with or in favor of the
Administrative Agent and/or the Lenders, including any amendments, modifications or
Credit Agreement
21
ny-2788047 |
supplements thereto or waivers thereof. For purposes of clarity, Investor Acknowledgements
shall not be deemed Loan Documents.
“Loan Parties” means each of the Borrowers.
“Loans” means the loans made by the Lenders to the Borrowers pursuant to this
Agreement.
“Majority-Owned Subsidiary” means, with respect to the Parent Borrower, any
corporation, partnership, limited liability company or other entity of which more than fifty
percent (50%) of the equity securities or other ownership interests and more than fifty percent
(50%) of the ordinary voting power are, as of such date, directly or indirectly, owned and
controlled by the Parent Borrower.
“Management Agreement” means the Amended and Restated Advisory Agreement, dated
as of November 11, 2024, between the Parent Borrower and the Management Company, as
modified and supplemented and in effect from time to time.
“Management Company” means Principal Real Estate Investors, LLC, a Delaware
limited liability company or any successor or assignee permitted hereunder.
“Management Fee” has the meaning given in the Management Agreement.
“Management Fee Subordination Agreement” means the Subordination Agreement
substantially in the form of Exhibit J, dated as of even date herewith, among the Parent
Borrower, the Management Company and the Administrative Agent, as such agreement shall be
modified and supplemented and in effect from time to time.
“Margin Stock” means “margin stock” within the meaning of Regulations U of the
Federal Reserve Board, as in effect from time to time and all official rulings and interpretations
thereunder and thereof.
“Material Adverse Effect” means a material adverse effect on (a) the assets, operations,
properties, liabilities (actual or contingent), financial condition or business, of a Borrower and its
Subsidiaries taken as a whole, or (b) the ability of any Loan Party to perform any of its
Obligations under this Agreement or any of the other Loan Documents to which it is a party or
(c) the validity or enforceability of any of the Loan Documents or the rights of or benefits
available to any Secured Party under any Loan Document.
“Material Amendment” means an amendment, modification, termination, waiver or
change that (i) could reasonably be expected to materially and adversely affect any Lender or the
Administrative Agent, (ii) would affect the ability of any Loan Party to enter into indebtedness
(including leverage limitations), (iii) would affect any Loan Party’s investment restrictions, or
(iv) would affect any Investor’s obligation to make payments of Subscription Obligations or
otherwise adversely affect the Collateral for the Loans. Notwithstanding the foregoing, for the
avoidance of doubt, the following amendments to the Constituent Documents shall not constitute
Credit Agreement
22
ny-2788047 |
Material Amendments: (x) to admit new Shareholders or (y) to reflect transfers of Shareholder
interests.
“Maturity Date” means the date which is the earlier of (a) November 25, 2025 (or such
earlier date as the Commitments shall have been terminated in accordance with the terms hereof),
and (b) the date which is forty-five (45) days prior to the last date the Investors are obligated to
fund a Subscription Payment for purposes of repayment of the Obligations hereunder.
“Maximum Loan Amount” means, from time to time the aggregate of all Commitments,
as such Commitments may be reduced at the Parent Borrower’s option pursuant to Section 2.07
or be increased pursuant to Section 10.18.
“Maximum Rate” has the meaning given in Section 10.16.
“Minimum Funding Ratio Percentage” means with respect to a pension plan, the
applicable minimum Funding Ratio hereinafter set forth based upon the rating of its Sponsor or
Responsible Party, as the case may be:
Sponsor or Responsible Party Rating | Minimum Funding Ratio |
A-/A3 or higher | No minimum |
BBB+/Baa1 or higher | 90% |
The first rating indicated in each case above is the S&P’s rating and the second rating in each
case above is the Moody’s rating. In the event that there is a discrepancy between the S&P’s
rating and the ▇▇▇▇▇’▇ rating, the Minimum Funding Ratio Percentage shall be based upon the
lower of the two ratings.
“Minimum Senior Debt Rating” means a Rating of BBB+ or better by S&P (if rated by
S&P) and Baa1 or better by ▇▇▇▇▇’▇ (if rated by ▇▇▇▇▇’▇).
“▇▇▇▇▇’▇” means ▇▇▇▇▇’▇ Investors Service, Inc.
“Non-Included Investor” means any Investor that is not an Included Investor.
“Non-Recourse” means, with reference to any obligation or liability, any obligations or
liability for which a Person, as obligor thereunder, is not liable or obligated other than as to such
Person’s interest in a specifically identified asset only, subject to such limited exceptions to the
non-recourse nature of such obligation or liability, such as, but not limited to, fraud,
misappropriation, misapplication and environmental indemnities, as are usual and customary in
like transactions involving institutional lenders at the time of the incurrence of such obligation or
liability.
Credit Agreement
23
ny-2788047 |
“Non-Recourse Party” has the meaning given in Section 10.11.
“Notes” means the promissory notes provided for in Section 2.08(f) and all promissory
notes delivered in substitution or exchange therefor, in each case as the same shall be modified
and supplemented and in effect from time to time.
“NYFRB” means the Federal Reserve Bank of New York.
“NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in
effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day
that is not a Business Day, for the immediately preceding Business Day); provided that if none of
such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the
rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the
Administrative Agent from a federal funds broker of recognized standing selected by it;
provided, further, that if any of the aforesaid rates as so determined be less than 0%, such rate
shall be deemed to be 0% for purposes of this Agreement.
“NYFRB’s Website” means the website of the NYFRB at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇, or
any successor source.
“Obligations” means all advances to, and debts, liabilities, obligations, covenants and
duties of, the Loan Parties arising under any Loan Document or otherwise with respect to any
Loan, whether direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against the Borrowers or any Affiliate thereof of
any proceeding under any debtor relief laws naming such Person as the debtor in such
proceeding, regardless of whether such interest and fees are allowed or allowable claims in such
proceeding. Without limiting the foregoing, the Obligations include (a) the obligation to pay
principal, interest, charges, expenses, fees, indemnities and other amounts payable by the
Borrowers under any Loan Document and (b) the obligation of the Borrowers to reimburse any
amount in respect of any of the foregoing that the Administrative Agent or any Lender, in each
case in its sole discretion, may elect to pay or advance on behalf of the Borrowers.
“Operating Agreement” means, individually and/or collectively, as the context may
require, (i) the bylaws of the Parent Borrower, as adopted on July 19, 2024, and (ii) the Second
Amended and Restated Declaration of Trust of the Parent Borrower, dated as of November 11,
2024 (the “Declaration of Trust”), as each of the foregoing shall, subject to Section 6.03, be
modified and supplemented and in effect from time to time.
“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, Letter of Credit or Loan Document).
Credit Agreement
24
ny-2788047 |
“Other Taxes” means all present or future stamp, court or documentary, intangible,
recording, filing or similar Taxes that arise from any payment made under, from the execution,
delivery, performance, enforcement or registration of, from the receipt or perfection of a security
interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are
Other Connection Taxes imposed with respect to an assignment (other than an assignment made
pursuant to Section 2.17(b)).
“Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight
federal funds and overnight term benchmark transactions denominated in Dollars by U.S.-
managed banking offices of depository institutions, as such composite rate shall be determined
by the NYFRB as set forth on the NYFRB’s Website from time to time, and published on the
next succeeding Business Day by the NYFRB as an overnight bank funding rate.
“Parallel Fund” means a parallel and or feeder limited liability company, partnership, real
estate tax investment trust, group trust or other investment vehicle created pursuant to the
Operating Agreement to invest in a program similar to that of the Borrowers.
“Parent Borrower” has the meaning given in the Preamble.
“Participant” has the meaning given in Section 10.04(c).
“Participant Register” has the meaning given in Section 10.04(c).
“Patriot Act” has the meaning given in Section 10.17.
“Payment” has the meaning assigned to it in Section 8.07(c)(i).
“Payment Notice” has the meaning assigned to it in Section 8.07(c)(ii).
“Performance Fee” has the meaning given in the Management Agreement.
“Permitted Liens” has the meaning assigned to it in Section 6.02.
“Person” means any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, exempted limited partnership, Governmental
Authority or other entity.
“Plan Asset Regulation” means Department of Labor Regulation Section 2510.3-101, as
set forth in 29 C.F.R. § 2510.3-101, and modified by Section 3(42) of ERISA.
“Plan Assets” means “plan assets” as defined in the Plan Asset Regulation.
“Plan of Reorganization” has the meaning given in Section 10.04(f)(iii).
“Pledge” means the Subscription and Partnership Pledge and Security Agreement, dated
as of the Effective Date, between the Parent Borrower, and the Administrative Agent, as such
agreement shall be modified and supplemented and in effect from time to time.
Credit Agreement
25
ny-2788047 |
“Prepayment Trigger Date” has the meaning given in Section 2.09(b)(i).
“Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the
“Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per
annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical
Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no
longer quoted therein, any similar rate quoted therein (as determined by the Administrative
Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative
Agent). Each change in the Prime Rate shall be effective from and including the date such
change is publicly announced or quoted as being effective.
“Proceeding” means any claim, litigation, investigation, action, suit, arbitration, or
administrative, judicial or regulatory action or proceeding in any jurisdiction.
“Proposed Modification” has the meaning given in Section 6.03(b).
“Proposed Modification Notice” has the meaning given in Section 6.03(b).
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of
Labor, as any such exemption may be amended from time to time.
“Public-Sider” means a Lender whose representatives may trade in securities of the
Borrower or its Controlling person or any of its Subsidiaries while in possession of the financial
statements provided by a Borrower under the terms of this Agreement.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall
be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
“QFC Credit Support” has the meaning assigned to it in Section 10.22.
“Quarterly Dates” means the last Business Day of March, June, September and December
in each year, the first of which shall be the first such day after the date hereof.
“Rated Entity” has the meaning given in the definition of “Applicable Requirement”.
“Rated Entity Guarantor” has the meaning given in the definition of “Applicable
Requirement”.
“Rated Entity Guaranty” has the meaning given in the definition of “Applicable
Requirement”.
“Rating” means, for any Person, its long-term senior unsecured debt rating (or equivalent
thereof, such as, but not limited to, a corporate credit rating, issuer rating/insurance financial
strength rating (for an insurance company), general obligation rating or credit enhancement
program rating for a governmental entity), or revenue bond rating (for an educational
institution)) from either of S&P or ▇▇▇▇▇’▇.
Credit Agreement
26
ny-2788047 |
“Recipient” means (a) the Administrative Agent, (b) any Lender and (c) the Issuing Bank,
as applicable.
“Recourse” means, with reference to any obligation or liability, any direct or indirect
liability or obligation that is not Non-Recourse to the obligor thereunder. For purposes hereof, a
Person shall not be deemed to be “indirectly” liable for the liabilities or obligations of an obligor
solely by reason of the fact that such Person has an ownership interest in such obligor, provided
that such Person is not otherwise legally liable, directly or indirectly, for such obligor’s liabilities
or obligations (e.g., by reason of a guaranty or contribution obligations, by operation of law or by
reason of such Person being a general partner of such obligor).
“Reference Time” with respect to any setting of the then-current Benchmark means (1) if
such Benchmark is the Term SOFR Rate, 5:00 a.m. (Chicago time) on the day that is two (2)
U.S. Government Securities Business Days preceding the date of such setting, (2) if following a
Benchmark Transition Event and a Benchmark Replacement Date with respect to the Term
SOFR Rate, such Benchmark is Daily Simple SOFR, then four (4) U.S. Government Securities
Business Days prior to such setting or (3) if such Benchmark is none of the Term SOFR Rate or
Daily Simple SOFR, the time determined by the Administrative Agent in its reasonable
discretion.
“Register” has the meaning given in Section 10.04(b)(iv).
“Regulation D” means Regulation D of the Federal Reserve Board, as in effect from time
to time, and all official rulings and interpretations thereunder or thereof.
“Regulation W” means Regulation W of the Federal Reserve Board, as in effect from
time to time, and all official rulings and interpretations thereunder or thereof.
“Regulations T, U, and X” means, collectively, Regulations T, U, and X of the Federal
Reserve Board, as each is in effect from time to time, and all official rulings and interpretations
thereunder or thereof.
“Regulatory Authority” has the meaning given in Section 10.13.
“REIT” means a real estate investment trust pursuant to Sections 856 through 860 of the
Code and the U.S. Treasury Regulations promulgated thereunder.
“Related Parties” means, with respect to any specified Person, such Person’s Affiliates
and the respective directors, officers, employees, agents and advisors of such Person and such
Person’s Affiliates.
“Relevant Governmental Body” means, the Federal Reserve Board and/or the NYFRB, or
a committee officially endorsed or convened by the Federal Reserve Board and/or the NYFRB
or, in each case, any successor thereto.
Credit Agreement
27
ny-2788047 |
“Relevant Rate” means (i) with respect to any Term Benchmark Borrowing, the Adjusted
Term SOFR Rate or (ii) with respect to any RFR Borrowing, the Adjusted Daily Simple SOFR
Rate, as applicable.
“Removal Effective Date” has the meaning given in Section 8.06(b).
“Removal Notice” has the meaning given in Section 5.10(b).
“REOC” means a “real estate operating company” within the meaning of Regulation
Section 2510.3-101(e) of the Plan Asset Regulation.
“Required Lenders” means, subject to Section 2.20, at any time, Lenders having
Revolving Credit Exposure and Unfunded Commitments representing more than fifty percent
(50%) of the sum of the Total Revolving Credit Exposure and Unfunded Commitments at such
time; provided that, (a) for the purpose of declaring the Loans to be due and payable pursuant to
Section 7.01, and for all purposes after the Loans become due and payable pursuant to Section
7.01 or the Commitments expire or terminate, the Unfunded Commitment for each Lender shall
be deemed to be zero and (b) for the purpose of declaring the Loans to be due and payable
pursuant to Section 7.01 and for the purpose of determining the Required Lenders needed for any
waiver, amendment, modification or consent of or under this Agreement or any other Loan
Document, any Lender that is any Borrower, or any Affiliate of any Borrower shall be
disregarded; and provided further that at any time that there is more than one Lender party hereto
that are not Defaulting Lenders, “Required Lenders” shall not constitute less than two (2)
unaffiliated Lenders that are not Defaulting Lenders.
“Resignation Effective Date” has the meaning given in Section 8.06(a).
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK
Financial Institution, a UK Resolution Authority.
“Responsible Officer” means, (a) in the case of a corporation, its chief executive officer,
president, vice president, chief financial officer, treasurer, assistant treasurer or controller,
general counsel or the equivalent of any of the foregoing (other than a secretary or assistant
secretary except for purposes of delivering incumbency certificates), and, in any case where two
Responsible Officers are acting on behalf of such corporation, the second such Responsible
Officer may be any secretary or assistant secretary or the equivalent thereof; (b) in the case of a
limited partnership or exempted limited partnership, any officer of its general partner or ultimate
general partner, as the case may be, or any officer of an entity that has authority to act on behalf
of such general partner or ultimate general partner, acting on behalf of the general partner or
ultimately general partner in its capacity as such of the limited partnership; (c) in the case of a
limited liability company, its chief executive officer, president, vice president, chief financial
officer, treasurer, assistant treasurer or controller, general counsel or the equivalent of any of the
foregoing (other than a secretary or assistant secretary except for purposes of delivering
incumbency certificates), and, in any case where two Responsible Officers are acting on behalf
of such limited liability company, the second such Responsible Officer may be any secretary or
assistant secretary or the equivalent thereof, any manager or managing member, in its capacity as
Credit Agreement
28
ny-2788047 |
manager or managing member of such limited liability company; (d) in the case of a statutory
trust, its trustees, president, vice president, chief financial officer, treasurer, assistant treasurer or
controller, general counsel or the equivalent of any of the foregoing (other than a secretary or
assistant secretary except for purposes of delivering incumbency certificates), and, in any case
where two Responsible Officers are acting on behalf of such statutory trust, the second such
Responsible Officer may be any secretary or assistant secretary or the equivalent thereof; and (e)
any other officer, employee or authorized signatory of the applicable Borrowers so designated by
any of the foregoing persons in a notice to Administrative Agent. Any document delivered
hereunder or under any other Loan Document that is signed by a Responsible Officer of a Person
shall be conclusively presumed to have been authorized by all necessary corporate, partnership
and/or other action on the part of such Person and such Responsible Officer shall be conclusively
presumed to have acted on behalf of such Person.
“Responsible Party” means, for any Governmental Plan Investor, (a) if the state, county,
municipality or other governmental subdivision under which the Governmental Plan Investor
operates is obligated to fund the Governmental Plan Investor and is liable to fund any shortfalls,
such state, county, municipality or other governmental subdivision, and (b) otherwise, the
Governmental Plan Investor itself.
“Restricted Payment” means partnership or other organizational distributions or
dividends of any Loan Party (in cash, property or obligations) on, or other payments or
distributions on account of, or the setting apart of money for a sinking or other analogous fund
for, or the purchase, redemption, retirement or other acquisition of, any portion of any stock,
membership interest or partnership interest (whether general or limited) in a Loan Party or of any
warrants, options or other rights to acquire any such partnership interest (or to make any
payments to any Person, such as “phantom stock” payments, where the amount thereof is
calculated with reference to fair market or equity value of a Loan Party or any Subsidiary).
“Revolving Credit Exposure” means, with respect to any Lender at any time, the sum of
the outstanding principal amount of such Lender’s Loans and its LC Exposure at such time.
“RFR Borrowing” means, as to any Borrowing, the RFR Loans comprising such
Borrowing.
“RFR Loan” means a Loan that bears interest at a rate based on the Adjusted Daily
Simple SOFR Rate.
“S&P” means Standard & Poor’s Ratings Service, a Standard & Poor’s Financial
Services LLC business.
“Sanctioned Country” means, at any time, a country, region or territory which is itself the
subject or target of any Sanctions (at the time of this Agreement, the so - called Donetsk People’s
Republic, the so- called Luhansk People’s Republic and Crimea regions of Ukraine, the non-
governmental controlled oblasts of Kherson and Zaporizhzhia, Cuba, Iran, North Korea and
Syria).
Credit Agreement
29
ny-2788047 |
“Sanctioned Person” means, at any time, any Person subject or target of any Sanctions,
including (a) any Person listed in any Sanctions-related list of designated Persons maintained by
the U.S. government, including by Office of Foreign Assets Control of the U.S. Department of
the Treasury, the U.S. Department of State, U.S. Department of Commerce, or by the United
Nations Security Council, the European Union, any European Union member state, His
Majesty’s Treasury of the United Kingdom or other relevant sanctions authority, (b) any Person
operating, organized or resident in a Sanctioned Country, (c) any Person owned or controlled by
any such Person or Persons described in the foregoing clauses (a) or (b) (including, without
limitation for purposes of defining a Sanctioned Person, as ownership and control may be
defined and/or established in and/or by any applicable laws, rules, regulations, or orders).
“Sanctions” means all economic or financial sanctions, trade embargoes or similar
restrictions imposed, administered or enforced from time to time by the U.S. government or any
other applicable government, including those administered by the Office of Foreign Assets
Control of the U.S. Department of the Treasury or the U.S. Department of State and including
those sanctions extended to the Cayman Islands by Order in Council.
“Secured Parties” means each of the Lenders, the Administrative Agent and the Issuing
Bank.
“Security Documents” means, collectively, each individually being a “Security
Document”, each Uniform Commercial Code financing statement required by this Agreement,
each Cash Collateral Agreement, and each Pledge.
“Shareholder” means any Person or Persons as may be a shareholder of the Parent
Borrower from time to time.
“Side Letter Agreement” means any letter agreement executed by any Investor in
connection with such Investor’s commitment to purchase shares of the Parent Borrower;
provided, however, Side Letter Agreements shall not include agreements with Investors that
solely relate to revenue sharing so long as such revenue sharing agreements could not be
reasonably expected to cause a Material Adverse Effect and do not otherwise affect the
Collateral.
“SOFR” means a rate equal to the secured overnight financing rate as administered by the
SOFR Administrator.
“SOFR Administrator” means the NYFRB (or a successor administrator of the secured
overnight financing rate).
“SOFR Administrator’s Website” means the NYFRB’s website, currently at http://
▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇, or any successor source for the secured overnight financing rate identified
as such by the SOFR Administrator from time to time.
“SOFR Determination Date” has the meaning specified in the definition of “Daily Simple
SOFR”.
Credit Agreement
30
ny-2788047 |
“SOFR Rate Day” has the meaning specified in the definition of “Daily Simple SOFR”.
“Solvent” means, as to any Person as of any date of determination, that on such date (a)
the fair value of the property of such Person is greater than the total amount of liabilities,
including contingent liabilities, of such Person, (b) the present fair saleable value of such Person
is not less than the amount that will be required to pay the probable liability of such Person on its
debts, including contingent debts, as they become absolute and matured, (c) such Person does not
intend to, and does not believe that it will, incur debts or liabilities, including contingent debts
and liabilities, beyond such Person’s ability to pay such debts and liabilities as they mature and
(d) such Person is not engaged in a business or a transaction, and is not about to engage in a
business or a transaction, for which such Person’s property would constitute an unreasonably
small capital. The amount of any contingent liability at any time shall be computed as the
amount that, in light of all of the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured liability.
“Sponsor” means, (a) for any ERISA Investor, the “plan sponsor” as that term is
commonly understood under ▇▇▇▇▇, specifically, the entity that established the plan and is
responsible for the maintenance of the plan and, in the case of a plan that has a sponsor and
participating employers, the entity that has the ability to amend or terminate the plan and (b) for
any Endowment Fund Investor, the state chartered, “not-for-profit” university or college that has
established such fund for its exclusive use and benefit, so long as the Sponsor is obligated to
fund the applicable Endowment Fund Investor’s Subscription Obligation. As used herein, the
term “not-for-profit” shall mean an entity formed not for pecuniary profit or financial gain and
for which no part of its assets, income or profit is distributable to, or inures to the benefit of, its
members, directors or officers.
“Subscription Account” means one or more collateral accounts for the deposit of
Subscription Payments, established by any Loan Party (as an account of such Loan Party at
JPMorgan), in each case pursuant to the applicable Cash Collateral Agreement, and any and all
subaccounts thereof, segregated accounts thereunder, and cash, deposit and other accounts
related or linked thereto, and any and all of their respective successor, replacement or substitute
accounts.
“Subscription Agreement” means each Subscription Agreement executed by the Parent
Borrower and an Investor, as purchaser, in connection with such Investor’s commitment to
purchase shares of the Parent Borrower, together with any related subscription documents.
“Subscription Call” means a request, demand, notice, or other call upon Investors to pay
all or any portion of their Subscription Obligations, including any request, demand, notice, or
other call by the Parent Borrower upon the Investors (including in respect of the Parent
Borrower’s obligations under Article IX hereunder), and, in each case, shall include a request,
demand, notice or other call made by the Administrative Agent during the existence of an Event
of Default.
Credit Agreement
31
ny-2788047 |
“Subscription Demand Notice” means any notice sent to Investors in connection with a
Subscription Call.
“Subscription Obligation” means the commitment and all other obligations of each
Investor to make payments to the Parent Borrower pursuant to such Investor’s Subscription
Agreement and any relevant provisions of the Parent Borrower’s Constituent Documents
(whether denominated as capital contributions or otherwise), including, in each case, in response
to any Subscription Calls by the Administrative Agent during the existence of an Event of
Default.
“Subscription Payment” means any payment in response to any Subscription Call or
otherwise in satisfaction of, any Subscription Obligation.
“Subscription Support Obligor” means, with respect to any Investor, any related Sponsor,
Responsible Party, Rated Entity or any other Person that is liable for or has Guaranteed or has
provided any other supporting obligation for such Investor’s Subscription Obligation.
“Subsequent Investors” means Investors executing Subscription Agreements after the
Effective Date who were not Investors (or in respect of Equity Interests in the Parent Borrower
not owned or committed to be purchased) as of the Effective Date.
“Subsidiary” means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other entity the accounts of
which would be consolidated with those of the parent in the parent’s consolidated financial
statements if such financial statements were prepared in accordance with GAAP as of such date,
as well as any other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more than fifty percent
(50%) of the equity or more than fifty percent (50%) of the ordinary voting power or, in the case
of a partnership, more than fifty percent (50%) of the general partnership interests are, as of such
date, directly or indirectly owned, controlled or held, or (b) that is, as of such date, otherwise
Controlled, by (i) the parent, (ii) one or more subsidiaries of the parent, or (iii) the parent and one
or more subsidiaries of the parent. Unless otherwise specified, “Subsidiary” means a Subsidiary
of a Borrower.
“Subsidiary Borrower” means a Majority-Owned Subsidiary of the Parent Borrower
which has duly executed and delivered the Subsidiary Borrower Joinder Documents to the
Administrative Agent and satisfied all of the conditions precedent contained therein.
“Subsidiary Borrower Joinder Documents” means, collectively, each individually being a
“Subsidiary Borrower Joinder Document”, the one or more Joinder Agreements among the
Administrative Agent (on behalf of the Lenders), a Subsidiary Borrower and the Parent Borrower
relating to a Subsidiary Borrower which is to become a Borrower hereunder at any time after the
Effective Date, the form of which is attached hereto as Exhibit I, together with all other
documents, instruments and certificates required by any such Joinder Agreement to be delivered
by such Subsidiary Borrower to the Administrative Agent on the date such Subsidiary Borrower
becomes a Borrower hereunder.
Credit Agreement
32
ny-2788047 |
“Supported QFC” has the meaning assigned to it in Section 10.22.
“Swap Agreement” means any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk or value or any
similar transaction or any combination of these transactions; provided that no phantom stock or
similar plan providing for payments only on account of services provided by current or former
directors, trustees, officers, employees or consultants of any Loan Party shall be a Swap
Agreement. For purposes hereof, the credit exposure at any time of any Person under a Swap
Agreement to which such Person is a party shall be determined at such time in accordance with
the standard methods of calculating credit exposure under similar arrangements as reasonably
prescribed from time to time by the Administrative Agent, taking into account (a) potential
interest rate movements, (b) the respective termination provisions, (c) the notional principal
amount and term of such Swap Agreement and (d) any provisions providing for the netting of
amounts payable by and to a Person thereunder (or simultaneous payments of amounts by and to
such Person).
“Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Temporary Increase” has the meaning assigned to it in Section 10.18(e).
“Term Benchmark Borrowing” means, as to any Borrowing, the Term Benchmark Loans
comprising such Borrowing.
“Term Benchmark Loan” means a Loan that bears interest at a rate based on the Adjusted
Term SOFR Rate.
“Term SOFR Determination Day” has the meaning assigned to it under the definition of
Term SOFR Reference Rate.
“Term SOFR Rate” means, with respect to any Term Benchmark Borrowing and for any
tenor comparable to the applicable Interest Period, the Term SOFR Reference Rate at
approximately 5:00 a.m., Chicago time, two (2) U.S. Government Securities Business Days prior
to the commencement of such tenor comparable to the applicable Interest Period, as such rate is
published by the CME Term SOFR Administrator.
“Term SOFR Reference Rate” means, for any day and time (such day, the “Term SOFR
Determination Day”), with respect to any Term Benchmark Borrowing denominated in Dollars
and for any tenor comparable to the applicable Interest Period, the rate per annum published by
the CME Term SOFR Administrator and identified by the Administrative Agent as the forward-
looking term rate based on SOFR. If by 5:00 pm (New York City time) on such Term SOFR
Determination Day, the “Term SOFR Reference Rate” for the applicable tenor has not been
published by the CME Term SOFR Administrator and a Benchmark Replacement Date with
Credit Agreement
33
ny-2788047 |
respect to the Term SOFR Rate has not occurred, then, so long as such day is otherwise a U.S.
Government Securities Business Day, the Term SOFR Reference Rate for such Term SOFR
Determination Day will be the Term SOFR Reference Rate as published in respect of the first
preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate
was published by the CME Term SOFR Administrator, so long as such first preceding U.S.
Government Securities Business Day is not more than five (5) U.S. Government Securities
Business Days prior to such Term SOFR Determination Day.
“Total Revolving Credit Exposure” means, at any time the sum of (a) the outstanding
principal amount of all Lenders’ Loans at such time and (b) their total LC Exposure at such time.
“Transactions” means the execution, delivery and performance by each Loan Party of the
Loan Documents to which such Loan Party is a party, the establishment of the credit facilities
▇▇▇▇▇▇▇▇▇, the borrowing of Loans, the use of the proceeds thereof, the issuance of Letters of
Credit hereunder, the granting of Liens on the Collateral under the Loan Documents, and the
execution, delivery and performance by the Included Investors of their respective Investor
Acknowledgments.
“Transferor” has the meaning given in Section 6.12(b).
“Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to
the Adjusted Term SOFR Rate or the Alternate Base Rate.
“UCC” means the Uniform Commercial Code as in effect in the jurisdiction of
organization of the applicable entity, as amended from time to time.
“UCC Searches” has the meaning given in Section 4.01(o).
“UK Financial Institutions” means any BRRD Undertaking (as such term is defined
under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom
Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook
(as amended from time to time) promulgated by the United Kingdom Financial Conduct
Authority, which includes certain credit institutions and investment firms, and certain affiliates
of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public
administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement
excluding the related Benchmark Replacement Adjustment.
“Unfunded Capital Commitment” means, with respect to any Investor, at any time, the
unfunded or unpaid Subscription Obligations of such Investor, provided that the Unfunded
Capital Commitment of any Included Investor shall be reduced to the extent that (a) its Unfunded
Capital Commitment is excused, as a result of regulatory concerns or otherwise, or is otherwise
Credit Agreement
34
ny-2788047 |
discharged (by act of any Person, by operation of law, or otherwise), (b) its Unfunded Capital
Commitment is not funded in Dollars, (c) its Unfunded Capital Commitment is not a full
recourse obligation of such Investor in the entire amount thereof, subject to monetary judgment
for nonpayment, (d) its Unfunded Capital Commitment is limited by geographical, industry
segment, or other factors relating to the use of proceeds of its Unfunded Capital Commitment
(but only to the extent that any affected Loan or Letter of Credit is outstanding), (e) it has the
right to satisfy any portion of its Unfunded Capital Commitment by the contribution of property
other than cash or (f) there are any pending and unpaid Subscription Calls. If at any time any
investor subject to the Bank Holding Company Act of 1956 holds more than twenty-four point
nine percent (24.9%) of the Equity Interests in the Parent Borrower, there shall be excluded from
the computation of the Unfunded Capital Commitment relating to such holdings in excess of
twenty-four point nine percent (24.9%).
“Unfunded Commitment” means, with respect to each Lender, the Commitment of such
Lender less its Revolving Credit Exposure.
“U.S. Government Securities Business Day” means any day except for (i) a Saturday, (ii)
a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association
recommends that the fixed income departments of its members be closed for the entire day for
purposes of trading in United States government securities.
“U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30)
of the Code.
“U.S. Special Resolution Regimes” has the meaning assigned to it in Section 10.22.
“U.S. Tax Compliance Certificate” has the meaning given in Section 2.15(f)(ii)(B)(3).
“VCOC” means a “venture capital operating company” within the meaning of Section
2510.3-101(d) of the Plan Asset Regulation.
“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution
Authority, the write-down and conversion powers of such EEA Resolution Authority from time
to time under the Bail-In Legislation for the applicable EEA Member Country, which write-
down and conversion powers are described in the EU Bail-In Legislation Schedule and (b) with
respect to the United Kingdom, any powers of the applicable Resolution Authority under the
Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK
Financial Institution or any contract or instrument under which that liability arises, to convert all
or part of that liability into shares, securities or obligations of that person or any other person, to
provide that any such contract or instrument is to have effect as if a right had been exercised
under it or to suspend any obligation in respect of that liability or any of the powers under that
Bail-In Legislation that are related to or ancillary to any of those powers.
Section 1.02Classification of Loans and Borrowings. For purposes of this Agreement,
Loans may be classified and referred to by Type (e.g., a “Term Benchmark Loan” or an “RFR
Credit Agreement
35
ny-2788047 |
Loan”). Borrowings also may be classified and referred to by Type (e.g., a “Term Benchmark
Borrowing” or an “RFR Borrowing”).
Section 1.03Terms Generally. The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”.
The word “will” shall be construed to have the same meaning and effect as the word “shall”.
Unless the context requires otherwise (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or otherwise
modified (subject to any restrictions on such amendments, supplements or modifications set forth
herein), (b) any reference herein to any Person shall be construed to include such Person’s
successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, (e)
any reference to any law, rule or regulation herein shall, unless otherwise specified, refer to such
law, rule or regulation as amended, modified or supplemented from time to time and (f) the
words “asset” and “property” shall be construed to have the same meaning and effect and to refer
to any and all tangible and intangible assets and properties, including cash, securities, accounts
and contract rights. References to any Cayman Islands exempted limited partnership, if
applicable, taking any action or holding any property shall be deemed to be references to such
person taking such action or holding such property, as applicable, through and by its general
partner (or, as the case may be, such general partners’ ultimate general partner).
Section 1.04Accounting Terms; GAAP.
(a)Except as otherwise expressly provided herein, all terms of an accounting
or financial nature shall be construed in accordance with GAAP, as in effect from time to time;
provided that, if the Parent Borrower notifies the Administrative Agent that the Parent Borrower
requests an amendment to any provision hereof to eliminate the effect of any change occurring
after the date hereof in GAAP or in the application thereof on the operation of such provision (or
if the Administrative Agent notifies the Parent Borrower that the Required Lenders request an
amendment to any provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately before such
change shall have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith. Notwithstanding any other provision contained
herein, all terms of an accounting or financial nature used herein shall be construed, and all
computations of amounts and ratios referred to herein shall be made, without giving effect to (i)
any election under Financial Accounting Standards Board Accounting Standards Codification
825 (or any other Financial Accounting Standard having a similar result or effect) to value any
Indebtedness or other liabilities of a Loan Party or any Subsidiary at “fair value”, as defined
therein and (ii) any treatment of Indebtedness under Accounting Standards Codification 470-20
or 2015-03 (or any other Accounting Standards Codification or Financial Accounting Standard
having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated
manner as described therein, and such Indebtedness shall at all times be valued at the full stated
principal amount thereof.
(b)Notwithstanding anything to the contrary contained in Section 1.04(a) or
in the definition of “Capital Lease Obligations”, any change in accounting for leases pursuant to
GAAP resulting from the adoption of Financial Accounting Standards Board Accounting
Credit Agreement
36
ny-2788047 |
Standards Update No. 2016-02, Leases (Topic 842) (“FAS 842”), to the extent such adoption
would require treating any lease (or similar arrangement conveying the right to use) as a capital
lease where such lease (or similar arrangement) would not have been required to be so treated
under GAAP as in effect on December 31, 2015, such lease shall not be considered a capital
lease, and all calculations and deliverables under this Agreement or any other Loan Document
shall be made or delivered, as applicable, in accordance therewith.
Section 1.05Interest Rates; Benchmark Notification. The interest rate on a Loan
denominated in dollars may be derived from an interest rate benchmark that may be discontinued
or is, or may in the future become, the subject of regulatory reform. Upon the occurrence of a
Benchmark Transition Event, Section 2.12(b) provides a mechanism for determining an
alternative rate of interest. The Administrative Agent does not warrant or accept any
responsibility for, and shall not have any liability with respect to (other than in cases of the
Administrative Agent’s gross negligence or willful misconduct), the administration, submission,
performance or any other matter related to any interest rate used in this Agreement, or with
respect to any alternative or successor rate thereto, or replacement rate thereof, including without
limitation, whether the composition or characteristics of any such alternative, successor or
replacement reference rate will be similar to, or produce the same value or economic equivalence
of, the existing interest rate being replaced or have the same volume or liquidity as did any
existing interest rate prior to its discontinuance or unavailability. The Administrative Agent and
its affiliates and/or other related entities may engage in transactions that affect the calculation of
any interest rate used in this Agreement or any alternative, successor or alternative rate
(including any Benchmark Replacement) and/or any relevant adjustments thereto, in each case,
in a manner adverse to the Borrowers. The Administrative Agent may select information sources
or services in its reasonable discretion to ascertain any interest rate used in this Agreement, any
component thereof, or rates referenced in the definition thereof, in each case pursuant to the
terms of this Agreement, and shall have no liability to the Borrowers, any Lender or any other
person or entity for damages of any kind, including direct or indirect, special, punitive, incidental
or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and
whether at law or in equity), for any error or calculation of any such rate (or component thereof)
provided by any such information source or service.
Section 1.06Letter of Credit Amounts. Unless otherwise specified herein, the amount
of a Letter of Credit at any time shall be deemed to be the amount of such Letter of Credit
available to be drawn at such time; provided that with respect to any Letter of Credit that, by its
terms, provides for one or more automatic increases in the available amount thereof, the amount
of such Letter of Credit shall be deemed to be the maximum amount of such Letter of Credit
after giving effect to all such increases, whether or not such maximum amount is available to be
drawn at such time.
Section 1.07Divisions. For all purposes under the Loan Documents, in connection with
any division or plan of division under Delaware law (or any comparable event under a different
jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset,
right, obligation or liability of a different Person, then it shall be deemed to have been transferred
from the original Person to the subsequent Person, and (b) if any new Person comes into
existence, such new Person shall be deemed to have been organized and acquired on the first date
of its existence by the holders of its Equity Interests at such time.
Credit Agreement
37
ny-2788047 |
ARTICLE II
THE CREDITS
Section 2.01The Commitments. Subject to the terms and conditions set forth herein,
each Lender agrees to make Loans to the Borrowers from time to time during the Availability
Period in Dollars in an aggregate principal amount that will not result (after giving effect to any
application of proceeds of such Borrowing pursuant to Section 2.08) in (a) such Lender’s
Revolving Credit Exposure exceeding the lesser of such ▇▇▇▇▇▇’s Commitment and such
Lender’s Applicable Percentage of the aggregate Available Commitment or (b) the Total
Revolving Credit Exposure relating to the Borrowers exceeding the Available Commitment then
in effect. Within the foregoing limits and subject to the terms and conditions set forth herein, the
Borrowers may borrow, prepay and reborrow Loans.
Section 2.02Loans and Borrowings.
(a)Obligations of Lenders. Each Loan shall be made as part of a Borrowing
consisting of Loans made by the Lenders ratably in accordance with their respective
Commitments. The failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the Commitments of the
Lenders are several and no Lender shall be responsible for any other Lender’s failure to make
Loans as required.
(b)Loans. Subject to Section 2.12, each Borrowing shall be comprised
entirely of ABR Loans or Term Benchmark Loans, as a Borrower may request in accordance
herewith. Each Lender at its option may make any Loan by causing any domestic or foreign
branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option
shall not affect the obligation of the Borrowers to repay such Loan in accordance with the terms
of this Agreement. For purposes of clarity, notwithstanding anything else to the contrary
contained herein, RFR Loans shall not be available to the Borrowers except as provided in
Section 2.12.
(c)Minimum Amounts; Limitation on Number of Borrowings. At the
commencement of each Interest Period for any Term Benchmark Borrowing, such Borrowing
shall be in an aggregate amount that is an integral multiple of $50,000 and not less than
$500,000. At the time that each ABR Borrowing and/or RFR Borrowing is made, such
Borrowing shall be in an aggregate amount that is an integral multiple of $50,000 and not less
than $500,000; provided that an ABR Borrowing may be in an aggregate amount that is equal to
the entire unused balance of the total Commitments or that is required to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.04(e); provided further that
such Borrowing may be in amounts less than $500,000 if applied towards payments of interest.
Borrowings of more than one Type may be outstanding at the same time; provided that there
shall not at any time be more than a total of seven (7) Term Benchmark Borrowings or RFR
Borrowings outstanding.
(d)Limitation on Lengths of Interest Periods. Notwithstanding any other
provision of this Agreement, the Borrowers shall not be entitled to request, or to elect to convert
or continue, any Borrowing if the Interest Period requested with respect thereto would end after
the Maturity Date.
Section 2.03Requests for Borrowings. To request a Borrowing, the applicable
Borrower shall notify the Administrative Agent of such request by submitting a Borrowing
Request (a)(i) in the case of a Term Benchmark Borrowing, not later than 12:00 p.m., New York
Credit Agreement
38
ny-2788047 |
City time, three (3) U.S. Government Securities Business Days (or such shorter time as the
Administrative Agent and Lenders may permit in writing) before the date of the proposed
Borrowing or (ii) if applicable, in the case of an RFR Borrowing, not later than 12:00 p.m., New
York City time, three (3) U.S. Government Securities Business Days (or such shorter time as the
Administrative Agent and Lenders may permit in writing) before the date of the proposed
Borrowing or (b) in the case of an ABR Borrowing, not later than 12:00 p.m., New York City
time, one (1) Business Day (or such shorter time as the Administrative Agent and Lenders may
permit in writing) before the date of the proposed Borrowing; provided that any such notice of an
ABR Borrowing to finance the reimbursement of an LC Disbursement as contemplated by
Section 2.04(e) may be given not later than 11:00 a.m., New York City time, on the date of the
proposed Borrowing. Each such Borrowing Request shall be irrevocable and shall be signed by
a Responsible Officer of the Borrower. Each such Borrowing Request shall specify the
following information in compliance with Section 2.02:
(i)the aggregate amount of the requested Borrowing;
(ii)the date of such Borrowing, which shall be a Business Day;
(iii)whether such Borrowing is to be an ABR Borrowing or a Term
Benchmark Borrowing;
(iv)in the case of a Term Benchmark Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by the definition of
the term “Interest Period”;
(v)the location and number of such Borrower’s account to which
funds are to be disbursed, which shall comply with the requirements of Section 2.05; and
(vi)the Approved Use for which such Borrowing is being made.
If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an
ABR Borrowing. Promptly following receipt of a Borrowing Request in accordance with this
Section, the Administrative Agent shall advise each Lender of the details thereof and of the
amount of such ▇▇▇▇▇▇’s Loan to be made as part of the requested Borrowing.
Loans shall be allocated pro rata amongst the Lenders, provided that in the event that any
Temporary Increases are currently outstanding, then the applicable Borrower shall be permitted
to elect that any applicable Borrowing shall be made under a Temporary Increase.
Together with each such Borrowing Request, the Parent Borrower shall also deliver to the
Administrative Agent a duly executed Borrowing Base Certificate as of such date (which may be
attached as an annex to such Borrowing Request).
Section 2.04Letters of Credit.
(a)General. Subject to the terms and conditions set forth herein, the Borrower
may request the Issuing Bank to issue Letters of Credit as the applicant thereof for the support of
its or its Subsidiaries’ obligations, in a form reasonably acceptable to the Issuing Bank, at any
time and from time to time during the Availability Period. In the event of any inconsistency
between the terms and conditions of this Agreement and the terms and conditions of any Letter
of Credit Agreement, the terms and conditions of this Agreement shall control. Notwithstanding
Credit Agreement
39
ny-2788047 |
anything herein to the contrary, the Issuing Bank shall have no obligation hereunder to issue, and
shall not issue, any Letter of Credit the proceeds of which would be made available to any
Person (i) to fund any activity or business of or with any Sanctioned Person, or in any country or
territory that, at the time of such funding is the subject of any Sanctions, (ii) in any manner that
would result in a violation of any Sanctions by any party to this Agreement, or (iii) in any
manner that would result in a violation of one or more policies of the Issuing Bank applicable to
letters of credit generally.
(b)Notice of Issuance, Amendment, Extension; Certain Conditions. To
request the issuance of a Letter of Credit (or the amendment or extension of an outstanding
Letter of Credit), a Borrower shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the Issuing Bank) to the
Issuing Bank and the Administrative Agent (reasonably in advance of the requested date of
issuance, amendment or extension, but in any event no less than three (3) Business Days) a
notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be
amended or extended, and specifying the date of issuance, amendment or extension (which shall
be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with
Section 2.04(d)), the amount of such Letter of Credit, the name and address of the beneficiary
thereof and such other information as shall be necessary to prepare, amend or extend such Letter
of Credit. In addition, as a condition to any such Letter of Credit issuance, such Borrower shall
have entered into a continuing agreement (or other letter of credit agreement) for the issuance of
letters of credit and/or shall submit a letter of credit application, in each case, as required by the
Issuing Bank and using the Issuing Bank’s standard form (each, a “Letter of Credit Agreement”).
In the event of any conflict between the terms and conditions of this Agreement and the terms
and conditions of any Letter of Credit Agreement, the terms and conditions of this Agreement
shall control. A Letter of Credit shall be issued, amended or extended only if (and upon issuance,
amendment or extension of each Letter of Credit the Borrower shall be deemed to represent and
warrant that), after giving effect to such issuance, amendment or extension (i) (x) the aggregate
undrawn amount of all outstanding Letters of Credit issued by any Issuing Bank at such time
plus (y) the aggregate amount of all LC Disbursements made by such Issuing Bank that have not
yet been reimbursed by or on behalf of the Borrower at such time shall not exceed its Letter of
Credit Commitment, (ii) the LC Exposure shall not exceed the total Letter of Credit
Commitments and (iii) no Lender’s Revolving Credit Exposure shall exceed its Commitment.
The Borrowers may, at any time and from time to time, reduce the Letter of Credit Commitment
of any Issuing Bank with the consent of such Issuing Bank; provided that the Borrowers shall not
reduce the Letter of Credit Commitment of any Issuing Bank if, after giving effect of such
reduction, the conditions set forth in clauses (i) through (iii) above shall not be satisfied.
An Issuing Bank shall not be under any obligation to issue any Letter of Credit if:
(i)any order, judgment or decree of any Governmental Authority or
arbitrator shall by its terms purport to enjoin or restrain such Issuing Bank from issuing,
amending or extending such Letter of Credit, or request that such Issuing Bank refrain
from issuing such Letter of Credit or any law applicable to such Issuing Bank shall
prohibit the issuance, amendment or extension of letters of credit generally or such Letter
of Credit in particular, or such order, judgment or decree, or law or shall impose upon
such Issuing Bank with respect to such Letter of Credit any restriction, reserve or capital
or liquidity requirement (for which such Issuing Bank is not otherwise compensated
hereunder) not in effect on the Effective Date, or shall impose upon such Issuing Bank
any unreimbursed loss, cost or expense that was not applicable on the Effective Date and
that such Issuing Bank in good ▇▇▇▇▇ ▇▇▇▇▇ material to it; or
Credit Agreement
40
ny-2788047 |
(ii)the issuance, amendment or extension of such Letter of Credit
would violate one or more policies of such Issuing Bank applicable to letters of credit
generally.
(c)Limitations on Amounts. A Letter of Credit shall be issued, amended,
renewed or extended only if (and upon issuance, amendment or extension of each Letter of
Credit the applicable Borrower shall be deemed to represent and warrant that), after giving effect
to such issuance, amendment, renewal or extension (i) the LC Exposure shall not exceed the
Letter of Credit Commitment, (ii) no Lender’s Revolving Credit Exposure shall exceed its
Commitment, (iii) the Total Revolving Credit Exposure shall not exceed the Available
Commitment, and (iv) the minimum undrawn amount under such Letter of Credit is at least
$500,000.
(d)Expiration Date. Each Letter of Credit shall expire at or prior to the close
of business on the earlier of (i) the date one year after the date of the issuance of such Letter of
Credit (or, in the case of any extension of the expiration date thereof, one (1) year after such
extension, but not beyond the date specified in clause (ii) of this Section 2.04(d)) and (ii) the date
that is thirty (30) days prior to the date specified in clause (a) of the definition of Maturity Date.
(e)Participations. By the issuance of a Letter of Credit (or an amendment to a
Letter of Credit increasing the amount or extending the term thereof), and without any further
action on the part of the Issuing Bank or the Lenders, the Issuing Bank hereby grants to each
Lender, and each Lender hereby acquires from the Issuing Bank, a participation in such Letter of
Credit equal to such Lender’s Applicable Percentage of the aggregate amount available to be
drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each
▇▇▇▇▇▇ hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the
account of the Issuing Bank, such Lender’s Applicable Percentage of each LC Disbursement
made by the Issuing Bank promptly upon the request of the Issuing Bank at any time from the
time of such LC Disbursement until such LC Disbursement is reimbursed by the applicable
Borrower or at any time after any reimbursement payment is required to be refunded to the
applicable Borrower for any reason, including after the Maturity Date. Each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever. Each Lender
acknowledges and agrees that its obligations to acquire participations pursuant to this Section
2.04(e) in respect of Letters of Credit and to make payments in respect of such acquired
participations are absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of Credit or the
occurrence and continuance of a Default or reduction or termination of the Commitments.
(f)Reimbursement. If the Issuing Bank shall make any LC Disbursement in
respect of a Letter of Credit, the applicable Borrower shall reimburse such LC Disbursement by
paying to the Administrative Agent an amount equal to such LC Disbursement not later than
12:00 noon, New York City time, on the date that such LC Disbursement is made, if the
applicable Borrower shall have received notice of such LC Disbursement prior to 11:00 a.m.,
New York City time, on such date, or, if such notice has not been received by such Borrower
prior to such time on such date, then not later than 12:00 noon, New York City time, on (i) the
Business Day that such Borrower receives such notice, if such notice is received prior to 11:00
a.m., New York City time, on the day of receipt, or (ii) the Business Day immediately following
the day that such Borrower receives such notice, if such notice is not received prior to such time
on the day of receipt; provided that, such Borrower may, subject to the conditions to borrowing
set forth herein, request in accordance with Section 2.03 that such payment be financed with an
ABR Borrowing in an equivalent amount and, to the extent so financed, such Borrower’s
obligation to make such payment shall be discharged and replaced by the resulting ABR
Borrowing. If a Borrower fails to make such payment when due, the Administrative Agent shall
Credit Agreement
41
ny-2788047 |
notify each Lender of the applicable LC Disbursement, the payment then due from such
Borrower in respect thereof and such Lender’s Applicable Percentage thereof. Promptly
following receipt of such notice, each Lender shall pay to the Administrative Agent its
Applicable Percentage of the payment then due from such Borrower, in the same manner as
provided in Section 2.05 with respect to Loans made by such Lender (and Section 2.05 shall
apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative
Agent shall promptly pay to the Issuing Bank the amounts so received by it from the Lenders.
Promptly following receipt by the Administrative Agent of any payment from a Borrower
pursuant to this Section 2.04(f), the Administrative Agent shall distribute such payment to the
Issuing Bank or, to the extent that Lenders have made payments pursuant to this Section 2.04(f)
to reimburse the Issuing Bank, then to such Lenders and the Issuing Bank as their interests may
appear. Any payment made by a Lender pursuant to this Section 2.04(f) to reimburse the Issuing
Bank for any LC Disbursement (other than the funding of ABR Loans as contemplated above)
shall not constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such
LC Disbursement.
(g)Obligations Absolute. Each Borrower’s obligation to reimburse LC
Disbursements as provided in Section 2.04(f) shall be absolute, unconditional and irrevocable,
and shall be performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit, any Letter of Credit Agreement, or this Agreement, or any term or provision
therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any
respect, (iii) payment by the Issuing Bank under a Letter of Credit against presentation of a draft
or other document that does not comply strictly with the terms of such Letter of Credit, and (iv)
any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that
might, but for the provisions of this Section 2.04, constitute a legal or equitable discharge of, or
provide a right of setoff against, such ▇▇▇▇▇▇▇▇’s obligations hereunder. Neither the
Administrative Agent, the Lenders nor the Issuing Bank, nor any of their respective Related
Parties, shall have any liability or responsibility by reason of or in connection with the issuance
or transfer of any Letter of Credit by the Issuing Bank or any payment or failure to make any
payment thereunder (irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any
draft, notice or other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of technical terms,
any error in translation or any consequence arising from causes beyond the control of the Issuing
Bank; provided that the foregoing shall not be construed to excuse the Issuing Bank from
liability to a Borrower to the extent of any direct damages (as opposed to consequential damages,
claims in respect of which are hereby waived by the Borrowers to the extent permitted by
applicable law) suffered by such Borrower that are caused by the Issuing Bank’s failure to
exercise care when determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of
gross negligence or willful misconduct on the part of the Issuing Bank (as finally determined by
a court of competent jurisdiction), the Issuing Bank shall be deemed to have exercised care in
each such determination. In furtherance of the foregoing and without limiting the generality
thereof, the parties agree that, with respect to documents presented which appear on their face to
be in substantial compliance with the terms of a Letter of Credit, the Issuing Bank may, in its
sole discretion, either accept and make payment upon such documents without responsibility for
further investigation, regardless of any notice or information to the contrary, or refuse to accept
and make payment upon such documents if such documents are not in strict compliance with the
terms of such Letter of Credit.
Credit Agreement
42
ny-2788047 |
(h)Disbursement Procedures. The Issuing Bank shall, within the time allowed
by applicable law or the specific terms of the Letter of Credit following its receipt thereof,
examine all documents purporting to represent a demand for payment under a Letter of Credit.
The Issuing Bank shall promptly after such examination notify the Administrative Agent and the
applicable Borrower by telephone (confirmed by telecopy or electronic mail) of such demand for
payment and whether the Issuing Bank has made or will make an LC Disbursement thereunder;
provided that such notice need not be given prior to the payment by the Issuing Bank and any
failure to give or delay in giving such notice shall not relieve such Borrower of its obligation to
reimburse the Issuing Bank and the Lenders with respect to any such LC Disbursement.
(i)Interim Interest. If the Issuing Bank shall make any LC Disbursement,
then, unless the applicable Borrower shall reimburse such LC Disbursement in full on the date
such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from
and including the date such LC Disbursement is made to but excluding the date that
reimbursement is due and payable, at the rate per annum then applicable to ABR Loans and such
interest shall be due and payable on the date when such reimbursement is payable; provided that,
if such Borrower fails to reimburse such LC Disbursement when due pursuant to Section 2.04(f),
then Section 2.11(d) shall apply. Interest accrued pursuant to this Section 2.04(i) shall be for the
account of the Issuing Bank, except that interest accrued on and after the date of payment by any
Lender pursuant to Section 2.04(e) to reimburse the Issuing Bank for such LC Disbursement
shall be for the account of such Lender to the extent of such payment.
(j)Replacement and Resignation of the Issuing Bank.
(i)The Issuing Bank may be replaced at any time by joint written
agreement among the Borrowers, the Administrative Agent, the replaced Issuing Bank
and the successor Issuing Bank. The Administrative Agent shall notify the Lenders of any
such replacement of the Issuing Bank. At the time any such replacement shall become
effective, each Borrower shall pay all unpaid fees with respect to such Borrower accrued
for the account of the replaced Issuing Bank pursuant to Section 2.10(b). From and after
the effective date of any such replacement, (i) the successor Issuing Bank shall have all
the rights and obligations of the replaced Issuing Bank under this Agreement with respect
to Letters of Credit to be issued thereafter and (ii) references herein to the term “Issuing
Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to
such successor and all previous Issuing Banks, as the context shall require. After the
replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party
hereto and shall continue to have all the rights and obligations of an Issuing Bank under
this Agreement with respect to Letters of Credit issued by it prior to such replacement,
but shall not be required to issue additional Letters of Credit or extend or otherwise
amend any existing Letter of Credit.
(ii)Subject to the appointment and acceptance of a successor ▇▇▇▇▇▇▇
Bank, any Issuing Bank may resign as an Issuing Bank at any time upon thirty (30) days’
prior written notice to the Administrative Agent, the Parent Borrower and the Lenders, in
which case, such resigning Issuing Bank shall be replaced in accordance with Section
2.04(j)(i) above.
(k)Cash Collateralization. If either (i) an Event of Default shall occur and be
continuing and a Borrower receives notice from the Administrative Agent or the Required
Lenders (or, if the maturity of the Loans has been accelerated, Lenders with LC Exposure
representing more than fifty percent (50%) of the total LC Exposure) demanding the deposit of
cash collateral pursuant to this Section 2.04(k), or (ii) a Borrower shall be required to provide
cover for LC Exposure pursuant to Section 2.09(b)(i) or Section 2.09(b)(ii), such Borrower shall
Credit Agreement
43
ny-2788047 |
(immediately in the case of clause (i) of this Section 2.04(k) and Section 2.09(b)(ii) and, in the
case of Section 2.09(b)(i), within the applicable time limits provided therein) deposit into an
account (the “LC Collateral Account”) with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Lenders, an amount in cash equal to, in the case
of an Event of Default, one hundred and five percent (105%) of the LC Exposure with respect to
such Borrower as of such date plus any accrued and unpaid interest thereon and, in the case of
cover pursuant to Section 2.09(b)(i) or Section 2.09(b)(ii), the amount required under Section
2.09(b)(i) or Section 2.09(b)(ii); provided that the obligation to deposit such cash collateral shall
become effective immediately, and such deposit shall become immediately due and payable,
without demand or other notice of any kind, upon the occurrence of any Event of Default with
respect to a Borrower described in Section 7.01(g) or Section 7.01(h). Such deposit shall be held
by the Administrative Agent in the LC Collateral Account as collateral in the first instance for
the LC Exposure with respect to such Borrower under this Agreement and thereafter for the
payment of the other Obligations of such Borrower. In addition, and without limiting the
foregoing or paragraph (c) of this Section, if any LC Exposure remain outstanding after the
expiration date specified in said paragraph (d), the Borrower shall immediately deposit into the
LC Collateral Account an amount in cash equal to one hundred and five percent (105%) of such
LC Exposure as of such date plus any accrued and unpaid interest thereon. Such deposit shall be
held by the Administrative Agent in the LC Collateral Account as collateral in the first instance
for the LC Exposure with respect to such Borrower under this Agreement and thereafter for the
payment of the other Obligations of such Borrower.
(l)The Administrative Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such account. Other than any interest earned on
the investment of such deposits, which investments shall be made at the option and sole
discretion of the Administrative Agent and at the Borrowers’ risk and expense, such deposits
shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such
account. Moneys in such account shall be applied by the Administrative Agent to reimburse the
Issuing Bank for LC Disbursements for which it has not been reimbursed, together with related
fees, costs and customary processing charges, and, to the extent not so applied, shall be held for
the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure at such
time or, if the maturity of the Loans has been accelerated (but subject to the consent of Lenders
with LC Exposure representing greater than fifty percent (50%) of the total LC Exposure), be
applied to satisfy other Obligations of the Borrowers under this Agreement. If a Borrower is
required to provide an amount of cash collateral hereunder as a result of the occurrence of an
Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to such
Borrower within three (3) Business Days after all Events of Default have been cured or waived.
The Borrowers shall, from time to time, concurrently with the deposit of the cash collateral,
deliver to the Administrative Agent such documents and agreements as shall be reasonably
required by the Administrative Agent in order to perfect a first priority security interest in such
cash collateral, duly executed by the applicable Borrowers and in favor of the Administrative
Agent (on behalf of the Lenders).
(m)[Reserved].
(n)Letters of Credit Issued for Account of Subsidiaries. Notwithstanding that
a Letter of Credit issued or outstanding hereunder supports any obligations of, or is for the
account of, a Subsidiary, or states that a Subsidiary is the “account party,” “applicant,”
“customer,” “instructing party,” or the like of or for such Letter of Credit, and without derogating
Credit Agreement
44
ny-2788047 |
from any rights of the Issuing Bank (whether arising by contract, at law, in equity or otherwise)
against such Subsidiary in respect of such Letter of Credit, the applicable Borrower (i) shall
reimburse, indemnify and compensate the Issuing Bank hereunder for such Letter of Credit
(including to reimburse any and all drawings thereunder) as if such Letter of Credit had been
issued solely for the account of the applicable Borrower and (ii) irrevocably waives any and all
defenses that might otherwise be available to it as a guarantor or surety of any or all of the
obligations of such Subsidiary in respect of such Letter of Credit. Each Borrower hereby
acknowledges that the issuance of such Letters of Credit for its respective Subsidiaries inures to
the benefit of such Borrower, and that such Borrower’s business derives substantial benefits from
the businesses of such Subsidiaries.
Section 2.05Funding of Borrowings.
(a)Funding by ▇▇▇▇▇▇▇. Each Lender shall make each Loan to be made by it
hereunder on the proposed date thereof by wire transfer of immediately available funds by 12:00
noon, New York City time, to the account of the Administrative Agent most recently designated
by it for such purpose by notice to the Lenders. The Administrative Agent will make such Loans
available to the Borrowers by promptly crediting the amounts so received, in like funds, to an
account of the applicable Borrower maintained with the Administrative Agent in New York City
and designated by the applicable Borrower in the applicable Borrowing Request; provided that
ABR Loans made to finance the reimbursement of an LC Disbursement as provided in Section
2.04(f) shall be remitted by the Administrative Agent to the Issuing Bank.
(b)Presumption by the Administrative Agent. Unless the Administrative
Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that
such Lender will not make available to the Administrative Agent such ▇▇▇▇▇▇’s share of such
Borrowing, the Administrative Agent may assume that such ▇▇▇▇▇▇ has made such share
available on such date in accordance with Section 2.05(a) and may, in reliance upon such
assumption, make available to the applicable Borrower a corresponding amount. In such event, if
a Lender has not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the applicable Borrower severally agree to
pay to the Administrative Agent forthwith on demand such corresponding amount with interest
thereon, for each day from and including the date such amount is made available to such
Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of
such Lender, the greater of the NYFRB Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation or (ii) in the case of a
Borrower, the interest rate applicable to ABR Loans. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender’s Loan included in such
Borrowing.
Section 2.06Interest Elections.
(a)Each Borrowing initially shall be of the Type specified in the applicable
Borrowing Request. Thereafter, a Borrower may elect to convert such Borrowing to a different
Type or to continue such Borrowing as a Borrowing of the same Type, all as provided in this
Section. A Borrower may elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding
the Loans comprising such Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing.
(b)To make an election pursuant to this Section, a Borrower shall notify the
Administrative Agent of such election by the time that a Borrowing Request would be required
under Section 2.03 if such Borrower were requesting a Borrowing of the Type resulting from
Credit Agreement
45
ny-2788047 |
such election to be made on the effective date of such election. Each such Interest Election
Request shall be irrevocable and shall be signed by a Responsible Officer of the Borrowers;
provided that, if such Interest Election Request is submitted through an Approved Borrower
Portal, the foregoing signature requirement may be waived at the sole discretion of the
Administrative Agent.
(c)Each Interest Election Request shall specify the following information in
compliance with Section 2.02:
(i)the Borrowing to which such Interest Election Request applies and,
if different options are being elected with respect to different portions thereof, the
portions thereof to be allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii) and (iv) below shall be specified for
each resulting Borrowing);
(ii)the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii)whether the resulting Borrowing is to be an ABR Borrowing or a
Term Benchmark Borrowing; and
(iv)if the resulting Borrowing is a Term Benchmark Borrowing, the
Interest Period to be applicable thereto after giving effect to such election, which shall be
a period contemplated by the definition of the term “Interest Period”.
Notwithstanding the foregoing, in no event shall the Borrower be permitted to request pursuant
to this Section 2.06(c) prior to a Benchmark Transition Event and Benchmark Replacement Date
with respect to the Term SOFR Rate, an RFR Loan bearing interest based on Daily Simple SOFR
(it being understood and agreed that Daily Simple SOFR shall only apply to the extent provided
in Sections 2.12(a) and 2.12(f)), as applicable.
(d)Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such ▇▇▇▇▇▇’s
portion of each resulting Borrowing.
(e)If a Borrower fails to deliver a timely Interest Election Request with
respect to a Term Benchmark Borrowing prior to the end of the Interest Period applicable
thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest
Period such Borrowing shall be deemed to have an Interest Period that is one month.
Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is
continuing and the Administrative Agent, at the request of the Required ▇▇▇▇▇▇▇, so notifies the
Parent Borrower, then, so long as an Event of Default is continuing (i) no outstanding Borrowing
may be converted to or continued as a Term Benchmark Borrowing or RFR Borrowing and (ii)
unless repaid, (A) each Term Benchmark Borrowing shall be converted to an ABR Borrowing at
the end of the Interest Period applicable thereto and (B) each RFR Borrowing, if applicable, shall
be converted to an ABR Borrowing immediately.
Section 2.07Termination, Reduction and Extension of the Commitments.
(a)Scheduled Termination. Unless previously terminated, the Commitments
shall terminate on the Maturity Date.
Credit Agreement
46
ny-2788047 |
(b)Voluntary Termination or Reduction. The Parent Borrower may at any
time terminate or reduce the Commitments in whole or in part; provided that (i) each reduction
of the Commitments (other than a reduction required by clause (ii) of this Section 2.07(b)) shall
be in an amount that is an integral multiple of $1,000,000 and not less than $20,000,000, (ii)
within thirty (30) days after the occurrence of an Exclusion Event, the Parent Borrower may
cancel a portion of the Commitments equal to the Exclusion Amount, (iii) the Parent Borrower
shall not terminate or reduce the Commitments if, after giving effect to any concurrent
prepayment of the Loans in accordance with Section 2.09, (A) any Lender’s Revolving Credit
Exposure would exceed its Commitment of (B) the sum of the Total Revolving Credit Exposure
would exceed the total Available Commitment and (iv) terminations and/or reductions may not
be made more than one (1) time in any given calendar quarter (except as may be agreed by the
Administrative Agent).
(c)Notice of Voluntary Termination or Reduction. The Parent Borrower shall
notify the Administrative Agent of any election to terminate or reduce the Commitments under
Section 2.07(b) at least three (3) Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly following receipt of
any notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each
notice delivered by the Parent Borrower pursuant to this Section 2.07 shall be irrevocable;
provided that a notice of termination of the Commitments delivered by the Parent Borrower may
state that such notice is conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Parent Borrower (by notice from the Parent Borrower to the
Administrative Agent on or prior to the specified effective date) if such condition is not satisfied.
(d)Effect of Termination or Reduction. Any termination or reduction of the
Commitments pursuant to this Section 2.07 shall be permanent. Each reduction of the
Commitments shall be made ratably among the Lenders in accordance with their respective
Commitments.
(e)Uncommitted Extension of Maturity Date. Subject to the provisions of this
Section 2.07(e), the Parent Borrower shall have the option to extend the date set forth in clause
(a) of the definition of “Maturity Date” to May 26, 2026, subject to the satisfaction of each of the
following conditions:
(i)The Parent Borrower shall notify the Administrative Agent of its
exercise of the extension option at least thirty (30) days, but not more than ninety (90)
days prior to the originally scheduled Maturity Date;
(ii)Each Lender and the Administrative Agent, each acting in its sole
discretion, shall have consented to such proposed extension; provided that the
Administrative Agent shall not unreasonably withhold its consent pursuant to this clause
(ii);
(iii)No Default or Event of Default shall have occurred and be
continuing at the time of giving such notice pursuant to clause (i) of this Section 2.07(e)
or on the originally scheduled Maturity Date;
(iv)The representations and warranties made by each of the Loan
Parties in the Loan Documents shall have been true and correct in all material respects
when made and shall also be true and correct in all material respects on the originally
scheduled Maturity Date; provided, that, to the extent such representations and warranties
were made as of a specific date, the same shall continue on and as of the then scheduled
Maturity Date, to be true and correct in all material respects as of such specific date;
Credit Agreement
47
ny-2788047 |
(v)The Subscription Obligations shall be available to be called to
repay the Obligations for at least forty-five (45) days beyond the proposed extended
Maturity Date;
(vi)The Parent Borrower shall have delivered a Borrowing Base
Certificate dated no earlier than ten (10) days prior to the date of the proposed extension;
(vii)At the time of the exercise of the extension hereunder, the Parent
Borrower shall pay to the Administrative Agent (for the benefit of the Lenders) a non-
refundable extension fee in an amount to be agreed at the time of such extension; and
(viii)The Parent Borrower shall have paid all reasonable out-of-pocket
costs and expenses incurred by the Administrative Agent and all reasonable fees and
expenses paid to third party consultants (including reasonable attorneys’ fees and
expenses) by the Administrative Agent in connection with such extension.
Section 2.08Repayment of Loans; Evidence of Debt.
(a)Repayment. Each Borrower, jointly and severally, hereby unconditionally
promises to pay to the Administrative Agent for the account of the Lenders the outstanding
principal amount of the Loans made to each Borrower, together with all other outstanding
Obligations, on the first to occur of (i) the Maturity Date or (ii) twelve (12) months from the date
that such Loan was initially made (i.e. disregarding any continuations or conversions with
respect to such Loan) (or such shorter time as may be required by the Operating Agreement or
any Side Letter) and, in the case of a required repayment pursuant to clause (ii), such Loan must
be repaid from the Borrowers’ available cash (which may include Subscription Payments or
Investment proceeds) and not from the proceeds of another Borrowing.
(b)Manner of Payment. Prior to any repayment or prepayment of any
Borrowings hereunder, each Borrower shall select the Borrowing or Borrowings to be paid and
shall notify the Administrative Agent by either electronic mail or telephone (confirmed by
telecopy or electronic mail) of such selection not later than 12:00 p.m., New York City time, two
(2) Business Days before the scheduled date of such repayment in the case of a Term Benchmark
Borrowing and one (1) Business Day before the scheduled date of such repayment in the case of
an ABR or RFR Borrowing; provided that each repayment of Borrowings shall be applied to
repay any outstanding ABR Borrowings of such Borrower before any other Borrowings of such
Borrower. Each payment of a Borrowing shall be applied ratably to the Loans included in such
Borrowing. If the due date of any payment under this Agreement or any other Loan Document
would otherwise fall on a date that is not a Business Day, then such due 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.
(c)Maintenance of Loan Accounts by Lenders. Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the indebtedness of the
Borrowers to such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such ▇▇▇▇▇▇ from time to time hereunder.
(d)Maintenance of Loan Accounts by the Administrative Agent. The
Administrative Agent shall maintain accounts in which it shall record (i) the amount of each
▇▇▇▇ made hereunder, the applicable Borrower, the Type thereof and each Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable or to become due
and payable from the Borrowers to each Lender hereunder and (iii) the amount of any sum
Credit Agreement
48
ny-2788047 |
received by the Administrative Agent ▇▇▇▇▇▇▇▇▇ for the account of the Lenders and each
▇▇▇▇▇▇’s share thereof.
(e)Effect of Entries. The entries made in the accounts maintained pursuant to
Section 2.08(c) or Section 2.08(d) shall be prima facie evidence of the existence and amounts of
the obligations recorded therein; provided that the failure of any Lender or the Administrative
Agent to maintain such accounts or any error therein shall not in any manner affect the
obligations of any Loan Party to repay the Loans in accordance with the terms of this Agreement.
(f)Promissory Notes. Any Lender may request that Loans made by it be
evidenced by a promissory note. In such event, each Borrower shall prepare, execute and deliver
to such Lender a promissory note payable to such Lender and its registered assigns and in the
form set forth in Exhibit A. Thereafter, the Loans evidenced by such promissory note and interest
thereon shall at all times (including after assignment pursuant to Section 10.04) be represented
by one or more promissory notes in such form payable to such payee and its registered assigns.
Section 2.09Prepayment of Loans.
(a)Optional Prepayments. Each Borrower shall have the right at any time and
from time to time to prepay any Borrowing in whole or in part, subject to the requirements of this
Section 2.09; provided that such Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy or other written electronic communication, including an Approved
Borrower Portal, if arrangements for doing so have been approved by the Administrative Agent)
of any optional prepayment hereunder (i) in the case of prepayment of (1) a Term Benchmark
Borrowing, not later than 12:00 p.m., New York City time, three (3) Business Days before the
date of prepayment or (2) an RFR Borrowing, if applicable, not later than 12:00 p.m., New York
City time, five (5) U.S. Government Securities Business Days before the date of prepayment, or
(ii) in the case of prepayment of an ABR Borrowing, not later than 12:00 p.m., New York City
time, one (1) Business Day before the date of prepayment. Each such notice shall be irrevocable
and shall specify the prepayment date and the principal amount of each Borrowing or portion
thereof to be prepaid; provided that, if a notice of prepayment is given in connection with a
conditional notice of termination of the Commitments as contemplated by Section 2.07, then
such notice of prepayment may be revoked if such notice of termination is revoked in accordance
with Section 2.07. Promptly following receipt of any such notice relating to a Borrowing, the
Administrative Agent shall advise the Lenders of the contents thereof. Each partial prepayment
of any Borrowing shall be in an amount that would be permitted in the case of a Borrowing of
the same Type as provided in Section 2.02, except as necessary to apply fully the required
amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to
the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by (A) accrued
interest to the extent required by Section 2.11 and (B) any payments due pursuant to Section
2.14, and shall be made in the manner specified in Section 2.08(b).
(b)Mandatory Prepayments.
(i)Available Commitment. If, on any day (a “Prepayment Trigger
Date”), the Revolving Credit Exposure with respect to the Borrowers exceeds the
Available Commitment, including as a result of an Exclusion Event, then the Parent
Borrower and/or the Subsidiary Borrowers shall promptly upon request (A) pay such
excess to the Administrative Agent, for the benefit of the Lenders, in immediately
available funds and/or (B) provide cover for LC Exposure as specified in Section 2.04(k)
in such amounts so that the Revolving Credit Exposure does not exceed the Available
Commitment, in either case (1) promptly and in any event within two (2) Business Days
after the applicable Prepayment Trigger Date to the extent that funds are available in the
Credit Agreement
49
ny-2788047 |
Subscription Account, and (2) within fifteen (15) Business Days after the applicable
Prepayment Trigger Date to the extent that it is necessary for the Parent Borrower to issue
Subscription Demand Notices for Subscription Payments by Investors to fund such
required prepayments or reimbursements (or deposit of cash collateral for any remaining
Obligations); provided that the amount of such excess shall be prepaid in respect of
Loans and LC Disbursements (or deposited as cash collateral for remaining Obligations)
concurrently with the creation of such excess if such excess results from any reduction of
the Available Commitment as a result of (x) any act(s) taken at the election of any Loan
Party, (y) any prepayments required by the terms of Section 6.12(b). Amounts to be
applied pursuant to this paragraph to the partial prepayment of Loans shall be applied
first to reduce outstanding ABR Loans.
(ii)Other Mandatory Prepayments. Each Borrower shall pay any of its
applicable Loans (and provide cover for LC Exposure as specified in Section 2.04(k))
upon the occurrence of any of the following events:
(A)the Maturity Date,
(B)the transfer, voluntarily, involuntarily, by operation of law
or otherwise, of any Equity Interest in the Management Company by Principal
Financial Group, Inc., without the prior written consent of the Administrative
Agent and the Required Lenders, in their sole and absolute discretion, other than
to a Related Party of the Management Company;
(C)the termination of the Management Agreement or a
dissolution of the Management Company pursuant to its Constituent Documents;
(D)a Subsidiary Borrower shall cease to be a Majority-Owned
Subsidiary of the Parent Borrower; provided that, in connection with this Section
2.09(b)(ii)(D) only the respective Subsidiary Borrower will be required to pay its
applicable Loans (and provide cover for any applicable LC Exposure); or
(E)upon an acceleration of the Loans upon an Event of Default
as provided in Section 7.01.
Each such mandatory prepayment shall be applied ratably to the Loans included in the prepaid
Borrowing. Prepayments shall be accompanied by (A) accrued interest to the extent required by
Section 2.11 and (B) any payments due pursuant to Section 2.14, and shall be made in the
manner specified in Section 2.08(b).
Section 2.10Fees.
(a)Commitment Fee. On each Quarterly Date and the Maturity Date, each
▇▇▇▇▇▇▇▇ agrees to pay to the Administrative Agent for the account of each Lender such
Borrower’s share of a commitment fee, which shall be equal to the product of (i) the daily
unused amount of the Commitment of such Lender with respect to all Borrowers during the
calendar quarter in which such Quarterly Date or Maturity Date falls and (ii) a rate per annum of
(x) 0.35% at any time that the aggregate principal unused amount of the Maximum Loan Amount
is greater than fifty percent (50%) or (y) 0.25% at any time that the aggregate principal unused
amount of the Maximum Loan Amount is equal to or less than fifty percent (50%). All
commitment fees shall be computed on the basis of a year of three hundred sixty (360) days,
shall be calculated on a daily basis and shall be payable for the actual number of days elapsed
Credit Agreement
50
ny-2788047 |
(including the first day and the last day of each period but excluding the date on which the
Commitments terminate). For purposes of computing commitment fees, the Commitment of a
Lender shall be deemed to be used to the extent of the outstanding Loans and LC Exposure of
such Lender.
(b)Letter of Credit Fees. Each Borrower, jointly and severally, agrees to pay
(i) to the Administrative Agent for the account of each Lender a participation fee with respect to
its participations in each outstanding Letter of Credit issued for such ▇▇▇▇▇▇▇▇’s account, which
shall accrue on the daily maximum amount then available to be drawn under such Letter of
Credit, which shall accrue at a rate per annum equal to the sum of (x) the same Applicable Rate
used to determine the interest rate applicable to Term Benchmark Loans plus (y) 0.10% (plus
two percent (2%) during the continuance of an Event of Default) on the average daily maximum
amount then available to be drawn under such Letter of Credit (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date on which the such ▇▇▇▇▇▇’s Commitment
terminates and the date on which such Lender ceases to have any LC Exposure, and (ii) to the
Issuing Bank for its own account a fronting fee with respect to each Letter of Credit issued by
such Issuing Bank, which shall accrue at the rate or rates per annum separately agreed upon
between the Borrowers and such Issuing Bank on the daily maximum amount then available to
be drawn under such Letter of Credit with respect to such Borrower during the period from and
including the Effective Date to but excluding the later of the date of termination of the
Commitments and the date on which there ceases to be any LC Exposure, as well as the Issuing
Bank’s standard fees with respect to the issuance, amendment or extension of any Letter of
Credit and other processing fees, and other standard costs and charges, of the Issuing Bank
relating to the Letters of Credit as from time to time in effect. Participation fees and fronting fees
accrued through and including each Quarterly Date shall be payable on such Quarterly Date,
commencing on the first such date to occur after the Effective Date; provided that all such fees
shall be payable on the date on which the Commitments terminate and any such fees accruing
after the date on which the Commitments terminate shall be payable on demand. Any other fees
payable to the Issuing Bank pursuant to this Section 2.10(b) shall be payable within fifteen (15)
days after demand. All participation fees and fronting fees shall be computed on the basis of a
year of three hundred sixty (360) days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(c)Administrative Agent Fees. The Borrowers agree to pay to the
Administrative Agent, for its own account, fees payable in the amounts and at the times
separately agreed upon between the Borrowers and the Administrative Agent.
(d)Payment of Fees. All fees payable hereunder shall be paid on the dates
due, in Dollars in immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable to it) for distribution, in the case of facility fees and
participation fees, to the Lenders entitled thereto. Fees paid shall not be refundable under any
circumstances.
Section 2.11Interest.
(a)The Loans comprising each ABR shall bear interest at the Alternate Base
Rate plus the Applicable Rate.
(b)The Loans comprising each Term Benchmark Borrowing shall bear
interest at the Adjusted Term SOFR Rate for the Interest Period in effect for such Borrowing
plus the Applicable Rate.
Credit Agreement
51
ny-2788047 |
(c)If applicable, the Loans comprising each RFR Borrowing shall bear
interest at Adjusted Daily Simple SOFR Rate in effect for such Borrowing plus the Applicable
Rate.
(d)Notwithstanding the foregoing, if any principal of or interest on any Loan
or any fee or other amount payable by the Borrowers hereunder is not paid when due, whether at
stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as
well as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any
Loan, 2% plus the rate otherwise applicable to such Loan as provided in the preceding
paragraphs of this Section or (ii) in the case of any other amount, 2% plus the rate applicable to
ABR Loans as provided in paragraph (a) of this Section.
(e)Accrued and unpaid interest on the outstanding balance of each Loan shall
be calculated from and including the first day of each month (or in the case of the first interest
accrual period of a Loan, the initial Borrowing date of such Loan) through and including the last
day of such month and shall be payable in arrears on each Interest Payment Date for each
succeeding calendar month and upon termination of the Commitments; provided that (i) interest
accrued pursuant to paragraph (d) of this Section shall be payable on demand, (ii) in the event of
any repayment or prepayment of any Loan, accrued interest on the principal amount repaid or
prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of
any conversion of any Term Benchmark Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.
(f)All interest hereunder will be computed on the basis of a year of 360 days
and shall be payable for the actual number of days elapsed (including the first day but excluding
the last day). All interest hereunder on any Loan shall be computed on a daily basis based upon
the outstanding principal amount of such Loan as of the applicable date of determination. The
applicable rate of interest for any day shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
Section 2.12Alternate Rate of Interest.
(a)Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.12:
(i)the Administrative Agent determines (which determination shall be
conclusive absent manifest error) (A) prior to the commencement of any Interest Period
for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for
ascertaining the Adjusted Term SOFR Rate (including because the Term SOFR
Reference Rate is not available or published on a current basis), for such Interest Period
or (B) at any time, that adequate and reasonable means do not exist for ascertaining the
applicable Adjusted Daily Simple SOFR Rate; or
(ii)the Administrative Agent is advised by the Required Lenders that
(A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing,
the Adjusted Term SOFR Rate for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its
Loan) included in such Borrowing for such Interest Period or (B) at any time, the
Adjusted Daily Simple SOFR Rate will not adequately and fairly reflect the cost to such
Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such
Borrowing;
then the Administrative Agent shall give notice thereof to the Parent Borrower and the Lenders
by telephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the
Credit Agreement
52
ny-2788047 |
Administrative Agent notifies the Parent ▇▇▇▇▇▇▇▇ and the Lenders that the circumstances giving
rise to such notice no longer exist with respect to the relevant Benchmark and (y) a Borrower
delivers a new Interest Election Request in accordance with the terms of Section 2.06 or a new
Borrowing Request in accordance with the terms of Section 2.03, (1) any Interest Election
Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a
Term Benchmark Borrowing and any Borrowing Request that requests a Term Benchmark
Borrowing shall instead be deemed to be an Interest Election Request or a Borrowing Request, as
applicable, for (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR Rate is not
also the subject of Section 2.12(a)(i) or (ii) above or (y) an ABR Borrowing if the Adjusted Daily
Simple SOFR Rate also is the subject of Section 2.12(a)(i) or (ii) above and (2) if applicable any
Borrowing Request that requests an RFR Borrowing shall instead be deemed to be a Borrowing
Request, as applicable, for an ABR Borrowing; provided that if the circumstances giving rise to
such notice affect only one Type of Borrowings, then all other Types of Borrowings shall be
permitted. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date
of the Parent ▇▇▇▇▇▇▇▇’s receipt of the notice from the Administrative Agent referred to in this
Section 2.12(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan or
RFR Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark
and (y) a Borrower delivers a new Interest Election Request in accordance with the terms of
Section 2.06 or a new Borrowing Request in accordance with the terms of Section 2.03, (1) any
Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be
converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as
the Adjusted Daily Simple SOFR Rate is not also the subject of Section 2.12(a)(i) or (ii) above or
(y) an ABR Loan if the Adjusted Daily Simple SOFR Rate also is the subject of Section
2.12(a)(i) or (ii) above, on such day, and (2) any RFR Loan shall on and from such day be
converted by the Administrative Agent to, and shall constitute an ABR Loan.
(b)Notwithstanding anything to the contrary herein or in any other Loan
Document (and any Swap Agreement shall be deemed not to be a “Loan Document” for purposes
of this Section 2.12), if a Benchmark Transition Event and its related Benchmark Replacement
Date have occurred prior to the Reference Time in respect of any setting of the then-current
Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) of
the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such
Benchmark Replacement will replace such Benchmark (including any related adjustments) 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 (2) of the definition of “Benchmark Replacement” for
such Benchmark Replacement 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. (New York City time) on the fifth (5th) 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 Required Lenders.
(c)Notwithstanding anything to the contrary herein or in any other Loan
Document, the Administrative Agent will have the right to make Benchmark Replacement
Credit Agreement
53
ny-2788047 |
Conforming Changes from time to time and, notwithstanding anything to the contrary herein or
in any other Loan Document, any amendments implementing such Benchmark Replacement
Conforming Changes will become effective without any further action or consent of any other
party to this Agreement or any other Loan Document.
(d)The Administrative Agent will promptly notify the Parent Borrower and
the Lenders of (1) any occurrence of a Benchmark Transition Event, (2) the implementation of
any Benchmark Replacement, (3) the effectiveness of any Benchmark Replacement Conforming
Changes, (4) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (e)
below and (5) the commencement or conclusion of any Benchmark Unavailability Period. 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 2.12, 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 2.12.
(e)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), (i) if the then-current Benchmark is a term rate (including the Term SOFR Rate)
and either (A) 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 (B) 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 or will be no longer representative, then the Administrative Agent may modify the
definition of “Interest Period” for any Benchmark settings at or after such time to remove such
unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i)
above either (A) is subsequently displayed on a screen or information service for a Benchmark
(including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement
that it is or will no longer be representative for a Benchmark (including a Benchmark
Replacement), then the Administrative Agent may modify the definition of “Interest Period” for
all Benchmark settings at or after such time to reinstate such previously removed tenor.
(f)Upon the Parent ▇▇▇▇▇▇▇▇’s receipt of notice of the commencement of a
Benchmark Unavailability Period, a Borrower may revoke any request for (i) a Term Benchmark
Borrowing, conversion to or continuation of Term Benchmark Loans to be made, converted or
continued or (ii) if applicable, a RFR Borrowing or conversion to RFR Borrowings during any
Benchmark Unavailability Period and, failing that, the applicable Borrower will be deemed to
have converted any request for a Term Benchmark Borrowing or RFR Borrowing, as applicable,
into a request for a Borrowing of or conversion to (A) solely with respect to any request for a
Term Benchmark Borrowing, an RFR Borrowing so long as the Adjusted Daily Simple SOFR
Rate is not the subject of a Benchmark Transition Event or (B) an ABR Borrowing if the
Adjusted Daily Simple SOFR Rate is the subject of a Benchmark Transition Event. During any
Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is
not an Available Tenor, the component of ABR based upon the then-current Benchmark or such
tenor for such Benchmark, as applicable, will not be used in any determination of ABR.
Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the
▇▇▇▇▇▇▇▇’s receipt of notice of the commencement of a Benchmark Unavailability Period with
respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR Loan, then until
such time as a Benchmark Replacement is implemented pursuant to this Section 2.12, (1) any
Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan (or the
next succeeding Business Day if such day is not a Business Day), be converted by the
Credit Agreement
54
ny-2788047 |
Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted
Daily Simple SOFR Rate is not the subject of a Benchmark Transition Event or (y) an ABR Loan
if the Adjusted Daily Simple SOFR Rate is the subject of a Benchmark Transition Event, on such
day and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent
to, and shall constitute an ABR Loan.
Section 2.13Increased Costs.
(a)Increased Costs Generally. If any Change in Law shall:
(i)impose, modify or deem applicable any reserve, special deposit or
similar requirement (including any compulsory loan requirement, insurance charge or
other assessment) against assets of, deposits with or for the account of, or credit extended
by, any Lender or the Issuing Bank;
(ii)impose on any Lender or the Issuing Bank or the applicable
offshore interbank market any other condition, cost or expense (other than Taxes)
affecting this Agreement or Loans made by such Lender or any Letter of Credit or
participation therein; or
(iii)subject any Lender or the Issuing Bank to any Taxes (other than
(A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of
Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of
credit, commitments, or other obligations, or its deposits, reserves, other liabilities or
capital attributable thereto;
and the result of any of the foregoing shall be to increase the cost to such Lender or such other
Recipient of making, continuing, converting or maintaining any Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender, the Issuing Bank or
such other Recipient of participating in, issuing or maintaining any Letter of Credit or to reduce
the amount of any sum received or receivable by such Lender, such Issuing Bank or such other
Recipient hereunder (whether of principal, interest or otherwise), then the Borrowers will pay to
such Lender, the Issuing Bank or such other Recipient, as the case may be, such additional
amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as
the case may be, for such additional costs incurred or reduction suffered.
(b)Capital Requirements. If any Lender or the Issuing Bank determines that
any Change in Law regarding capital or liquidity requirements has or would have the effect of
reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of
such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this
Agreement or the Loans made by, or participations in Letters of Credit held by, such Lender, or
the Letters of Credit issued by the Issuing Bank, to a level below that which such Lender or the
Issuing Bank or such ▇▇▇▇▇▇’s or the Issuing Bank’s holding company could have achieved but
for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies
and the policies of such ▇▇▇▇▇▇’s or the Issuing Bank’s holding company with respect to capital
adequacy and liquidity), then from time to time the Borrowers will pay to such Lender or the
Issuing Bank, as the case may be, such additional amount or amounts as will compensate such
Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any
such reduction suffered.
Credit Agreement
55
ny-2788047 |
(c)Certificates from Lenders. A certificate of a Lender or the Issuing Bank
setting forth the amount or amounts necessary to compensate such Lender or the Issuing Bank or
its holding company, as the case may be, as specified in Section 2.13(a) or Section 2.13(b) shall
be delivered to the applicable Borrower and shall be conclusive absent manifest error. Such
Borrower shall pay such Lender or the Issuing Bank, as the case may be, the amount shown as
due on any such certificate within ten (10) days after receipt thereof.
(d)Delay in Requests. Failure or delay on the part of any Lender or the
Issuing Bank to demand compensation pursuant to this Section 2.13 shall not constitute a waiver
of such ▇▇▇▇▇▇’s or the Issuing Bank’s right to demand such compensation; provided that the
Borrowers shall not be required to compensate a Lender or the Issuing Bank pursuant to this
Section 2.13 for any increased costs or reductions incurred or Taxes incurred where a Lender or
Issuing Bank has, or has received , notice of the same more than two hundred seventy (270) days
prior to the date that such Lender or the Issuing Bank, as the case may be, notifies such Borrower
of the Change in Law giving rise to such increased costs or reductions or Taxes and of such
▇▇▇▇▇▇’s or the Issuing Bank’s intention to claim compensation therefor; provided further that, if
the Change in Law giving rise to such increased costs or reductions or Taxes is retroactive, then
the two hundred seventy (270) day period referred to above shall be extended to include the
period of retroactive effect thereof.
Section 2.14Break Funding Payments.
(a)With respect to Loans that are not RFR Loans, in the event of (i) the
payment of any principal of any Term Benchmark Loan other than on the last day of an Interest
Period applicable thereto (including as a result of an Event of Default or an optional or
mandatory prepayment of Loans), (ii) the conversion of any Term Benchmark Loan other than
on the last day of the Interest Period applicable thereto, (iii) the failure to borrow, convert,
continue or prepay any Term Benchmark Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice may be revoked under Section 2.09(b) and is
revoked in accordance therewith) or (iv) the assignment of any Term Benchmark Loan other than
on the last day of the Interest Period applicable thereto as a result of a request by the Parent
Borrower pursuant to Section 2.17, then, in any such event, the Borrowers shall compensate each
Lender for the loss, cost and expense attributable to such event; provided that, for the avoidance
of doubt, such loss, cost and expense shall not be deemed to include the Applicable Rate spread
that would have otherwise accrued on a Loan following the date of occurrence of any action
described in the foregoing clauses (i), (ii), (iii) or (iv) if such action had not occurred, but without
prejudice to the provisions of Section 2.11 governing payment of accrued interest on any
outstanding Loan. A certificate of any Lender setting forth any amount or amounts that such
Lender is entitled to receive pursuant to this Section shall be delivered to the Parent Borrower
and shall be conclusive absent manifest error. The Borrowers shall pay such Lender the amount
shown as due on any such certificate within fifteen (15) Business Days after receipt thereof.
(b)With respect to RFR Loans, in the event of (i) the payment of any
principal of any RFR Loan other than on the Interest Payment Date applicable thereto (including
as a result of an Event of Default or an optional or mandatory prepayment of Loans), (ii) the
failure to borrow or prepay any RFR Loan on the date specified in any notice delivered pursuant
hereto (regardless of whether such notice may be revoked under Section 2.09(b) and is revoked
in accordance therewith) or (iii) the assignment of any RFR Loan other than on the Interest
Payment Date applicable thereto as a result of a request by the Borrower pursuant to Section
2.17, then, in any such event, the Borrowers shall compensate each Lender for the loss, cost and
expense attributable to such event; provided that, for the avoidance of doubt, such loss, cost and
expense shall not be deemed to include the Applicable Rate spread that would have otherwise
accrued on a Loan following the date of occurrence of any action described in the foregoing
Credit Agreement
56
ny-2788047 |
clauses (i), (ii) or (iii) if such action had not occurred, but without prejudice to the provisions of
Section 2.11 governing payment of accrued interest on any outstanding Loan. A certificate of
any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant
to this Section shall be delivered to the Parent Borrower and shall be conclusive absent manifest
error. The Borrowers shall pay such Lender the amount shown as due on any such certificate
within fifteen (15) Business Days after receipt thereof.
Section 2.15Withholding of Taxes; Gross-Up.
(a)Payments Free of Taxes. Any and all payments by or on account of any
obligation of any Loan Party under any Loan Document shall be made without deduction or
withholding for any Taxes, except as required by applicable law. If any applicable law (as
determined in the good faith discretion of an applicable withholding agent) requires the
deduction or withholding of any Tax from any such payment by a withholding agent, then the
applicable withholding agent shall be entitled to make such deduction or withholding and shall
timely pay the full amount deducted or withheld to the relevant Governmental Authority in
accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by
the applicable Borrower shall be increased as necessary so that after such deduction or
withholding has been made (including such deductions and withholdings applicable to additional
sums payable under this Section 2.15) the applicable Recipient receives an amount equal to the
sum it would have received had no such deduction or withholding been made.
(b)Payment of Other Taxes by the Borrowers. In addition, the Borrowers
shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at
the option of the Administrative Agent timely reimburse it for, Other Taxes.
(c)Indemnification by the Borrowers. The Borrowers shall indemnify each
Recipient, within fifteen (15) days after demand therefor, for the full amount of any Indemnified
Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable
under this Section 2.15) 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 Parent 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.
(d)Evidence of Payments. As soon as practicable after any payment of Taxes
by any Borrower to a Governmental Authority pursuant to this Section 2.15, such Borrower 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.
(e)Indemnification by the Lenders. Each Lender shall severally indemnify the
Administrative Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes
attributable to such Lender (but only to the extent that any Borrower has not already indemnified
the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the
Borrowers to do so), (ii) any Taxes attributable to such ▇▇▇▇▇▇’s failure to comply with the
provisions of Section 10.04(c) relating to the maintenance of a Participant Register and (iii) any
Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the
Administrative Agent in connection with any Loan Document, and any reasonable expenses
arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of
Credit Agreement
57
ny-2788047 |
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
setoff 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 Section 2.15(e).
(f)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 Borrowers and the Administrative Agent, at the time or times reasonably requested
by the Borrowers or the Administrative Agent, such properly completed and executed
documentation reasonably requested by the Borrowers 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 Borrowers or the
Administrative Agent, shall deliver such other documentation prescribed by applicable
law or reasonably requested by the Borrowers or the Administrative Agent as will enable
the Borrowers 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 clauses
(ii)(A), (ii)(B), (ii)(D) and (iv) of this Section 2.15(f)) shall not be required if in such
▇▇▇▇▇▇’s reasonable judgment such completion, execution or submission would subject
such Lender to any material unreimbursed cost or expense or would materially prejudice
the legal or commercial position of such Lender.
(ii)Without limiting the generality of the foregoing,
(A)any Lender that is a U.S. Person shall deliver to the
Borrowers and the Administrative Agent on or prior to the date on which such
▇▇▇▇▇▇ becomes a Lender under this Agreement (and from time to time thereafter
upon the reasonable request of the Borrowers or the Administrative Agent),
executed copies of IRS Form W-9 certifying that such Lender is exempt from
U.S. federal backup withholding tax;
(B)any Foreign Lender shall, to the extent it is legally entitled
to do so, deliver to the Borrowers 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 Borrowers or the
Administrative Agent), whichever of the following is applicable:
(1)in the case of a Foreign ▇▇▇▇▇▇ claiming the
benefits of an income tax treaty to which the United States is a party (x)
with respect to payments of interest under any Loan Document, executed
copies of IRS Form W-8BEN-E or IRS Form W-8BEN 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-E or
IRS Form W-8BEN 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;
Credit Agreement
58
ny-2788047 |
(2)in the case of a Foreign Lender claiming that its
extension of credit will generate U.S. effectively connected income,
executed copies of IRS Form W-8ECI;
(3)in the case of a Foreign ▇▇▇▇▇▇ claiming the
benefits of the exemption for portfolio interest under Section 881(c) of the
Code, (x) a certificate substantially in the form of Exhibit L-1 to the effect
that such Foreign Lender is not a “bank” within the meaning of Section
881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower
within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled
foreign corporation” described in Section 881(c)(3)(C) of the Code (a
“U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form
W-8BEN-E or IRS Form W-8BEN; or
(4)to the extent a Foreign Lender is not the beneficial
owner, executed copy of IRS Form W-8IMY, accompanied by IRS Form
W-8ECI, IRS Form W-8BEN-E, IRS Form W-8BEN, a U.S. Tax
Compliance Certificate substantially in the form of Exhibit L-2 or Exhibit
L-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 L-4 on behalf of each such direct and indirect partner;
(C)any Foreign Lender shall, to the extent it is legally entitled
to do so, deliver to the Borrowers 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 Borrowers or the
Administrative Agent), executed copies of any other form prescribed by
applicable law as a basis for claiming exemption from or a reduction in U.S.
federal withholding Tax, duly completed, together with such supplementary
documentation as may be prescribed by applicable law to permit the Borrowers 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 Code, as applicable), such Recipient shall deliver to the Borrowers and the
Administrative Agent at the time or times prescribed by law and at such time or
times reasonably requested by the Borrowers or the Administrative Agent such
documentation prescribed by applicable law (including as prescribed by Section
1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably
requested by the Borrowers or the Administrative Agent as may be necessary for
the Parent 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 Section
2.15(f)(ii)(D), “FATCA” shall include any amendments made to FATCA after the
Effective Date.
Credit Agreement
59
ny-2788047 |
(iii)If the Administrative Agent is a U.S. Person, then it shall, on or
prior to the Effective Date (or, in the case of a successor Administrative Agent, on or
before the date on which it becomes Administrative Agent, co-agent or sub-agent
hereunder), provide the Parent Borrower with a properly completed and duly executed
copy of IRS Form W-9 confirming that the Administrative Agent is exempt from U.S.
federal backup withholding. If the Administrative Agent is not a U.S. Person, then it
shall, on or prior to the Effective Date (or, in the case of a successor Administrative
Agent, on or before the date on which it becomes the Administrative Agent, co-agent or
sub-agent ▇▇▇▇▇▇▇▇▇), provide the Parent Borrower with, (A) with respect to payments
made to the Administrative Agent for its own account, a properly completed and duly
executed IRS Form W-8ECI (or other applicable IRS Form W-8 claiming an exemption
from U.S. withholding tax), and (B) with respect to payments made to the Administrative
Agent on behalf of any Lender, two properly completed and executed copies of IRS Form
W-8IMY (or any successor form) certifying that the Administrative Agent is either (1) a
“qualified intermediary” which has assumed primary withholding responsibility under
Chapters 3 and 4 of the Code and primary Form 1099 reporting and backup withholding
responsibility, or (2) a U.S. branch providing such form as evidence of its agreement with
the Borrowers to be treated as a “U.S. person” for U.S. federal withholding Tax purposes
(as contemplated by Section 1.1441-1(b)(2)(iv)(A) of the United States Treasury
Regulations) and that the payments it receives for the account of such Lenders are not
effectively connected with the conduct of its trade or business in the United States. If
any form or certification the Administrative Agent previously delivered expires or
becomes obsolete or inaccurate in any respect, it will promptly update such form or
certification.
(iv)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 Borrowers and the Administrative Agent in
writing of its legal inability to do so.
(g)Treatment of Certain Refunds. If any party determines, in its sole
discretion exercised in good faith, that it has received a refund of any Taxes as to which it has
been indemnified pursuant to this Section 2.15 (including by the payment of additional amounts
pursuant to this Section 2.15), it shall pay to the indemnifying party an amount equal to such
refund (but only to the extent of indemnity payments made under this Section 2.15 with respect
to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of
such indemnified party and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund). Such indemnifying party, upon the request
of such indemnified party, shall repay to such indemnified party the amount paid over pursuant
to this Section 2.15(g) (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) in the event that such indemnified party is required to repay such
refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section
2.15(g), in no event will the indemnified party be required to pay any amount to an indemnifying
party pursuant to this Section 2.15(g) the payment of which would place the indemnified party in
a less favorable net after-Tax position than the indemnified party would have been in if the Tax
subject to indemnification and giving rise to such refund had not been deducted, withheld or
otherwise imposed and the indemnification payments or additional amounts giving rise to such
refund had never been paid. This Section 2.15(g) shall not be construed to require any
indemnified party to make available its Tax returns (or any other information relating to its Taxes
that it deems confidential) to the indemnifying party or any other Person.
(h)Survival. Each party’s obligations under this Section 2.15 shall survive the
resignation or replacement of the Administrative Agent or any assignment of rights by, or the
Credit Agreement
60
ny-2788047 |
replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or
discharge of all obligations under any Loan Document.
(i)Issuing Bank. For purposes of this Section 2.15, the term “Lender”
includes any Issuing Bank and the term “applicable law” includes FATCA.
Section 2.16Payments Generally; Pro Rata Treatment; Sharing of Setoffs.
(a)Payments by the Borrowers. Each Borrower shall make each payment or
prepayment required to be made by it hereunder (whether of principal, interest, fees or
reimbursement of LC Disbursements, or under Section 2.13, Section 2.14 or Section 2.15, or
otherwise) or under any other Loan Document (except to the extent otherwise provided therein)
prior to 1:00 p.m., New York City time, on the date when due or the date fixed for any
prepayment hereunder, in immediately available funds, without setoff, recoupment or
counterclaim; provided that if a new Loan is to be made by any Lender on a date the applicable
Borrower is to repay any principal of an outstanding Loan of such Lender, such Lender shall
apply the proceeds of such new Loan to the payment of the principal to be repaid and only an
amount equal to the difference between the principal to be borrowed and the principal to be
repaid shall be made available by such Lender to the Administrative Agent as provided in
Section 2.05 or paid by the applicable Borrower to the Administrative Agent pursuant to this
Section 2.16(a), as the case may be. Any amounts received after such time on any date may, in
the discretion of the Administrative Agent, be deemed to have been received on the next
succeeding Business Day for purposes of calculating interest thereon. All such payments shall be
made to the Administrative Agent at the Administrative Agent’s Account, except as otherwise
expressly provided in the relevant Loan Document, and except payments to be made directly to
the Issuing Bank as expressly provided herein and except that payments pursuant to Section 2.13,
Section 2.14, Section 2.15 and Section 10.03 shall be made directly to the Persons entitled
thereto. The Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following receipt thereof. If
any payment hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such extension. All payments
hereunder or under any other Loan Document (except to the extent otherwise provided therein)
shall be made in Dollars.
(b)Application of Insufficient Payments. At any time that payments are not
required to be applied in the manner required by Section 7.03, if at any time insufficient funds
are received by and available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be
applied (i) first, towards payment of interest and fees then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of interest and fees then due to such
parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then
due hereunder, ratably among the parties entitled thereto in accordance with the amounts of
principal and unreimbursed LC Disbursements then due to such parties.
(c)Pro Rata Treatment. Except to the extent otherwise provided herein: (i)
each Borrowing shall be made from the Lenders, each payment of commitment fee under Section
2.10 shall be made for the account of the Lenders, and each termination or reduction of the
amount of the Commitments under Section 2.07 shall be applied to the respective Commitments
of the Lenders, pro rata according to the amounts of their respective Commitments; (ii) each
Borrowing shall be allocated pro rata among the Lenders according to the amounts of their
respective Commitments (in the case of the making of Loans) or their respective Loans (in the
case of conversions and continuations of Loans); (iii) each payment or prepayment of principal
Credit Agreement
61
ny-2788047 |
of Loans by a Borrower shall be made for the account of the Lenders pro rata in accordance with
the respective unpaid principal amounts of the Loans held by them; and (iv) each payment of
interest on Loans by a Borrower shall be made for the account of the Lenders pro rata in
accordance with the amounts of interest on such Loans then due and payable to the respective
Lenders.
(d)Sharing of Payments by ▇▇▇▇▇▇▇. If any Lender shall, by exercising any
right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans or participations in LC Disbursements resulting in such Lender
receiving payment of a greater proportion of the aggregate amount of its Loans and participations
in LC Disbursements and accrued interest thereon then due than the proportion received by any
other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face
value) participations in the Loans and participations in LC Disbursements of other Lenders to the
extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on their respective
Loans and participations in LC Disbursements; provided that (i) if any such participations are
purchased and all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent of such recovery,
without interest, and (ii) the provisions of this Section 2.16(d) shall not be construed to apply to
any payment made by a Borrower pursuant to and in accordance with the express terms of this
Agreement (including the application of funds arising from the existence of a Defaulting Lender
or Disqualified Institution) or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations in LC Disbursements
to any assignee or participant, other than to a Borrower or any Subsidiary or Affiliate thereof (as
to which the provisions of this Section 2.16(d) shall apply). Each Borrower consents to the
foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise against such
Borrower rights of setoff and counterclaim with respect to such participation as fully as if such
Lender were a direct creditor of such Borrower in the amount of such participation.
(e)Presumptions of Payment. Unless the Administrative Agent shall have
received, prior to the date on which any payment is due to the Administrative Agent for the
account of the Lenders or the Issuing Bank pursuant to the terms of this Agreement or any other
Loan Document (including any date that is fixed for prepayment by notice from a Borrower to
the Administrative Agent pursuant to Section 2.09(b)), notice from a Borrower that such
Borrower will not make such payment or prepayment, the Administrative Agent may assume that
such Borrower has made such payment on such date in accordance herewith and may, in reliance
upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the
amount due. In such event, if a Borrower has not in fact made such payment, then each of the
Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative
Agent forthwith on demand the amount so distributed to such Lender or the 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 NYFRB Rate
and a rate determined by the Administrative Agent in accordance the banking industry rules on
interbank compensation.
(f)Certain Deductions by the Administrative Agent. If any Lender shall fail
to make any payment required to be made by it pursuant to Section 2.04(e), Section 2.04(f),
Section 2.05(b) or Section 2.16(e), then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under
such Sections until all such unsatisfied obligations are fully paid.
Credit Agreement
62
ny-2788047 |
Section 2.17Mitigation Obligations; Replacement of Lenders.
(a)Designation of a Different Lending Office. If any Lender requests
compensation under Section 2.13, or if any Borrower is required to pay any Indemnified Taxes
or additional amounts to any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 2.15, then such Lender shall use reasonable efforts to designate a
different lending office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such
Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant
to Section 2.13 or Section 2.15, as the case may be, in the future and (ii) would not subject such
Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender. Each Borrower hereby agrees to pay all reasonable costs and expenses incurred by any
Lender in connection with any such designation or assignment.
(b)Replacement of Lenders. If any Lender requests compensation under
Section 2.13, or if a Borrower is required to pay any Indemnified Taxes or additional amounts to
any Lender or any Governmental Authority for the account of any Lender pursuant to Section
2.15 and, in each case, such Lender has declined or is unable to designate a different lending
office in accordance with Section 2.17(a), or if any Lender becomes Defaulting Lender, then the
Parent Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in Section 10.04), all its interests, rights
(other than its existing rights to payments pursuant to Section 2.13 or Section 2.15) and
obligations under this Agreement and the other Loan Documents to an assignee that shall assume
such obligations (which assignee may be another Lender, if a ▇▇▇▇▇▇ accepts such assignment);
provided that (i) the Parent Borrower shall have received the prior written consent of the
Administrative Agent (and if a Commitment is being assigned, the Issuing Bank), which consent
shall not unreasonably be withheld, (ii) such Lender shall have received payment of an amount
equal to the outstanding principal of its Loans and participations in LC Disbursements, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to
the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the
case of all other amounts) and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.13 or payments required to be made pursuant to Section 2.15, such
assignment will result in a reduction in such compensation or payments. A Lender shall not be
required to make any such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Parent Borrower to require such
assignment and delegation cease to apply. Each party hereto agrees that (x) an assignment
required pursuant to this Section 2.17(b) may be effected pursuant to an Assignment and
Assumption executed by the Borrowers, the Administrative Agent and the assignee (or, to the
extent applicable, an agreement incorporating an Assignment and Assumption by reference
pursuant to an Approved Electronic Platform as to which the Administrative Agent and such
parties are participants), and (y) the Lender required to make such assignment need not be a party
thereto in order for such assignment to be effective and shall be deemed to have consented to an
be bound by the terms thereof; provided that, following the effectiveness of any such assignment,
the other parties to such assignment agree to execute and deliver such documents necessary to
evidence such assignment as reasonably requested by the applicable Lender, provided that any
such documents shall be without recourse to or warranty by the parties thereto.
Section 2.18Use of Proceeds. Each Borrower shall use the proceeds of the Loans and
Letters of Credit solely for such uses as are expressly permitted by such ▇▇▇▇▇▇▇▇’s Constituent
Documents (collectively, “Approved Uses”), all in accordance with, and subject to the
limitations and restrictions contained in, such ▇▇▇▇▇▇▇▇’s Constituent Documents.
Credit Agreement
63
ny-2788047 |
Section 2.19Status of Included Investors; Mandatory Reduction of Available
Commitment.
(a)Loss of Included Investor Status. An Included Investor shall cease to be an
Included Investor upon the occurrence of any one of the following events (each, an “Exclusion
Event”):
(i)the Investor or any related Subscription Support Obligor shall
commence a voluntary case or other proceeding seeking liquidation, reorganization or
other relief with respect to itself or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of its property, or
shall consent to any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it, or shall make a
general assignment for the benefit of creditors, or shall fail generally or admit in writing
that it is unable to pay its debts as they become due;
(ii)an involuntary case or other proceeding shall be commenced
against the Investor or any such Subscription Support Obligor seeking liquidation,
reorganization or other relief with respect to it or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official in respect of it or any
substantial part of its property; or an order for relief shall be entered against it under the
federal bankruptcy laws as now or hereafter in effect; provided that, solely with respect to
existing Loans or Letters of Credit (and not for any new Borrowing or Letter of Credit),
an Exclusion Event under this clause (ii) shall not be deemed to occur unless such order,
judgment or decree shall continue unstayed and in effect for a period of sixty (60) days;
(iii)the Investor or any such Subscription Support Obligor (A) shall
fail to timely fund a Subscription Call subject to any notice and time to cure in
accordance with the terms of its Subscription Agreement or the Constituent Documents
of the Parent Borrower (but such notice and cure period not to exceed fifteen (15) days
from the date originally due), (B) shall repudiate, challenge or declare unenforceable to
any extent its obligation to pay its Subscription Obligations, or to fulfill its Rated Entity
Guaranty or other supporting obligations in respect of the Investor’s Subscription
Obligation, as applicable or (C) shall otherwise disaffirm, default under or breach its
Subscription Agreement, its Investor Acknowledgment, the Constituent Documents of the
Parent Borrower, or any Rated Entity Guaranty or other supporting obligation in respect
of the Investor’s Subscription Obligation, subject to any applicable notice and time to
cure in accordance with the terms thereof (but such notice and cure period not to exceed
fifteen (15) days from the date originally due); provided that, if any repudiation, release,
discharge or excuse is only in respect of a portion of such Investor’s Subscription
Obligation, only such portion shall be excluded from the Available Commitment, and if
such repudiation, release, discharge or excuse is only in respect of a particular investment
being made by the Borrowers, the exclusion from the Available Commitments shall be
only for Loans being made to fund such investment;
(iv)one or more final, non-appealable judgments or decrees in an
aggregate amount equal to fifteen percent (15%) or more of the net worth (measured as of
the date of its initial designation as an Included Investor, as applicable) of such Investor
or, if applicable, the related Subscription Support Obligor, shall be entered by a court or
courts of competent jurisdiction against such Investor or any such Subscription Support
Obligor and (i) any such judgment or decree shall not be discharged, paid, bonded or
Credit Agreement
64
ny-2788047 |
vacated within thirty (30) days of issuance or (ii) enforcement proceedings shall be
commenced by any creditor on any such judgment or decree and such judgment or decree
shall not otherwise be covered by insurance in an amount that would cause any uninsured
potential liability not to exceed fifteen percent (15%) of the net worth of such Investor or
Subscription Support Obligor;
(v)any representation, warranty, certification or statement made by
the Investor or any such Subscription Support Obligor in any Investor Acknowledgment,
any Subscription Agreement or in any Rated Entity Guaranty, security agreement,
certificate, financial statement or other document delivered pursuant to this Agreement or
such documents shall have been false or misleading in any material respect when made;
(vi)in the case of a Included Investor that is not a Rated Entity, any
event shall occur which materially adversely affects, in the reasonable discretion of the
Administrative Agent, the ability or liability of the Investor or any such Subscription
Support Obligor to fulfill its obligations under or in respect of any Subscription
Agreement, any Investor Acknowledgment or any Constituent Document of the Parent
Borrower, or the ability or liability of such Subscription Support Obligor to fulfill any
Rated Entity Guaranty or other supporting obligations in respect of such Investor’s
Subscription Obligation;
(vii)the Investor or any Subscription Support Obligor fails to satisfy
and maintain the Applicable Requirement; or, in the case of any Investor that became an
Included Investor pursuant to clause (c) of the definition of “Included Investor”, there
shall be a failure to observe or maintain any terms or conditions required by the
Administrative Agent, the Issuing Bank, or the Lenders in connection with such
Investor’s becoming an Included Investor under such clause (c);
(viii)the Investor delivers written notice to the Parent Borrower of
termination of such Investor’s Subscription Obligation or the termination, cancellation,
release, discharge or excusal (including as a result of ERISA issues) of all or a portion of
its Subscription Obligation or its Subscription Support Obligor’s Rated Entity Guaranty
or other supporting obligations with respect thereto, as applicable, without regard to any
notice period relating to such election; provided that, in the case of a termination,
cancellation, release, discharge or excusal of only a portion of such Investor’s
Subscription Obligation in accordance with the applicable Constituent Documents, such
Investor shall continue to be an Included Investor with respect to the portion, if any, of its
Subscription Obligation that is not terminated, cancelled, released, discharged or excused,
as applicable;
(ix)the Investor sells, assigns, or otherwise transfers all or any portion
of its interest in, or any rights in respect of its interest in, the Parent Borrower or retires,
withdraws or resigns from, the Parent Borrower; or the Investor’s interest in the Parent
Borrower is subject to any Lien (other than a Lien in favor of the Parent Borrower,
securing the Investor’s obligation to pay Subscription Obligations arising under its
Subscription Agreement or any Constituent Document of the Parent Borrower); provided
that, in the case of a transfer of only a portion of such Investor’s Subscription Obligation
in accordance with the applicable Subscription Agreement and Constituent Documents,
such Investor shall continue to be an Included Investor with respect to the portion, if any,
of its Subscription Obligation that is not transferred;
(x)in respect of the Investor or any such Subscription Support
Obligor, the Loan Parties fail to deliver to the Administrative Agent (A) within fifteen
Credit Agreement
65
ny-2788047 |
(15) Business Days after notice thereof to the Borrower to the extent in the possession of
a Loan Party and not publicly available, such Investor’s (or Subscription Support
Obligor’s) balance sheet and the related statements of operations and changes in retained
earnings, owners’ equity and cash flows for the most recently completed fiscal year
prepared by independent public accountants (or if such Investor or Subscription Support
Obligor has not retained independent public accountants for such purpose, certified by a
Responsible Officer), and (B) from time to time upon the request of the Administrative
Agent, a certificate of such Investor setting forth the remaining amount of its
Subscription Obligation that it is obligated to pay;
(xi)failure by the Investor, or any Subscription Obligation Obligor, if
applicable, to timely publish financial statements to the extent required by any regulatory
or governmental authority;
(xii)such Investor shall (A) to any Loan Party or the Administrative
Agent’s knowledge, fail to satisfy the Administrative Agent’s or any ▇▇▇▇▇▇’s “know
your customer” requirements or (B) be a Sanctioned Person;
(xiii)in the case of an Investor that (A) is designated on Schedule II as
an Included Investor that does not satisfy the Applicable Requirement or (B) became an
Included Investor pursuant to clause (c) of the definition of “Included Investor,” to the
actual knowledge of a Loan Party, failure to maintain a net worth, measured at the end of
such Investor’s fiscal year, of at least seventy-five percent (75%) of such Investor’s net
worth for the fiscal year immediately prior to the date in which such Investor became an
Included Investor hereunder; or
(xiv)such Investor shall have commenced a proceeding or investigation
that would reasonably be expected to lead to termination right under such Investor’s
Subscription Agreement or Side Letter Agreement if determined adversely.
(b)Reduction of Available Commitment. The Available Commitment
hereunder shall be immediately reduced upon the occurrence of any Exclusion Event set forth in
Section 2.19(a), provided that if an Investor cures all of such Exclusion Events prior to the
expiration of any grace period provided for in Section 2.19(a), such Investor shall automatically
be deemed to be an Included Investor without the need for Lender approval. In the event that, at
any time and from time to time, any Included Investor becomes a Non-Included Investor, the
Parent Borrower shall, after having knowledge of the occurrence of an Exclusion Event, deliver
the notice required by Section 5.01(j), Administrative Agent shall recalculate the Available
Commitment based upon the omission of such Investor’s Subscription Obligation, and if
following such calculation the Revolving Credit Exposure with respect to the Parent Borrower
and the Subsidiary Borrowers exceeds the Available Commitment, the Parent Borrower and/or
the Subsidiary Borrowers, pursuant to and in accordance with Section 2.09(b), shall repay the
Loans (or provide cover for LC Exposure as specified in Section 2.04(k)) in the amount
necessary to cause the Revolving Credit Exposure to be equal to or less than the Available
Commitment, as recalculated.
Section 2.20Defaulting Lenders. Notwithstanding any provision of this Agreement to
the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall
apply for so long as such Lender is a Defaulting Lender:
(a)fees shall cease to accrue on the unfunded portion of the Commitment of
such Defaulting Lender pursuant to Section 2.10(a);
Credit Agreement
66
ny-2788047 |
(b)any payment of principal, interest, fees or other amounts received by the
Administrative Agent for the account of such Defaulting Lender (whether voluntary or
mandatory, at maturity, pursuant to Section 7.03 or otherwise) or received by the Administrative
Agent from a Defaulting Lender pursuant to Section 10.08 shall be applied at such time or times
as may be determined by the Administrative Agent as follows:
(i)first, to the payment of any amounts owing by such Defaulting
Lender to the Administrative Agent hereunder;
(ii)second, to the payment on a pro rata basis of any amounts owing
by such Defaulting Lender to the Issuing Bank;
(iii)third, to cash collateralize LC Exposure with respect to such
Defaulting Lender in accordance with this Section 2.20;
(iv)fourth, as the Parent 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;
(v)fifth, if so determined by the Administrative Agent and the Parent
Borrower, to be held in a deposit account and released pro rata in order to (A) satisfy
such Defaulting Lender’s potential future funding obligations with respect to Loans under
this Agreement and (B) cash collateralize future LC Exposure with respect to such
Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in
accordance with this Section 2.20;
(vi)sixth, to the payment of any amounts owing to the Lenders or the
Issuing Bank as a result of any judgment of a court of competent jurisdiction obtained by
any Lender or the Issuing Bank against such Defaulting Lender as a result of such
Defaulting Lender’s breach of its obligations under this Agreement or under any other
Loan Document;
(vii)seventh, so long as no Default or Event of Default exists, to the
payment of any amounts owing to the Borrowers as a result of any judgment of a court of
competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a
result of such Defaulting Lender’s breach of its obligations under this Agreement or
under any other Loan Document; and
(viii)eighth, to such Defaulting Lender or as otherwise directed by a
court of competent jurisdiction; provided that if (A) such payment is a payment of the
principal amount of any Loans or LC Disbursements in respect of which such Defaulting
Lender has not fully funded its appropriate share, and (B) such Loans were made or the
related Letters of Credit were issued at a time when the conditions set forth in Section
4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of,
and LC Disbursements owed to, all non-Defaulting Lenders on a pro rata basis prior to
being applied to the payment of any Loans of, or LC Disbursements owed to, such
Defaulting Lender until such time as all Loans and funded and unfunded participations in
the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure are
held by the Lenders pro rata in accordance with the Commitments without giving effect
to Section 2.20(d).
Credit Agreement
67
ny-2788047 |
Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that
are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash
collateral pursuant to this Section 2.20 shall be deemed paid to and redirected by such
Defaulting Lender, and each Lender irrevocably consents hereto.
(c)the Commitment and Revolving Credit Exposure of such Defaulting
Lender shall not be included in determining whether the Required Lenders have taken or may
take any action hereunder (including any consent to any amendment, waiver or other
modification pursuant to Section 10.02); provided, that this Section 2.20(c) shall not apply to the
vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring
the consent of such Lender or each Lender affected thereby;
(d)if any LC Exposure exists at the time such Lender becomes a Defaulting
Lender then:
(i)all or any part of the LC Exposure of such Defaulting Lender shall
be reallocated among the non-Defaulting Lenders in accordance with their respective
Applicable Percentages but only to the extent that (x) the sum of all non-Defaulting
Lenders’ Revolving Credit Exposure plus such Defaulting Lender’s LC Exposure does
not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions
set forth in Section 4.02 are satisfied at such time;
(ii)if the reallocation described in clause (i) of this Section 2.20(d)
cannot, or can only partially, be effected, the Borrowers shall (A) within two (2) Business
Days to the extent such funds are available in the Subscription Account, and (B) within
twelve (12) Business Days to the extent that it is necessary for the Parent Borrower to
issue a Subscription Demand Notice to fund such required payment, following notice by
the Administrative Agent cash collateralize for the benefit of the Issuing Bank only the
Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure (after
giving effect to any partial reallocation pursuant to clause (i) of this Section 2.20(d)) in
accordance with the procedures set forth in Section 2.04(k) for so long as such LC
Exposure is outstanding and Borrowers shall be permitted to make Borrowings of
Revolving Credit Loans to post any cash collateral, subject to compliance with Section
4.02 and the other provisions of this Agreement dealing with Borrowings;
(iii)if the Borrowers cash collateralize any portion of such Defaulting
Lender’s LC Exposure pursuant to clause (ii) of this Section 2.20(d), the Borrowers shall
not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b)
with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting
Lender’s LC Exposure is cash collateralized;
(iv)if the LC Exposure of the non-Defaulting Lenders is reallocated
pursuant to clause (i) of this Section 2.20(d), then the fees payable to the Lenders
pursuant to Section 2.10(a) and Section 2.10(b) shall be adjusted in accordance with such
non-Defaulting Lenders’ Applicable Percentages;
(v)if all or any portion of such Defaulting Lender’s LC Exposure is
neither reallocated nor cash collateralized pursuant to clause (i) or (ii) of this Section
2.20(d), then, without prejudice to any rights or remedies of the Issuing Bank or any other
Lender hereunder, all facility fees that otherwise would have been payable to such
Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s
Commitment that was utilized by such LC Exposure) and letter of credit fees payable
Credit Agreement
68
ny-2788047 |
under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be
payable to the Issuing Bank until and to the extent that such LC Exposure is reallocated
and/or cash collateralized; and
(vi)so long as such Lender is a Defaulting Lender, the Issuing Bank
shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied
that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will
be one hundred percent (100%) covered by the Commitments of the non-Defaulting
Lenders and/or cash collateral will be provided by the Borrowers in accordance with
Section 2.20(c), and participating interests in any newly issued or increased Letter of
Credit shall be allocated among non-Defaulting Lenders in a manner consistent with
Section 2.20(d)(i) (and such Defaulting Lender shall not participate therein).
(e)If (i) a Bankruptcy Event or a Bail-In Action with respect to a Lender or
Lender Parent shall occur following the date hereof and for so long as such event shall continue
or (ii) the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its
obligations under one or more other agreements in which such Lender commits to extend credit,
the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the
Issuing Bank shall have entered into arrangements with the Borrowers or such Lender,
satisfactory to the Issuing Bank to defease any risk to it in respect of such Lender hereunder.
(f)In the event that the Administrative Agent, the Borrowers and the Issuing
Bank each agrees that a Defaulting ▇▇▇▇▇▇ has adequately remedied all matters that caused such
Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to
reflect the inclusion of such ▇▇▇▇▇▇’s Commitment and on such date such Lender shall purchase
at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be
necessary in order for such Lender to hold such Loans in accordance with its Applicable
Percentage.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to (and, where applicable, agrees with) each of
the Secured Parties that:
Section 3.01Organization; Powers. Each Loan Party is duly organized or formed,
validly existing and in good standing under the laws of the jurisdiction of its organization, has all
requisite corporate, partnership, statutory trust or limited liability company, as the case may be,
power and authority to own its property and assets and to carry on its business as now conducted
and, except where the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is required.
Section 3.02Authorization; Enforceability. The Transactions are within the respective
organizational powers of each Loan Party and have been duly authorized by all necessary
organizational action. Each Loan Party has duly executed and delivered each Loan Document to
which it is a party or which it is executing in a representative capacity on behalf of another party,
in each case with full power and authority, and each such Loan Document constitutes the legal,
valid and binding obligation of such Loan Party, enforceable in accordance with its terms, except
as such enforceability may be limited by (a) applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors’ rights generally and (b) the application of general
Credit Agreement
69
ny-2788047 |
principles of equity, regardless of whether such enforceability is considered in a proceeding in
equity or at law.
Section 3.03Governmental Approvals; No Conflicts. The Transactions (a) do not
require any consent or approval of, registration or filing with, or any other action by, any
Governmental Authority, except for (i) such as have been obtained or made and are in full force
and effect and (ii) filings and recordings in respect of the Liens created pursuant to the Security
Documents, (b) will not violate, in any material respect, any applicable law or regulation or the
Constituent Documents of any Loan Party or any of their respective Subsidiaries or any order of
any Governmental Authority, in each case in any material respect, (c) will not violate or result in
a default under any Subscription Agreement, indenture, material agreement or other instrument
binding upon any Loan Party or any of their respective Subsidiaries or assets, or give rise to a
right thereunder to require any payment to be made by any such Person, and (d) except for the
▇▇▇▇▇ created pursuant to the Security Documents and Permitted Liens, will not result in the
creation or imposition of, or the requirement to create, any Lien on any asset of Loan Party or
any of their respective Subsidiaries.
Section 3.04Financial Condition; No Material Adverse Change. Since the date of the
most recent financial statements delivered to the Administrative Agent pursuant to Section 5.01,
after the delivery of such financial statements pursuant thereto, there has been no event or
occurrence which has resulted in or would reasonably be expected to result in a Material Adverse
Effect, except as disclosed to the Administrative Agent.
Section 3.05Properties. Each Loan Party and its respective Subsidiaries has good title
to, or valid leasehold interests in, all its real and personal property material to its business,
subject only to any defects that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
Section 3.06Litigation and Environmental Matters.
(a)Actions, Suits and Proceedings. There are no actions, suits or proceedings
by or before any arbitrator or Governmental Authority pending against or, to the knowledge of
any Loan Party or any of their respective Subsidiaries, threatened in writing against or affecting
any Loan Party or any of their respective Subsidiaries (i) as to which there is a reasonable
possibility of an adverse determination and that, if adversely determined, could reasonably be
expected, individually or in the aggregate, to result in a Material Adverse Effect or (ii) that
involve this Agreement, any other Loan Document, any Subscription Agreement, the Placement
Memorandum, any Constituent Document of any Loan Party or the Transactions.
(b)Environmental Matters. Except with respect to any other matters that,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect, no Loan Party or Subsidiary of any Loan Party (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to any Environmental Liability,
(iii) has received notice of any claim with respect to any Environmental Liability or (iv) knows
of any basis for any Environmental Liability.
Section 3.07Compliance with Laws and Agreements. Each Loan Party and each of
their respective Subsidiaries is in compliance with all laws, regulations and orders of any
Governmental Authority applicable to it or its property and all indentures, agreements and other
instruments binding upon it or its property, except where the failure to do so, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
Credit Agreement
70
ny-2788047 |
Section 3.08Investment Company Status. No Loan Party or Subsidiary of any Loan
Party is an “investment company” as defined in, or subject to regulation under, the Investment
Company Act of 1940, as amended.
Section 3.09Taxes. Each of the Loan Parties and their respective Subsidiaries has
timely filed or timely caused to be filed all federal, state and other material Tax returns,
information statements and reports required to have been filed and has paid or caused to be paid
all Taxes required to have been paid by it, except (a) Taxes that are being contested in good faith
by appropriate proceedings and for which such Person has set aside on its books adequate
reserves in accordance with GAAP or (b) to the extent that the failure to timely file Tax returns
or pay Taxes would not reasonably be expected to result in a Material Adverse Effect.
Section 3.10ERISA.
(a)No Loan Party or Subsidiary of any Loan Party has any employees as of
the Effective Date.
(b)Each of the Borrowers either (i) qualifies as a VCOC or a REOC, (ii)
complies with an exception set forth in the Plan Asset Regulation such that the assets of such
Borrower would not be subject to Title I of ERISA and/or Section 4975 of the Code or (iii) does
not hold any Plan Assets.
(c)Assuming no source of funds used by any Lender in connection with the
transactions contemplated in the Loan Documents constitute Plan Assets, none of the Loan
Documents will constitute a nonexempt prohibited transaction (as such term is defined in Section
4975(c)(1)(A)-(D) of the Code or Section 406(a) of ERISA).
Section 3.11Disclosure.
(a)None of the reports, financial statements, certificates or other written
information furnished by or at the request of each Loan Party and each of their respective
Subsidiaries to the Administrative Agent or any Lender in connection with the negotiation of this
Agreement and the other Loan Documents or delivered hereunder or thereunder (as modified or
supplemented by other information so furnished), when taken as a whole, contains any material
misstatement of fact or omits to state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading; provided that,
with respect to projections, estimates and other forward-looking materials and information of a
general economic or industry nature, such Loan Party represents only that such information was
prepared in good faith based upon assumptions believed to be reasonable at the time.
(b)As of the Effective Date, to the knowledge of each Loan Party, the
information included in any Beneficial Ownership Certification in relation to such Loan Party
provided on or prior to the Effective Date to any Lender in connection with this Agreement is
true and correct in all respects.
Section 3.12Use of Credit. Neither such Borrower nor any of its Subsidiaries is
engaged principally, or as one of its important activities, in the business of extending credit for
the purpose, whether immediate, incidental or ultimate, of buying or carrying Margin Stock, and
no part of the proceeds of any extension of credit hereunder will be used to buy or carry any
Margin Stock. Following the application of the proceeds of each Borrowing or drawing under
each Letter of Credit, not more than 25% of the value of the assets (either of the Borrowers only
or of the Borrowers and their Subsidiaries on a consolidated basis) will be Margin Stock.
Credit Agreement
71
ny-2788047 |
Section 3.13Solvency. On the Effective Date and after giving effect to the Loans
occurring on the Effective Date or such other date as Loans requested hereunder are made, and
the disbursement of the proceeds of such Loans pursuant to such ▇▇▇▇▇▇▇▇’s instructions, such
Borrower is and will be Solvent.
Section 3.14No Default. No Default or Event of Default exists under or with respect to
any Loan Document to which a Loan Party is a party.
Section 3.15Insurance. Each Loan Party and each of their respective Subsidiaries
currently maintains all insurance which is required to be maintained by Section 5.05.
Section 3.16Security Interests and Liens. The Security Documents create, as security
for the Obligations, valid and enforceable, exclusive, perfected first priority security interests in
and ▇▇▇▇▇ on all of the respective Collateral, in favor of the Administrative Agent as agent for the
benefit of the Secured Parties, subject to no other Liens (other than Permitted Liens), except as
enforceability may be limited by applicable insolvency, bankruptcy or other laws affecting
creditors’ rights generally, or general principles of equity, whether such enforceability is
considered in a proceeding in equity or at law. Such security interests in and Liens on the
Collateral shall be superior to and prior to the rights of all third parties in the Collateral (subject
to Permitted Liens), and, other than in connection with any future change in a Loan Party’s name
or the location in which a Loan Party is organized or registered, no further recordings or filings
are or will be required in connection with the creation, perfection or enforcement of such security
interests and ▇▇▇▇▇, other than the filing of continuation statements in accordance with applicable
law.
Section 3.17Organizational Documents. The organizational documents delivered
pursuant to Section 4.01(e) constitute, as of the Effective Date, true, correct, and complete copies
of all of the Constituent Documents (together with all amendments and modifications thereof) of
each Loan Party.
Section 3.18Principal Offices; Places of Organization. The principal office, chief
executive office and principal place of business of each Loan Party are located at the address
specified in Schedule III. The jurisdiction of organization of each Loan Party is the jurisdiction
specified in Schedule III.
Section 3.19Tax Status. As of the date hereof, the Parent Borrower is classified as a
corporation for U.S. federal income tax purposes. The Parent Borrower intends to be classified as
a REIT commencing with its taxable year ending December 31, 2025 and thereafter shall use its
commercially reasonable efforts to continue to be classified as a REIT for U.S. federal income
tax purposes. Each Subsidiary Borrower shall be classified as a corporation, REIT, partnership or
disregarded entity of a corporation, REIT or partnership for U.S. federal income tax purposes.
Section 3.20Subscription Obligations.
(a)Subscription Obligations. As of the date hereof, the Parent Borrower
represents and warrants that (i) the Subscription Obligations aggregate $150,000,000.00, (ii)
Subscription Calls in the aggregate of $0.00 have been made and (iii) to the knowledge of the
Parent Borrower, no Investor is in default under the Operating Agreement or any Subscription
Agreement to which it is a party (other than any Non-Included Investor in a default of which
Administrative Agent has been notified).
(b)Issuance of Certificates. No certificates representing Equity Interests in the
Parent Borrower have been issued and none will be issued. Other than those actions already
Credit Agreement
72
ny-2788047 |
taken by or on behalf of the Parent ▇▇▇▇▇▇▇▇, the acts involved in the “issuance” of an interest in
the Parent Borrower in connection with any Subscription Payment to the Parent Borrower, in
each case (i) are entirely ministerial, requiring no decision of any management or executive
character, involving not more than the recordation of receipt of the relevant Subscription
Payment, (ii) do not involve any material cost, expense or other burden whatsoever on the part of
the Parent Borrower, and (iii) are delegable to a ministerial agent, and have been so delegated to
the Administrative Agent, as agent of each Loan Party for this purpose upon the occurrence and
continuance of an Event of Default hereunder.
Section 3.21Brokers. No Loan Party has dealt with any broker or finder in connection
with the Loan Documents.
Section 3.22Anti-Corruption Laws and Sanctions. The Loan Parties have implemented
and maintain, or are subject to, in effect policies and procedures reasonably designed to promote
and achieve compliance by the Loan Parties, their Subsidiaries and their respective directors,
officers and employees with Anti-Corruption Laws and applicable Sanctions, and the Loan
Parties, their Subsidiaries and their respective officers and to the knowledge of the Loan Parties
their directors, employees and agents, are in compliance with Anti-Corruption Laws and
applicable Sanctions in all material respects. No (a) Loan Party, Subsidiary of any Loan Party,
any of their respective directors, officers or to the knowledge of the Loan Parties and the
Subsidiaries of the Loan Parties any of their respective employees, or (b) to the knowledge of the
Loan Parties, any agent of any Loan Party or Subsidiary of any Loan Party that will act in any
capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned
Person. No Transactions will violate any Anti-Corruption Law or applicable Sanctions.
Section 3.23Management Agreement. There is no contract or agreement which has not
been disclosed and provided in writing to the Administrative Agent which impacts the power and
the authority of the Parent Borrower to make Subscription Calls or issue Subscription Demand
Notices for or on behalf of the Parent Borrower. The Management Company does not possess,
whether pursuant to the Management Agreement or otherwise, the power or authority to make
Subscription Calls or issue Subscription Demand Notices for or on behalf of the Parent
Borrower.
Section 3.24Solvency. The Loan Parties and their respective Subsidiaries are Solvent.
Section 3.25Side Letter Agreements. Each Loan Party is in compliance, in all material
respects, with its material obligations under each Side Letter Agreement (if any) and there
contains no material misrepresentation or inaccurate statement by a Loan Party therein.
ARTICLE IV
CONDITIONS
Section 4.01Effective Date. The obligations of the Lenders to make Loans and of the
Issuing Bank to issue Letters of Credit hereunder shall not become effective until the date on
which (i) the Administrative Agent shall have received each of the following documents and (ii)
each of the other conditions listed below is satisfied, the satisfaction of such conditions to be
satisfactory to the Administrative Agent (and to the extent specified below, to each Lender) in
form and substance (or such condition shall have been waived in accordance with Section 10.02):
(a)Agreement. From each party hereto either (i) a counterpart of this
Agreement signed on behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which, subject to Section 10.06, may include any Electronic Signatures
Credit Agreement
73
ny-2788047 |
transmitted by telecopy, emailed .pdf, or any other electronic means that reproduces an image of
an actual executed signature page) that such party has signed a counterpart of this Agreement.
(b)Notes. The Notes duly completed and executed by the Parent Borrower for
each Lender that has requested a Note.
(c)Opinion of Counsel to the Borrowers. A favorable written opinion
(addressed to the Administrative Agent and the Lenders and dated the Effective Date) of (i)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Parent Borrower, and (ii) ▇▇▇▇▇▇▇ LLP,
Maryland counsel for the Parent Borrower, covering such other matters relating to the Parent
Borrower, this Agreement or the Transactions as the Administrative Agent and/or the Required
Lenders shall reasonably request (and the Parent Borrower hereby instructs such counsel to
deliver such opinion to the Lenders and the Administrative Agent).
(d)VCOC/REOC Opinion of Counsel to the Borrowers. With respect to each
▇▇▇▇▇▇▇▇, either (i) a copy of a written opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for
the Loan Parties, addressed to the Parent Borrower, along with a reliance letter, dated the
Effective Date, with respect thereto, addressed to the Administrative Agent and the Lenders, that
the Parent Borrower should qualify as a VCOC or REOC or (ii) a 25% Certificate.
(e)Corporate and Organizational Documents. Such documents and
certificates as the Administrative Agent or its counsel may reasonably request relating to the
organization, existence and good standing of the Loan Parties, the authorization of the
Transactions, and any other matters relevant hereto, all in form and substance satisfactory to the
Administrative Agent and its counsel.
(f)Officer’s Certificate. A certificate, dated the Effective Date and signed by
a Responsible Officer of the Parent Borrower confirming compliance with the conditions set
forth in the lettered clauses (b), (c), (d) and (f) of the first sentence of Section 4.02.
(g)Borrowing Base Certificate. A Borrowing Base Certificate signed by the
Parent Borrower dated as of the Effective Date.
(h)Security Documents. Each of the Security Documents, duly executed and
delivered by each Loan Party that is a party thereto. In addition, the Parent Borrower shall have
taken such other action (including delivering to the Administrative Agent, for filing,
appropriately completed and duly executed copies of Uniform Commercial Code financing
statements) as the Administrative Agent shall have reasonably requested in order to perfect the
security interests created pursuant to the Security Documents.
(i)Investor Acknowledgments. ▇▇▇▇ executed original Investor
Acknowledgments as of the Effective Date, together with (i) an opinion of each such Included
Investor’s counsel substantially in the form of Exhibit F, or (ii) such other evidence reasonably
satisfactory to the Administrative Agent addressing (x) the authority of such Included Investor to
execute and deliver its Investor Acknowledgment and Subscription Agreement and (y) in
connection with foreign Included Investors or Included Investors with sovereign immunity, the
matters addressed in paragraph 5 of Exhibit F.
(j)Subscription Agreements and Side Letter Agreements. ▇▇▇▇ executed
copies of each Subscription Agreement and Side Letter Agreement, for all Investors.
Credit Agreement
74
ny-2788047 |
(k)Financial Information. The Administrative Agent shall have received all
available financial information with respect to each Loan Party reasonably requested by the
Administrative Agent;
(l)Consents. Copies of all material consents and approvals, if any, required in
connection with the execution, delivery and performance by the Loan Parties, and the validity
and enforceability, of the Loan Documents, or in connection with any of the transactions
contemplated thereby, and such consents, licenses and approvals shall be in full force and effect
in all material respects.
(m)Patriot Act. The Administrative Agent shall have received, at least five (5)
days prior to the Effective Date, all documentation and other information regarding the Loan
Parties requested in connection with applicable “know your customer” and anti-money
laundering rules and regulations, including the Patriot Act, to the extent requested in writing of
the Parent Borrower at least ten (10) days prior to the Effective Date.
(n)Beneficial Ownership. To the extent any Loan Party qualifies as a “legal
entity customer” under the Beneficial Ownership Regulation, at least five (5) days prior to the
Effective Date, any Lender that has requested, in a written notice to such Loan Party (or the
Parent Borrower on behalf of such Loan Party) at least ten (10) days prior to the Effective Date, a
Beneficial Ownership Certification in relation to such Loan Party shall have received such
Beneficial Ownership Certification (provided that, upon the execution and delivery by such
Lender of its signature page to this Agreement, the condition set forth in this clause (n) shall be
deemed to be satisfied).
(o)UCC Searches. Satisfactory reports of UCC (collectively, the “UCC
Searches”), tax lien, judgment and litigation searches conducted by a search firm reasonably
acceptable to Administrative Agent with respect to the Collateral, the Parent Borrower, such
searches to be conducted by a search firm in each of the locations specified by the
Administrative Agent.
(p)UCC Filings. UCC-1 financing statements with respect to the Pledge and
the Cash Collateral Agreement.
(q)Management Fee Subordination Agreement. The Management Fee
Subordination Agreement, duly executed and delivered by the Parent Borrower, the Management
Company and the Administrative Agent.
(r)[Reserved].
(s)[Reserved].
(t)Other Documents. Such other documents as the Administrative Agent or
any Lender or ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special New York counsel to the Administrative Agent
may reasonably request.
The obligation of any Lender to make its initial extension of credit hereunder is also
subject to the payment by the Loan Parties of such fees, expenses and other consideration then
due and owing as the Loan Parties shall have agreed to pay to any Lender, the Arranger or the
Administrative Agent in connection herewith, including the reasonable and documented fees and
expenses of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special New York counsel to the Administrative Agent, in
connection with the negotiation, preparation, execution and delivery of this Agreement and the
Credit Agreement
75
ny-2788047 |
other Loan Documents and the extensions of credit hereunder (to the extent that statements for
such fees and expenses have been delivered to the Loan Parties prior to the Effective Date).
The Administrative Agent shall notify the Loan Parties and the Lenders of the Effective
Date, and such notice shall be conclusive and binding.
Section 4.02Each Credit Event. The obligation of each Lender to make a Loan on the
occasion of any Borrowing, and of the Issuing Bank to issue, amend or extend any Letter of
Credit, is subject to the satisfaction of the following conditions:
(a)receipt by the Administrative Agent of a Borrowing Request and
Borrowing Base Certificate pursuant to Section 2.03 or, if applicable, a request for a Letter of
Credit pursuant to Section 2.04(b);
(b)immediately after such Borrowing or the date of issuance, amendment or
extension of such Letter of Credit, as applicable, (i) the Revolving Credit Exposure with respect
to the Parent Borrower and the Subsidiary Borrowers will not exceed the Available Commitment
with respect to the Parent Borrower and (ii) with respect to each Lender, such ▇▇▇▇▇▇’s
Applicable Percentage of the Revolving Credit Exposure will not exceed such ▇▇▇▇▇▇’s
Commitment;
(c)the representations and warranties of each Borrower contained in this
Agreement and in the other Loan Documents shall be true and correct in all material respects
(without duplication of any materiality qualifier) on and as of the date of such Borrowing or the
date of issuance, amendment or extension of such Letter of Credit, as applicable; provided, that
to the extent such representations and warranties were made as of a specific date, the same shall
continue on and as of the date of such Borrowing or the date of issuance, amendment or
extension of such Letter of Credit, as applicable, to be true and correct in all material respects
(without duplication of any materiality qualifier) as of such specific date;
(d)at the time of and immediately after giving effect to such Borrowing or the
issuance, amendment or extension of such Letter of Credit, as applicable, no Default or Event of
Default shall have occurred and be continuing;
(e)[reserved];
(f)subject to Section 4.01(i) with respect to Investors as of the Effective
Date, the Parent Borrower shall have delivered to the Administrative Agent (i) duly executed
copies of a Subscription Agreement and any Side Letter Agreements for each then existing
Investor to the extent not previously delivered under this Section 4.02(f) or Section 4.01(j), (ii) in
the case of Included Investors, a duly executed original of an Investor Acknowledgment to the
extent not previously delivered under this Section 4.02(f) or Section 4.01(i) and (iii) in the case
of Included Investors, (A) an opinion substantially in the form of Exhibit F in the case of each
Included Investor to the extent not previously delivered under this Section 4.02(f) or Section
4.01(i) or (B) such other evidence reasonably satisfactory to the Administrative Agent addressing
(x) the authority of such Included Investor to execute and deliver its Investor Acknowledgment
and Subscription Agreement and (y) in connection with foreign Included Investors or Included
Investors with sovereign immunity, the matters addressed in paragraph 5 of Exhibit F;
(g)(i) no law or regulation shall have been adopted, no order, judgment or
decree of any Governmental Authority shall have been issued, and no litigation shall be pending
or threatened in writing, which does or, with respect to any threatened litigation in writing, seeks
Credit Agreement
76
ny-2788047 |
to enjoin, prohibit or restrain, the applicable Borrower’s borrowing of the Loans, the issuance to
the applicable Borrower of any Letters of Credit or the applicable Borrower’s consummation of
the transactions contemplated by this Agreement and (ii) no law or regulation shall have been
adopted, no order, judgment or decree of any Governmental Authority shall have been issued,
and no litigation shall be pending or threatened in writing, which does or, with respect to any
threatened litigation, seeks to enjoin, prohibit or restrain, the making or repayment of the Loans,
the issuance of any Letters of Credit or any participations therein or the consummation of the
transactions contemplated by this Agreement; and
(h)no event shall have occurred which results in a material adverse effect on
(i) the ability of any Loan Party to perform any of its Obligations under this Agreement or any of
the other Loan Documents to which it is a party or (ii) the validity or enforceability of any of the
Loan Documents or the rights of or benefits available to any Secured Party under any Loan
Document, in each case, as reasonably determined by the Administrative Agent.
Each Borrowing and each issuance, amendment or extension of a Letter of Credit shall be
deemed to constitute a representation and warranty by each Loan Party (whether or not a specific
Borrower has requested the Borrowing or the issuance, amendment or extension of a Letter of
Credit) on the date thereof as to the matters specified in this Section 4.02.
Section 4.03Liens and Security Interest.
(a)Subscription Obligations, Subscription Calls and Other Rights. To secure
performance by each Loan Party of the payment of its respective Loans and the other
Obligations, and in accordance with the Parent ▇▇▇▇▇▇▇▇’s Constituent Documents, the
Subscription Agreements and the Investor Acknowledgments:
(i)pursuant to the Pledge, the Parent Borrower shall grant to the
Administrative Agent, for the benefit of each of the Secured Parties, an exclusive security
interest and lien (which shall be first priority) in and to the Parent ▇▇▇▇▇▇▇▇’s right in any
Subscription Obligations now existing or hereafter created, subject to Permitted Liens;
(ii)pursuant to the Pledge, the Parent Borrower shall grant to the
Administrative Agent, for the benefit of each of the Secured Parties, an exclusive security
interest and lien (which shall be first priority) in and to the right of the Parent Borrower to
make Subscription Calls and any other rights to call for and receive payments of
Subscription Obligations as contemplated by the applicable Subscription Agreements or
Operating Agreement, as applicable, now existing or hereafter created and to enforce the
payment of such Subscription Calls and any Rated Entity Guaranty;
(iii)pursuant to the Pledge, the Parent Borrower shall grant to the
Administrative Agent, for the benefit of each of the Secured Parties, an exclusive security
interest and lien (which shall be first priority) in and to and assignment of all its rights
under the respective Subscription Obligations (now existing or hereafter created),
including the right to require an Investor to fund its Subscription Obligations thereunder;
and
(iv)pursuant to the Cash Collateral Agreement, the Parent Borrower
shall grant to the Administrative Agent, for the benefit of each of the Secured Parties, an
exclusive security interest (which shall be first priority) in the Subscription Account and
all the proceeds thereof as more fully described in the Cash Collateral Agreement.
Credit Agreement
77
ny-2788047 |
(b)Subscription Account.
(i)In order to secure further the payment of the Notes and the
performance by the Loan Parties of their respective Obligations and to effect and
facilitate the right of the Lenders to offset, while any obligations are outstanding, (A)
each of the Loan Parties hereby irrevocably appoints (directly or via collateral
assignment) the Administrative Agent as subscription agent and the sole party entitled in
the name of the Parent Borrower to make any Subscription Calls upon the Investors upon
the occurrence of an Event of Default (but only during the continuance thereof and
subject to Sections 7.03 and 7.04 hereof) pursuant to the terms of the respective
Subscription Agreements (now existing or hereafter created), and (B) the Parent
Borrower shall direct all of the Investors to wire transfer to the Subscription Account all
monies or sums paid or to be paid by the Investors to fund their Subscription Obligations
as and when the Investors are required pursuant to their respective Subscription
Agreements and Constituent Documents to fund such Subscription Obligations. In
addition, to the extent that a Loan Party receives any payments and monies from an
Investor during the term of this Agreement, it shall immediately deposit such payments
and monies upon receipt into the Subscription Account.
(ii)Notwithstanding anything to the contrary herein contained, it is
expressly understood and agreed that neither the Administrative Agent nor the Lenders
undertake any duties, responsibilities, or liabilities with respect to the Subscription Calls.
Neither the Administrative Agent nor the Lenders shall be required to refer to any Loan
Party’s Constituent Documents or the Subscription Agreements or take any other action
with respect to any other matter which might arise in connection with any Loan Party’s
Constituent Documents, the Subscription Agreements or any Subscription Call. Neither
the Administrative Agent nor the Lenders has any duty to determine or inquire into any
happening or occurrence or any performance or failure of performance of any Loan Party.
Neither the Administrative Agent nor the Lenders has any duty to inquire into the use,
purpose, or reasons for the making of any Subscription Call or with respect to the
investment or use of the proceeds thereof.
(iii)Provided that (A) the Administrative Agent has received notice of
the applicable Subscription Call as required by Section 5.01(n) and a Borrowing Base
Certificate as required by Section 5.01(o), (B) no monetary Default and no Event of
Default shall have occurred and be continuing and (C) the Available Commitment
exceeds the Total Revolving Credit Exposure, then the Administrative Agent shall
disburse funds from the Subscription Account as directed by the Parent Borrower. Except
as provided in clause (iv) of this Section 4.03(b), or otherwise for the purpose of curing
an outstanding Default under Section 7.01(a), upon the occurrence and during the
continuance of a monetary Default or any Event of Default or if the Total Revolving
Credit Exposure exceeds Available Commitment, no Loan Party shall have any right to
request a disbursal of any funds from the Subscription Account.
(iv)Each Loan Party hereby irrevocably authorizes and directs the
▇▇▇▇▇▇▇, acting through the Administrative Agent, at any time following the occurrence
and during the continuance of an Event of Default while any Obligations are outstanding,
to charge from time to time the Subscription Account and any other accounts of such
Loan Party at the Lenders for amounts due from such Loan Party to the Lenders or any of
them hereunder and under the Notes or any Letters of Credit. The Administrative Agent,
on behalf of and in the name of the Lenders, is ▇▇▇▇▇▇ authorized, in the name of the any
Loan Party, at any time or from time to time following the occurrence and during the
continuance of an Event of Default while any Obligations are outstanding, to notify any
Credit Agreement
78
ny-2788047 |
or all parties obligated to the Parent Borrower with respect to the Subscription
Obligations to make all payments due or to become due thereon directly to the
Administrative Agent on behalf of the Lenders, at a different account number, or to
initiate one or more Subscription Calls of the Subscription Obligations in order to pay the
Loans. With or without such general notification, following the occurrence and during the
continuance of an Event of Default while any Obligations are outstanding, subject to
Section 7.04, the Administrative Agent, on behalf of the Lenders, (A) may make
Subscription Calls in the name of any Loan Party (to the extent such Subscription Call is
permitted under the applicable Subscription Agreements and Operating Agreement), (B)
may take or bring in name of any Loan Party (to the extent permitted under the applicable
Subscription Agreements and Operating Agreement) all steps, actions, suits or
proceedings deemed by the Administrative Agent necessary or desirable to effect
possession or collection of payments, (C) may complete in the name of any Loan Party
any contract or agreement of the Parent Borrower (to the extent permitted under the
applicable Subscription Agreements and Operating Agreement) required to realize upon
the Subscription Obligations, (D) may compromise in the Parent ▇▇▇▇▇▇▇▇’s name any
claims related to the Subscription Obligations, (E) may extend credit in its own name or
the name of the Parent Borrower (to the extent permitted under the applicable
Subscription Agreements and Operating Agreement), or (F) may exercise in the Parent
▇▇▇▇▇▇▇▇’s name any right, privilege, power or remedy provided to the Parent Borrower,
as applicable, or under the Parent Borrower’s Constituent Documents or any Subscription
Agreement required to realize upon the Subscription Obligations. Regardless of any
provision hereof, in the absence of gross negligence or willful misconduct by the
Administrative Agent or the Lenders, neither the Administrative Agent nor the Lenders
shall ever be liable for failure to collect or for failure to exercise diligence in the
collection, possession, or any transaction concerning all or part of the Subscription Calls
or Subscription Obligations or sums due or paid thereon, nor shall they be under any
obligation whatsoever to anyone by virtue of the security interest and liens relating to the
Subscription Calls or Subscription Obligations.
(v)The Administrative Agent, on behalf of the Lenders, is hereby
authorized and empowered, following the occurrence and during the continuance of an
Event of ▇▇▇▇▇▇▇, on behalf of the Parent Borrower, to endorse the name of the Parent
Borrower, upon any check, draft, instrument, receipt, instruction or other document or
items, including all items evidencing payment upon a Subscription Call of any Person to
the Parent Borrower coming into the Administrative Agent’s possession, and to receive
and apply the proceeds therefrom in accordance with the terms hereof. The
Administrative Agent on behalf of the Lenders is hereby granted an irrevocable power of
attorney, which is coupled with an interest, to execute all checks, drafts, receipts,
instruments, instructions or other documents, agreements, or items on behalf of the Parent
Borrower, either before or after demand of payment on the Notes or any other Obligation
but only following the occurrence and during the continuance of an Event of Default as
shall reasonably be deemed by the Administrative Agent to be necessary or advisable to
protect the security interests and liens in the Subscription Obligations, the shares in the
Parent Borrower or the repayment of the Obligations, and neither the Administrative
Agent nor any Lenders shall incur any liability in connection with or arising from its
exercise of such power of attorney in the absence of gross negligence or willful
misconduct.
(vi)The application by the Lenders of such funds hereunder shall,
unless the Administrative Agent shall agree otherwise in writing, be first to the payment
of fees and reasonable costs and expenses due the Lenders under this Agreement, second
to the payment of accrued interest due on each Note and last to the payment of the
Credit Agreement
79
ny-2788047 |
principal of each Note. Each Loan Party acknowledges that all funds so transferred into
the Subscription Account shall not be subject to any Lien of any party, other than the
Administrative Agent and the Lenders.
(c)Agreement to Deliver Additional Security Documents.
(i)The Parent Borrower shall deliver such security agreements,
financing statements, assignments and other Security Documents (all of which shall be
deemed part of the Security Documents), in form and substance reasonably satisfactory to
the Administrative Agent, as the Administrative Agent acting on behalf of the Lenders
may reasonably request from time to time for the purpose of granting to, or maintaining
or perfecting in favor of, the Lenders, first and exclusive security interests in the right to
make Subscription Calls to repay the Obligations and in and to the Subscription
Obligations, together with other reasonable assurances as to the enforceability and
priority of the Lenders’ liens and assurances of due recording and documentation of
copies of the Security Documents, as the Administrative Agent may reasonably require to
avoid material impairment of the liens and security interests granted or purported to be
granted pursuant to this Section 4.03.
(ii)At the time of the admission of Subsequent Investors, the Parent
Borrower shall use its best efforts to promptly deliver the following to the Administrative
Agent: (A) duly executed copies of Subscription Agreements and any Side Letter
Agreements with respect to such Subsequent Investors, (B) in the case of Included
Investors, duly executed original Investor Acknowledgments, and (C) in the case of
Included Investors, legal opinions substantially in the form of Exhibit G or other evidence
reasonably satisfactory to the Administrative Agent addressing (x) the authority of such
Subsequent Investors to execute and deliver such Investor Acknowledgments and
Subscription Agreements and (y) in connection with foreign Subsequent Investors or
Subsequent Investors with sovereign immunity, the matters addressed in paragraph 5 of
Exhibit F. The Parent Borrower acknowledges that in the event it fails to deliver any of
the items listed in the preceding sentence of this Section 4.03(c)(ii) with respect to any
Subsequent Investor, such Subsequent Investor will not be an Included Investor unless
one hundred percent (100%) of the Lenders approve in writing the inclusion of such
Subsequent Investor as an Included Investor, which approval may be withheld in their
sole and absolute discretion; provided, however, that such failure shall not constitute a
Default or Event of Default hereunder. Notwithstanding the failure of the Parent
Borrower to deliver each of the foregoing with respect to any Subsequent Investor, each
Loan Party must require all the Subsequent Investors to fund their applicable
Subscription Calls into the Subscription Account.
(d)Subordination of Claims.
(i)Until all the Loan Parties’ respective Obligations shall be paid and
satisfied in full (other than contingent liabilities not yet due and owing) and the
Commitments terminated, the Parent Borrower shall not receive or collect, directly or
indirectly, from any Investor any amount upon the Investor Claims other than pursuant to
this Section 4.03.
Credit Agreement
80
ny-2788047 |
(ii)Without the prior written consent of the Administrative Agent,
after the occurrence and during the continuation of an Event of Default, for so long as any
Loans or LC Exposure are outstanding, the Parent Borrower shall not: (A) exercise or
enforce any creditor or other right it may have against an Investor on account of any
Investor Claims, (B) foreclose, repossess, sequester or otherwise take steps or institute
any action or proceedings (judicial or otherwise, including the commencement of, or
joinder in, any liquidation, bankruptcy, rearrangement, debtor’s relief or insolvency
proceeding) to enforce any liens, mortgages, deeds of trust, security interest, collateral
rights, judgments or other encumbrances on assets of such Investor held by it as security
for any Investor Claims, or (C) exercise any rights or remedies against an Investor under
a Subscription Agreement or the Operating Agreement, as applicable.
(iii)After the occurrence and during the continuation of an Event of
Default, for so long as any Loans or LC Exposure are outstanding: (A) no Borrower may
make any payment to any Investor or any other Loan Party, except to the extent that such
payments are made to such Loan Party in order to directly or indirectly pay the
Obligations; and (B) all such claims of the Loan Parties and the Investors are and shall be
subordinate in right of payment to the Obligations hereunder.
(e)Management Fee. The Parent Borrower shall cause the Management
Company to subordinate its right to the Management Fees to the Obligations hereunder;
provided, however, that for so long as no acceleration of the Loans has occurred and is
continuing during an Event of Default pursuant to the terms of this Agreement, the Management
Company shall be entitled to receive the Management Fees pursuant to the terms of the
applicable Management Agreement.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the principal of and interest
on each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit
shall have expired or terminated or been cash collateralized and all LC Disbursements shall have
been reimbursed, each Borrower (except as otherwise provided below in this Article V)
covenants and agrees with the Lenders that:
Section 5.01Financial Statements and Other Information. Each applicable Loan Party,
as to itself and its Subsidiaries, will furnish to the Administrative Agent and each Lender,
including their Public-▇▇▇▇▇▇:
(a)as soon as available and in any event within one hundred twenty (120)
days after the end of each fiscal year of the Parent Borrower (commencing with the fiscal year
ended December 31, 2024), the audited consolidated balance sheet and related statements of
operations, shareholders’ equity and cash flows of the Parent Borrower and its Subsidiaries, as
applicable (to the extent required to be consolidated in accordance with GAAP), as of the end of
and for such year, setting forth in each case in comparative form (if applicable) the figures for
the previous fiscal year, all reported on by Deloitte & Touche LLP or other independent public
accountants of recognized national standing (without a “going concern” or like qualification or
exception and without any qualification or exception as to the scope of such audit) to the effect
that such consolidated financial statements present fairly in all material respects the financial
condition and results of operations of the Parent Borrower and its Subsidiaries, as applicable, on
a consolidated basis in accordance with GAAP consistently applied;
Credit Agreement
81
ny-2788047 |
(b)[reserved];
(c)the Parent ▇▇▇▇▇▇▇▇ agrees to promptly provide notice to the
Administrative Agent that the assets of the Parent Borrower constitutes Plan Assets of an ERISA
Investor;
(d)within sixty (60) days after the end of each of the first three fiscal quarters
of each fiscal year of the Parent Borrower (commencing with fiscal quarter ended December 31,
2024), the unaudited consolidated and consolidating balance sheet and related statements of
operations, shareholders’ equity and cash flows of the Parent Borrower and its Subsidiaries, as
applicable (to the extent required to be consolidated in accordance with GAAP), as of the end of
and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth, if
applicable, in each case in comparative form the figures as of the end of and for the
corresponding period or periods of the previous fiscal year, all certified by a Responsible Officer
of the Parent Borrower as presenting fairly in all material respects the financial condition and
results of operations of the Parent Borrower and its Subsidiaries, as applicable, on a consolidated
basis in accordance with GAAP consistently applied, subject to normal year end audit
adjustments and the absence of footnotes;
(e)concurrently with the delivery of each quarterly report referenced under
Section 5.01(a) and Section 5.01(d), a Borrowing Base Certificate from a Responsible Officer of
the Parent Borrower;
(f)concurrently with any delivery of financial statements under Section
5.01(a) or Section 5.01(d), a Responsible Officer’s certificate (i) certifying as to whether a
Default has occurred and, if a Default has occurred, specifying the details thereof and any action
taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed
calculations demonstrating compliance with Section 6.01 and Section 6.14, and (iii) stating
whether any change in GAAP or in the application thereof has occurred since the date of the
audited financial statements referred to in Section 5.01(a) and, if any such change has occurred,
specifying the effect of such change on the financial statements accompanying such certificate;
(g)[reserved];
(h)to the extent not otherwise provided ▇▇▇▇▇▇▇▇▇, promptly upon the mailing
thereof to the Investors generally, copies of all financial statements, material reports and opinions
and all other material information so mailed; provided that the delivery obligations in this
Section 5.01(h) shall not apply to (i) any Investor report, statements or communications
furnished to any Investor on an individual basis; or (ii) any report that contains privileged
information or information subject to confidentiality obligations with third parties the disclosure
of which is prohibited thereby;
(i)promptly upon the receipt thereof, except to the extent containing
privileged information or information subject to confidentiality obligations with third parties the
disclosure of which is prohibited thereby and such information could not reasonably be expected
to have a Material Adverse Effect, copies of all financial statements, reports and other material
information and other material correspondence received by the Parent Borrower and/or the
Management Company from the Investors, including notices of default, notices relating in any
way to an Investor’s funding obligation and any notice containing any reference to misconduct of
the Management Company and/or the Parent Borrower;
(j)promptly and in any event within five (5) Business Days after the Parent
Borrower obtains actual knowledge of the occurrence of an Exclusion Event, a notice setting
Credit Agreement
82
ny-2788047 |
forth the Exclusion Event, the Parent Borrower’s calculation of the Available Commitment after
taking into account such Exclusion Event, and the Parent Borrower’s calculation of the amount
which the Parent Borrower is required to repay pursuant to Section 2.09(b)(i) or Section 2.19 as a
result of such Exclusion Event;
(k)promptly and in any event within five (5) Business Days after each
withdrawal, excuse or exclusion from an investment of an ERISA Investor or Governmental Plan
Investor pursuant to the Operating Agreement and/or the applicable Subscription Agreement, a
notice setting forth each Investor that has withdrawn, excused or excluded and in each case the
details thereof;
(l)promptly and in any event within five (5) Business Days after the Parent
Borrower obtains actual knowledge of a change in any debt rating of any Investor or, if
applicable, of any Sponsor, Responsible Party or Rated Entity Guarantor of any Investor, a notice
of such change;
(m)at least twenty (20) days prior to each “annual valuation period” as such
term is defined in the Plan Asset Regulation, if any, notice of the date which is the first day of
such period;
(n)copies of each Subscription Demand Notice delivered to the Investors and
any opinion of counsel or other material notice or report sent to or received from any Investor,
simultaneously when such notice is sent to any Investor and within two (2) Business Days after
the same is received from any Investor;
(o)upon the delivery of a Subscription Demand Notice under a Subscription
Agreement, a Borrowing Base Certificate completed assuming each Investor complies with its
obligation to fund its Unfunded Capital Commitments pursuant to such Subscription Demand
Notice;
(p)in the event that any capital has been returned by the Parent to any
Investor and any such returned capital is deemed to again be an Unfunded Capital Commitment
of an Investor, the Parent Borrower shall promptly thereafter (i) deliver to each such Investor,
with a copy to the Administrative Agent, a statement that sets forth, with respect to such
Investor, (A) the amount of such returned capital that again constitutes an Unfunded Capital
Commitment of such Investor and (B) such Investor’s total Unfunded Capital Commitments and
(ii) execute and deliver to the Administrative Agent a statement acknowledging the accuracy of
the statement delivered pursuant to clause (i) of this Section 5.01(p); and
(q)promptly following any request therefor, (i) such other information
regarding the operations, business affairs, financial condition and indebtedness of such Loan
Party or any of its Subsidiaries, or compliance with the terms of this Agreement and the other
Loan Documents, as the Administrative Agent or any Lender may reasonably request and (ii)
information and documentation reasonably requested by the Administrative Agent or any Lender
for purposes of compliance with applicable “know your customer” and anti-money laundering
rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation.
Documents required to be delivered pursuant to Section 5.01(a), (b) or (d) may be
delivered electronically and, if so delivered, shall be deemed to have been delivered on the date
(i) on which such materials are publicly available as posted on the Electronic Data Gathering,
Analysis and Retrieval system (▇▇▇▇▇); or (ii) on which such documents are posted on the
Parent ▇▇▇▇▇▇▇▇’s behalf on an Internet or intranet website, if any, to which each Lender and the
Credit Agreement
83
ny-2788047 |
Administrative Agent have access (whether a commercial, third-party website or whether made
available by the Administrative Agent); provided that: (A) upon written request by the
Administrative Agent (or any Lender through the Administrative Agent) to the Parent Borrower,
the Loan Parties shall deliver paper copies of such documents to the Administrative Agent or
such Lender until a written request to cease delivering paper copies is given by the
Administrative Agent or such Lender and (B) the Parent Borrower shall notify the
Administrative Agent (by telecopier or electronic mail) of the posting of any such documents and
provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of
such documents. The Administrative Agent shall have no obligation to request the delivery of or
to maintain paper copies of the documents referred to above, and in any event shall have no
responsibility to monitor compliance by the Loan Parties with any such request by a Lender for
delivery, and each Lender shall be solely responsible for timely accessing posted documents or
requesting delivery of paper copies of such document to it and maintaining its copies of such
documents.
Section 5.02Notices of Material Events. Promptly after it has knowledge thereof, such
Loan Party will furnish to the Administrative Agent and each Lender written notice of the
following:
(a)the occurrence of any Default or Event of Default;
(b)the filing or commencement of any Proceeding by or before any arbitrator
or Governmental Authority against or affecting such Loan Party or any of its Affiliates, including
pursuant to any applicable Environmental Laws, other than any Environmental Liability as to
which there is a reasonable possibility of an adverse determination and that, if adversely
determined, could reasonably be expected to result in a Material Adverse Effect;
(c)the assertion, in writing, of any Environmental Liability by any Person
against, or with respect to the activities of, such Loan Party or any of its Subsidiaries, other than
any Environmental Liability that, if adversely determined, would not (either individually or in
the aggregate) have a Material Adverse Effect;
(d)the receipt by the Parent Borrower of a notification that an Investor (i)
requests that its obligation to fund its Subscription Obligation be excused or otherwise
terminated or (ii) intends to be excused from its Subscription Obligation in whole or in part or
withdraw from the Parent Borrower;
(e)any material change in accounting or financial reporting practices by any
Loan Party;
(f)any change in the information provided in any Beneficial Ownership
Certification delivered to such Lender that would result in a change to the list of beneficial
owners identified in such certification;
(g)[reserved]; and
(h)any other development that results in, or could reasonably be expected to
result in, a Material Adverse Effect.
Credit Agreement
84
ny-2788047 |
Each notice delivered under this Section 5.02 (i) shall be in writing, and (ii) in the case of clauses
(a), (b), (c) or (h) above, shall be accompanied by a statement of a Responsible Officer setting
forth the details of the event or development requiring such notice and any action taken or
proposed to be taken with respect thereto.
Section 5.03Existence; Conduct of Business. Each Loan Party shall, and shall cause
each of its Subsidiaries to, do or cause to be done all things necessary to preserve, renew and
keep in full force and effect its legal existence and the rights, licenses, permits, privileges and
franchises material to the conduct of its business; provided that the foregoing shall not prohibit
any merger, consolidation, liquidation or dissolution permitted under Section 6.03. The Parent
Borrower shall continue to engage only in business of the same general type as now conducted
by the Parent Borrower or as may be contemplated in the Constituent Documents and any
Subsidiary Borrower shall be a single purpose entity that engages only in businesses that qualify
as Approved Uses.
Section 5.04Payment of Obligations. Each Loan Party shall, and shall cause each of its
Subsidiaries to, pay its obligations, including Tax liabilities, that, if not paid, could result in a
Material Adverse Effect before the same shall become delinquent or in default, except where (a)
the validity or amount thereof is being contested in good faith by appropriate proceedings, (b)
such Loan Party or such Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP and (c) the failure to make payment pending such contest
could not reasonably be expected to result in a Material Adverse Effect.
Section 5.05Maintenance of Properties; Insurance. Each Loan Party shall, and shall
cause each of its Subsidiaries to, (a) keep and maintain (or cause to be kept and maintained
through leases at respective Assets) all property material to the conduct of its business in good
working order and condition, ordinary wear and tear excepted, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect, and (b) maintain, with financially sound and reputable insurance companies, insurance in
such amounts and against such risks as are customarily maintained by companies engaged in the
same or similar businesses operating in the same or similar locations, except where the failure to
do so, individually or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.
Section 5.06Books and Records; Inspection. Each Loan Party shall, and shall cause
each of its Subsidiaries to, keep proper books of record and account in which full, true and
correct entries are made of all dealings and transactions in relation to its business and activities.
Each Loan Party shall, and shall cause each of its Subsidiaries to, permit any representatives
designated by the Administrative Agent or any Lender, upon at least three (3) Business Days’
notice, to visit and inspect its properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its officers and independent
accountants (and hereby authorizes the Administrative Agent and each Lender to contact its
independent accountants directly) and to provide contact information for each bank where each
Borrower has a depository and/or securities account and each such Borrower hereby authorizes
the Administrative Agent and each Lender to contact the bank(s) in order to request bank
statements and/or balances, all at such reasonable times and as often as reasonably requested;
provided that, so long as no Event of Default has occurred and is continuing, such inspection
right shall be limited to once per calendar year, unless otherwise authorized by Borrower acting
in its sole discretion; provided further that no Loan Party will be required to disclose or permit
the inspection, examination or making copies or abstracts of any document, information or other
matter (a) that constitutes non-financial trade secrets or non-financial proprietary information; (b)
in respect of which disclosure to the Administrative Agent or any Lender (or their respective
Credit Agreement
85
ny-2788047 |
representatives) is prohibited by applicable law or any binding agreement; or (c) that is subject to
attorney client or similar privilege or constitutes attorney work product; provided further that in
the event that information is withheld in reliance on this sentence, the Loan Parties shall provide
prompt notice that such information is being withheld (to the extent the provision of such notice
is permitted) and shall promptly communicate such information in a manner that would not
violate the applicable confidentiality agreement or Applicable Law, rule or regulation or waive
such attorney-client or similar privilege; provided further that, and for the avoidance of
confusion, the foregoing shall not be deemed to excuse the Loan Parties from delivering any
documentation, information or statements required to be furnished to the Administrative Agent
and the Lenders pursuant to Section 5.01 hereof.
Section 5.07Compliance with Laws. Each Loan Party shall, and shall cause each of its
Subsidiaries to, comply with all laws, rules, regulations and orders of any Governmental
Authority applicable to it or its property (including Environmental Laws, and all zoning and
building codes if applicable to an Asset and ERISA and the rules and regulations thereunder),
except where the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. Such Loan Party will maintain in effect, or be
subject to, and enforce policies and procedures designed to promote and achieve compliance by
such Loan Party, its Subsidiaries and their respective directors, officers, employees and agents
with Anti-Corruption Laws and applicable Sanctions.
Section 5.08Use of Proceeds and Letters of Credit. The proceeds of the Loans will be
used only for Approved Uses. No part of the proceeds of any Loan will be used, whether directly
or indirectly, for any purpose that entails a violation of any of the regulations of the Federal
Reserve Board regulating activities with respect to Margin Stock, including Regulations T, U and
X. Letters of Credit will be issued only to support Approved Uses. No Borrower will request any
Borrowing or Letter of Credit, and no Borrower shall use and shall not procure that its
Subsidiaries and its or their respective directors, officers, employees and agents shall use, the
proceeds of any Borrowing or Letter of Credit (A) in furtherance of an offer, payment, promise
to pay, or authorization of the payment or giving of money, or anything else of value, to any
Person in violation of any Anti-Corruption Laws, (B) for the purpose of funding, financing or
facilitating any activities, business or transaction of or with any Sanctioned Person, or in any
Sanctioned Country, or (C) in any manner that would result in the violation of any Sanctions
applicable to any party hereto.
Section 5.09Subscription Account. The Parent Borrower shall establish and maintain
with the Administrative Agent a Subscription Account into which all Subscription Payments
contributed by the Investors and all monies paid or to be paid by the Investors in connection
with their purchase of shares in the Parent Borrower shall be deposited and maintained until
application of same in accordance with Section 4.03.
Section 5.10Additional Subsidiary Borrowers.
(a)If on or after the Effective Date, the Parent Borrower desires to designate a
Majority-Owned Subsidiary as a Subsidiary Borrower hereunder, the Parent Borrower shall,
prior to such Majority-Owned Subsidiary becoming a Subsidiary Borrower hereunder, cause
such Majority-Owned Subsidiary to duly execute and deliver Subsidiary Borrower Joinder
Documents to the Administrative Agent and satisfy all of the conditions with respect thereto.
Upon a Subsidiary ▇▇▇▇▇▇▇▇’s addition as a Borrower hereunder, such Subsidiary Borrower,
subject to the terms and conditions of this Agreement, may obtain Loans and Letters of Credit to
the extent the Parent Borrower assigns a portion of the Commitments to such Subsidiary
Borrower; provided that any Loans, LC Exposure and Commitments with respect to such
Subsidiary Borrower shall be aggregated with those of the Parent Borrower in determining
Credit Agreement
86
ny-2788047 |
compliance with applicable limits on Borrowings and Letters of Credit hereunder. The
Administrative Agent shall promptly notify each Lender upon a Subsidiary Borrower’s addition
as a Borrower hereunder and shall, upon request by any Lender, provide copies of any Subsidiary
Borrower Joinder Documents in receipt thereof.
(b)At any time and from time to time, but only for so long as no Default shall
then exist, the Parent Borrower may notify the Administrative Agent (each, a “Removal Notice”)
that one (1) or more Subsidiary Borrowers is to be removed as a Borrower hereunder. Such
Removal Notice shall be given to the Administrative Agent at least the same number of Business
Days required for an optional prepayment hereunder prior to the proposed removal date
contained in the Removal Notice and shall be accompanied by a Borrowing Base Certificate
(completed and signed by a Responsible Officer). Upon the Parent Borrower’s compliance with
the foregoing and (i) the Administrative Agent’s receipt of a payment equal to all of such
Subsidiary ▇▇▇▇▇▇▇▇’s Obligations hereunder and (ii) the return to the Issuing Bank of all
outstanding Letters of Credit issued for such Subsidiary Borrower, such Subsidiary Borrower
shall be released from its obligations under this Agreement; provided, however, that any such
release of a Subsidiary Borrower shall only be effective as to Obligations arising after the
applicable removal date.
Section 5.11[Reserved].
Section 5.12Depository Accounts. Each Borrower shall use commercially reasonable
efforts to maintain JPMorgan as their principal depository bank for its and its Subsidiaries’
depository and operating accounts, in each case, over which such Borrower has control; provided
that the foregoing shall not apply in connection with (i) any financing arrangement, to the extent
that accounts are required to be held at another financial institution as a condition to such
financing arrangement or attaining more favorable terms thereunder or as otherwise may be
necessary or desirable in such Borrower’s reasonable discretion or (ii) administering funds
related to any current or prospective Shareholders which are not Investors.
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal of and interest on
each Loan and all fees payable hereunder have been paid in full and all Letters of Credit have
expired or terminated or been cash collateralized and all LC Disbursements shall have been
reimbursed, each Loan Party covenants and agrees with the Lenders that:
Section 6.01Indebtedness. None of the Loan Parties shall create, incur, assume or
permit to exist any Indebtedness, except, subject to Section 6.14:
(a)the Indebtedness created hereunder; and
(b)Indebtedness permitted by the Constituent Documents.
Section 6.02Liens. Each Loan Party shall not, and shall cause each of its Subsidiaries
not to, create, incur, assume or permit to exist any Lien (other than the Lien of the Security
Documents or Permitted Liens) on (a) the right to make Subscription Calls, (b) the Subscription
Obligations or (c) the other Collateral for the Loans and Obligations, other than (i) bankers’
Liens and rights of set-off existing solely with respect to cash, cash equivalents, instruments and
security entitlements on deposit in the Subscription Account or LC Collateral Account, in each
Credit Agreement
87
ny-2788047 |
case arising as a matter of law in favor of the depository, including by virtue of any statutory or
common-law provision relating to bankers’ liens, rights of setoff or similar rights and remedies
as to deposit accounts or to other funds maintained with a depository institution, (ii) Liens related
to taxes, assessments or other governmental charges or levies (i) that are not yet due and payable
or are being diligently contested in good faith and by appropriate proceedings; or (ii) for which
adequate reserves in accordance with GAAP shall have been set aside on the books of such
Person subject to the Lien, and (iii) solely with respect to the portion of Collateral resulting from
the proceeds of the Collateral which have been properly withdrawn from the Subscription
Account in accordance with the terms of the Loan Documents, Liens arising from pledges or
deposits to secure bids for potential investments, leases or contracts in accordance with the terms
of the facility documentation (collectively with clauses (i) through (iii) hereto, “Permitted
Liens”). The Parent Borrower shall not (i) create, incur, assume or permit to exist any Lien on its
interest in any Borrower without the prior consent of the Administrative Agent unless such ▇▇▇▇
is created in favor of a third party in accordance with the financing or acquisition of an Asset or
(ii) consent to any Investor granting a Lien on its ownership interest in the Parent Borrower. The
Management Company shall not create any Lien on its interest in any Borrower.
Section 6.03Fundamental Changes.
(a)Mergers, Consolidations, Disposal of Assets, Etc. No Loan Party shall
enter into any merger or consolidation, unless such Loan Party is the surviving entity, or
liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), terminate, discontinue its
business or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of
transactions, all or any substantial part of its business or property, whether now or hereafter
acquired. Nothing in this Section 6.03 shall be deemed to prohibit (i) the leasing of portions of
Assets in the ordinary course of business for occupancy by the tenants thereunder, (ii) the sale of
Assets in the ordinary course of a ▇▇▇▇▇▇▇▇’s business, (iii) the contribution by a Borrower of
any of its assets (other than the Collateral, unless such transfer is otherwise permitted hereunder)
to a Person in consideration for an Equity Interest in such Person provided (A) such Equity
Interest represents a fair value for the assets so contributed, and (B) notice of such contribution
and the details thereof are given to Administrative Agent at least ten (10) days prior to such
contribution or (iv) the merger or consolidation of a Subsidiary Borrower into the Parent
Borrower or another Subsidiary Borrower.
(b)Restriction on Amendments and Side Letter Agreements. At least fifteen
(15) days prior to materially amending (or causing or permitting to be amended), modifying or
waiving any of the provisions of the Operating Agreement, any Subscription Agreement, any
Side Letter Agreement, or other Constituent Documents of any Loan Party (including those of
the Management Company and any of the Subsidiary Borrowers), or entering into any Side
Letter Agreement, if such amendment, modification or waiver or the entering of such Side Letter
Agreement would constitute a Material Amendment, the Parent Borrower will deliver a written
notice (the “Proposed Modification Notice”) to the Administrative Agent setting forth the
specific details of the proposed amendment, modification and/or waiver or providing the
proposed Side Letter Agreement, as applicable (each, a “Proposed Modification”).
Administrative Agent shall determine, in its sole discretion on Administrative Agent’s good faith
belief, whether such Proposed Modification is a Material Amendment, and shall use reasonable
efforts to notify such Loan Party of its determination within ten (10) Business Days of the date
on which it is deemed to have received the Proposed Modification Notice pursuant to Section
10.01. If Administrative Agent determines that the Proposed Modification is a Material
Amendment, the approval of the Required Lenders and Administrative Agent in their sole and
absolute discretion will be required for such Proposed Modification (unless the approval of all
Lenders is required consistent with the terms of Section 10.02(b)), provided, however, that such
approval from the Required Lenders shall be assumed if the Required Lenders fail to respond
Credit Agreement
88
ny-2788047 |
within ten (10) days, and Administrative Agent shall promptly notify the Lenders of the
Proposed Modification Notice, distributing, as appropriate, the Proposed Modification Notice
and any other relevant information provided by the Parent Borrower. If Administrative Agent
determines that the Proposed Modification is not a Material Amendment, such amendment may
be made without the consent of the Administrative Agent or the Lenders. Notwithstanding the
foregoing, the Parent Borrower may enter into new Subscription Agreements and, to the extent
they do not need approval hereunder or such approval has been obtained, Side Letter Agreements
with Investors to purchase Class A shares or common shares (as applicable) in the Parent
▇▇▇▇▇▇▇▇; provided that the Administrative Agent receives notice thereof no less than ten (10)
Business Days after the delivery of such Subscription Agreements to the Parent Borrower. No
Borrower will change its chief executive office or place of organization unless the Parent
Borrower shall have provided the Administrative Agent with thirty (30) days’ prior written
notice of such change (but in any event, within the period required pursuant to the UCC) and
there shall have been taken such action, reasonably satisfactory to the Administrative Agent, as
may be reasonably necessary to maintain the security interest in, and the Liens upon, the
Collateral granted under the Security Documents at all times fully perfected and in full force and
effect. Each Loan Party will deliver to Administrative Agent, not later than five (5) Business
Days after the effectiveness thereof, a copy of any amendment, supplement, modification or
change to such Loan Party’s Constituent Documents.
Section 6.04Subscription Calls. The Parent Borrower shall not make any Subscription
Calls in contravention of this Agreement. No Subscription Call shall be made unless, within two
(2) Business Days of the delivery of a notice of such Subscription Call to the Investors, (a) the
Parent ▇▇▇▇▇▇▇▇ has provided the Administrative Agent with written notice of such Subscription
Call, (b) the Parent Borrower has provided the Administrative Agent with a Borrowing Base
Certificate, (c) except in the case of a Subscription Call in accordance with Section 4.03(b)(vi),
no Event of Default shall have occurred and be continuing and (d) the proceeds of such
Subscription Call are deposited into the Subscription Account pursuant to Section 5.09. Without
the consent of the Administrative Agent and the Required Lenders as provided in Section
6.03(b), the Parent Borrower shall not waive, amend, modify, cancel, terminate, change, transfer,
repurchase or permit the repurchase or withdrawal in any manner the Subscription Obligation of
any of the Investors or the obligation of any Investor to fund the same pursuant to Subscription
Calls, except in connection with a transfer that is permitted under this Agreement. Prior to the
effectiveness of any such waiver, amendment, modification, cancellation, termination, change,
transfer, repurchase or withdrawal of Subscription Obligations with respect to any Included
Investor that may be approved by the Administrative Agent and the Required Lenders, the
Borrowers shall prepay the Loans (and provide cover for any applicable LC Exposure) (and, to
the extent necessary, the Parent Borrower shall make a Subscription Call to all existing Investors,
including the Investor whose Subscription Obligation is being so affected (and with respect to
such Investor, such Subscription Payment shall have been actually made prior to the
effectiveness of its Subscription Obligation being so affected), in the amount necessary to
prevent the aggregate outstanding amount of the Revolving Credit Exposure of the Lenders from
exceeding the Available Commitment.
Section 6.05Restricted Payments. No Borrower shall make, or agree to pay or make,
directly or indirectly, any Restricted Payment except as permitted under the Constituent
Documents of the Borrowers and, during the existence of any Event of Default if any Loans or L/
C Exposure are outstanding, no Restricted Payments shall be made to any Shareholder.
Notwithstanding anything herein to the contrary, at all times (including during the existence of
any Event of Default and while the Commitments are outstanding), Restricted Payments will be
permitted only to Shareholders which are not Investors (a) so long as the Parent Borrower
determines to remain a “real estate investment trust” under Section 856 of the Code, and (b) in
the minimum amount of Restricted Payments required to be made in order to maintain the Parent
Credit Agreement
89
ny-2788047 |
Borrower’s status as a “real estate investment trust” under Section 856 of the Code, meet the real
estate investment trust distribution requirements set forth in Section 857(a) of the Code, and
avoid the incurrence of entity level taxes under Sections 857(b)(1) and 4981 of the Code.
Notwithstanding anything herein to the contrary, nothing herein shall be deemed to prohibit (i)
the payment of Restricted Payments by any Subsidiary of a Borrower to such Borrower or to any
other Subsidiary of such Borrower, including payments of Restricted Payments by Subsidiary
Borrowers to the Parent Borrower, (ii) consent distributions to Investors or (iii) so long as an
acceleration of the Loans is not then continuing during an Event of Default, repurchases by the
Parent Borrower from the Shareholders.
Section 6.06Environmental Liabilities. Each Borrower shall not, and shall not permit
any of its Subsidiaries to, directly invest in any real property which could reasonably be expected
to expose such Loan Party or any of its Subsidiaries to any Environmental Liability or liability as
a property owner unless the Parent Borrower, any applicable Subsidiary of such Borrower, have
provided the Administrative Agent on behalf of the Lenders with an environmental
indemnification agreement in form and substance reasonably satisfactory to the Administrative
Agent.
Section 6.07Transactions with Affiliates. Each Borrower shall not, and shall not permit
any of its Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or purchase,
lease or otherwise acquire any property or assets from, or make any contribution towards, or
reimbursement for, any federal income taxes payable by any Person or any of its Subsidiaries in
respect of income of such Loan Party (except as provided under Section 6.05), or otherwise
engage in any other transactions with, any of its Affiliates, except transactions in the ordinary
course of business at prices and on terms and conditions not less favorable to such Loan Party or
such Subsidiary than could be obtained on an arm’s length basis from unrelated third parties.
Section 6.08Fiscal Year; Fiscal Quarters. No Loan Party shall change its fiscal year or
any of its fiscal quarters, without the Administrative Agent’s prior written consent, which
consent shall not be unreasonably withheld or delayed.
Section 6.09Employees. No Loan Party shall employ or engage any employees at any
time.
Section 6.10ERISA. No Loan Party shall take any action, or omit to take any action,
which would (a) cause any of such Loan Party’s (or, if applicable, the Parent Borrower’s) Assets
to constitute Plan Assets or (b) assuming no source of funds used to make the Loans constitutes
Plan Assets, cause the transactions contemplated by the Loan Documents to be a nonexempt
prohibited transaction (as such term is defined in Section 4975(c)(1)(A) – (D) of the Code or
Section 406(a) of ERISA).
Section 6.11Delegation of Authority. The Parent Borrower shall not enter into or
permit any contract which impacts the power and authority of the Parent Borrower to make
Subscription Calls or issue Subscription Demand Notices for or on behalf of the Parent Borrower
which is not disclosed to the Administrative Agent. The Parent Borrower shall not delegate or
permit the delegation, to any Person, of the power or authority to make Subscription Calls or
issue Subscription Demand Notices for or on behalf of the Parent Borrower.
Section 6.12Prohibited Transfers.
(a)Transfers of Management Company Interest. The Management Company
shall not (i) transfer, voluntarily, involuntarily, by operation of law or otherwise, all or any part
of its interest in and to the Management Agreement, pursuant to the terms of the Management
Credit Agreement
90
ny-2788047 |
Agreement or otherwise or (ii) permit Principal Financial Group, Inc. transfer of any direct
Equity Interests in the Management Company, except, in each case, with the prior written
consent of the Administrative Agent and the Required Lenders, in their sole and absolute
discretion; provided, however, that the Administrative Agent’s and the Required Lenders’
consents shall not be required for any transfer to Related Parties of the Management Company
(subject to the terms of the Management Agreement and the Operating Agreement).
(b)Transfers of Investor Interests and Substitution of Investors. If the Parent
Borrower shall receive any request for transfer of the interest of any Investor, it shall
immediately notify the Administrative Agent and shall send to the Administrative Agent all
information about such proposed transfer as the Parent Borrower shall receive or otherwise
become aware of. In the event that the Investor proposing to transfer its interest (the
“Transferor”) is an Included Investor, then, prior to the effectiveness of any such transfer, the
Parent Borrower shall request in writing the consent of the Administrative Agent to include the
proposed transferee as an Included Investor, which consent may be granted or withheld in the
Administrative Agent’s sole discretion; provided that in the case that the proposed transferee
does not meet the Applicable Requirement, such proposed transferee shall not be an Included
Investor unless approved by each Lender, which consent may be granted or withheld in each
▇▇▇▇▇▇’s sole and absolute discretion. If the Administrative Agent and the Lenders (to the extent
their approval is required) do not consent to the substitution of the proposed transferee as an
Included Investor, the Borrowers, shall, prior to the effectiveness of any such transfer or
substitution, prepay the Loans (and, to the extent necessary the Parent Borrower shall make a
Subscription Call to all existing Investors, including the Transferor (and with respect to the
Transferor, such Subscription Payment shall have been actually made prior to the effectiveness
of such transfer)), in the amount necessary to prevent the aggregate outstanding amount of the
Revolving Credit Exposure of the Lenders from exceeding the Available Commitment, with such
Available Commitment calculated assuming that the transferee is a Non-Included Investor. In
connection with any transfer by an Investor, the Parent Borrower shall provide to the
Administrative Agent: (i) the transferee’s duly executed and delivered assignment and
assumption agreement of the applicable Subscription Agreement, (ii) with respect to a transferee
that is to become an Included Investor, an Investor Acknowledgment, duly executed and
delivered by the transferee, regardless of whether the transferee is currently an Included Investor
and thus may have previously delivered an Investor Acknowledgment, (iii) with respect to a
transferee that is to become an Included Investor, an opinion of counsel for the transferee in the
form of Exhibit F or such other evidence reasonably satisfactory to the Administrative Agent
addressing (x) the transferee’s authority to enter into the applicable Investor Acknowledgment
and become a partner in the Parent Borrower and (y) in connection with foreign transferees or
transferees with sovereign immunity, the matters addressed in paragraph 5 of Exhibit F, and (iv)
evidence reasonably satisfactory to the Administrative Agent that such transfer will not cause the
assets of any Loan Party to be Plan Assets. Any transfer by an Investor shall not be to a
Sanctioned Person.
Section 6.13[Reserved].
Section 6.14Leverage and Investment Limitations. Notwithstanding anything to the
contrary contained in this Agreement, (a) the ratio of the aggregate principal amount of
Indebtedness of the Parent Borrower and its Subsidiaries on a consolidated basis (excluding the
Obligations) to total assets of the Borrower and its subsidiaries on a consolidated basis (valued at
cost, and excluding the Subscription Obligations) shall not at any time exceed eighty-five percent
(85%), and (b) the Parent Borrower (for itself and the Subsidiary Borrowers) shall at all times
comply with any leverage and investment limitations applicable to the Parent Borrower under its
Constituent Documents; provided, however, none of the foregoing shall waive compliance with
any requirement set forth in Section 6.01.
Credit Agreement
91
ny-2788047 |
Section 6.15Management Fees. No Loan Party shall pay management or similar fees in
connection with the transactions contemplated hereunder except (a) the Management Fee, (b) the
Performance Fee, (c) fees to third parties for property management services or (d) any other fee
or amount pursuant to the Management Agreement as provided as of the date hereof or as
modified in accordance with the terms of this Agreement.
Section 6.16Alternative Investment Vehicles and Parallel Funds; Transfers of
Subscription Obligations. No Loan Party may either (a) transfer the Unfunded Capital
Commitments of any Investor to any Alternative Investment Vehicle or Parallel Fund, or (b)
cause Subscription Obligations to be made to an Alternative Investment Vehicle or Parallel
Fund, in either case, unless such Alternative Investment Vehicle or Parallel Fund has joined the
Loan Documents as a Borrower, or all Lenders are satisfied, in their sole discretion, that such
transfer of Unfunded Capital Commitments or allocation of Subscription Obligations will not
adversely impact the Collateral.
ARTICLE VII
EVENTS OF DEFAULT
Section 7.01Events of Default. If any of the following events (“Events of Default”)
shall occur:
(a)any Borrower shall fail to (i) pay as and when due and payable (A) any
principal on any of its Loans (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise) or (B) any reimbursement obligation in respect of any LC Disbursement,
or (ii) pay when due any interest on any of its Loans or (iii) pay when due any fees or any other
amount payable hereunder or under any other Loan Document, and such failure to pay interest,
fees or such other amounts described in clause (ii) or (iii) of this Section 7.01(a) shall continue
for three (3) Business Days after written notice thereof has been given to the applicable Borrower
by the Administrative Agent;
(b)any representation or warranty made or deemed made by or on behalf of
any Loan Party or any of their Subsidiaries in or in connection with this Agreement or any other
Loan Document or any amendment or modification hereof or thereof, or in any report, certificate,
financial statement or other document furnished pursuant to or in connection with this
Agreement or any other Loan Document or any amendment or modification hereof or thereof,
shall prove to have been incorrect in any material respect when made or deemed made and the
adverse effect of the failure of such representation or warranty shall not, if subject to cure, have
been cured with respect to any representation or warranty, within thirty (30) days after the earlier
of: (i) written notice thereof has been given by the Administrative Agent to the applicable Loan
Parties or (ii) any Responsible Officer of a Loan Party obtains actual knowledge thereof;
(c)any Loan Party shall fail to observe or perform any covenant, condition or
agreement contained in Section 5.01(c), Section 5.02, Section 5.03 (with respect to such Loan
Party’s existence), Section 5.08, Section 5.09 or in Article VI (other than a default with respect
to any notice required pursuant to Section 6.03(a)(iii)(B));
(d)any Loan Party shall fail to observe or perform any covenant, condition or
agreement contained in this Agreement (other than those specified in this Section 7.01, including
Section 7.01(a) or Section 7.01(c)) or any other Loan Document (except to the extent a shorter
time period is provided for in the applicable Loan Document) and such failure shall continue
unremedied for a period of thirty (30) or more days after notice thereof from the Administrative
Agent (given at the request of any Lender) to such Loan Party; provided that in the case of any
Credit Agreement
92
ny-2788047 |
such Default which is susceptible to cure but cannot be cured within thirty (30) days through the
exercise of reasonable diligence, if (i) the Administrative Agent shall not have determined that
such default is not susceptible of being cured within a maximum of ninety (90) days from the
Administrative Agent’s original notice of Default, and (ii) such Loan Party commences such cure
within the initial thirty (30) days period and diligently prosecutes same to completion, such
period of thirty (30) days shall be extended for such additional period of time as may be
reasonably necessary to cure same, but in no event shall such extended period exceed sixty (60)
days;
(e)any one or more Loan Parties and/or any of their Subsidiaries shall fail to
make any payment (whether of principal or interest and regardless of amount) in respect of any
Indebtedness that is Recourse to any one or more Loan Parties in an aggregate amount of
$15,000,000 or more with respect to such Loan Party and their Subsidiaries, when and as the
same shall become due and payable and such default shall continue beyond the giving of any
required notice and the expiration of any applicable grace period;
(f)any event or condition occurs that results in any Indebtedness of any one
or more Loan Parties and/or any of their Subsidiaries that is Recourse to any one or more Loan
Parties in an aggregate amount of $15,000,000 or more with respect to such Loan Parties
becoming due prior to its scheduled maturity or that enables or permits (with or without the
giving of notice, the lapse of time or both) the holder or holders of any such Recourse
Indebtedness or any trustee or agent on its or their behalf to cause any such Recourse
Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity; provided that this Section 7.01(f) shall not apply to
secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property
or assets securing such Indebtedness;
(g)an involuntary proceeding shall be commenced or an involuntary petition
shall be filed seeking (i) liquidation, reorganization or other relief in respect of any Loan Party or
its debts, or of a substantial part of its assets, under any federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official for any Loan Party or for
a substantial part of its assets, and, in any such case, such proceeding or petition shall continue
undismissed for a period of sixty (60) or more days or an order or decree approving or ordering
any of the foregoing shall be entered;
(h)any Loan Party shall (i) voluntarily commence any proceeding or file any
petition seeking liquidation, reorganization or other relief under any federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in effect or admit in writing
its inability or fail generally to pay its debts as they become due, (ii) consent to the institution of,
or fail to contest in a timely and appropriate manner, any proceeding or petition described in
clause (g) of this Section 7.01, (iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for such Loan Party or for a substantial
part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it
in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take
any action for the purpose of effecting any of the foregoing;
(i)[reserved];
(j)one or more judgments for the payment of money in an aggregate amount
in excess of $15,000,000 shall be rendered against any one or more of the Loan Parties alone or
any combination thereof, and the same shall remain undischarged for a period of thirty (30)
consecutive days during which execution shall not be effectively stayed, or any action shall be
Credit Agreement
93
ny-2788047 |
legally taken by a judgment creditor to attach or levy upon any assets of such Loan Party or any
of its Subsidiaries to enforce any such judgment;
(k)[reserved];
(l)[reserved];
(m)the Liens created by the Security Documents shall at any time not
constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the
extent perfection by filing, registration, recordation or possession is required herein or therein) in
favor of the Administrative Agent, free and clear of all other Liens (other than Liens under the
respective Security Documents and Permitted Liens), or, except for expiration in accordance
with its terms, any of the Security Documents shall for whatever reason be terminated or cease to
be in full force and effect (other than due to the Administrative Agent’s failure to file required
financing statements or continuation statements), or the enforceability thereof shall be contested
by any Loan Party;
(n)the Parent Borrower shall default in its material obligations under any
Subscription Agreement;
(o)one or more Investors having Subscription Obligations aggregating fifteen
percent (15%) or greater of the total Subscription Obligations of Investors shall default in their
obligation to fund any portion of their Subscription Obligations under any Subscription
Agreement and/or the Operating Agreement for a period of fifteen (15) days after such payments
are due;
(p)[reserved];
(q)[reserved];
(r)[reserved];
(s)the occurrence of any of the following events: (i) except pursuant to a
transfer permitted pursuant to Section 6.12(a), termination of, voluntarily or involuntarily, the
Management Agreement, or (ii) an event constituting Cause (as such term is defined in the
Management Agreement) shall occur, but subject to applicable notice and cure periods as set
forth in the Management Agreement; or
(t)any material provision of any Loan Document, at any time after its
execution and delivery and for any reason other than as expressly permitted hereunder or
thereunder or satisfaction in full of all Obligations, ceases to be in full force and effect; or any
Loan Party or any other Person contests in writing the validity or enforceability of any provision
of any Loan Document; or any Loan Party which is party to any Loan Document denies in
writing that it has any or further liability or obligation under any Loan Document, or purports in
writing to revoke, terminate or rescind any Loan Document;
Section 7.02Remedies Upon an Event of Default. If an Event of Default occurs (other
than an event with respect to a Borrower described in Sections 7.01(g) and 7.01(h), and at any
time thereafter during the continuance of such Event of Default, the Administrative Agent may
with the consent of the Required Lenders, and shall at the request of the Required Lenders, by
notice to the Borrowers, take any or all of the following actions, at the same or different times:
Credit Agreement
94
ny-2788047 |
(a)terminate the Commitments, and thereupon the Commitments shall
terminate immediately;
(b)declare the Loans then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may thereafter be
declared to be due and payable), and thereupon the principal of the Loans so declared to be due
and payable, together with accrued interest thereon and all fees and other obligations of the
Borrowers accrued hereunder and under any other Loan Document, shall become due and
payable immediately, without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Borrowers;
(c)require that the Borrowers provide cash collateral as required in Section
2.04(k); and
(d)exercise on behalf of itself, the Lenders and the Issuing Banks all rights
and remedies available to it, the Lenders and the Issuing Banks under the Loan Documents and
applicable law.
If an Event of Default described in Section 7.01(g) or 7.01(h) occurs with respect to the
Borrower, the Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and all fees and other obligations of the
Borrowers accrued hereunder and under any other Loan Document including any break funding
payment, shall automatically become due and payable, and the obligation of the Borrowers to
cash collateralize the LC Exposure as provided in clause (c) above shall automatically become
effective, in each case, without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Borrowers.
In addition to any other rights and remedies granted to the Administrative Agent and the
Lenders in the Loan Documents, the Administrative Agent on behalf of the Lenders may exercise
all rights and remedies of a secured party under the New York Uniform Commercial Code or any
other applicable law. Without limiting the generality of the foregoing, the Administrative Agent,
without demand of performance or other demand, presentment, protest, advertisement or notice
of any kind (except any notice required by law referred to below) to or upon any Loan Party or
any other Person (all and each of which demands, defenses, advertisements and notices are
hereby waived by the Borrowers on behalf of itself and its Subsidiaries), may in such
circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part
thereof, or consent to the use by any Credit Party of any cash collateral arising in respect of the
Collateral on such terms as the Administrative Agent deems reasonable, and/or may forthwith
sell, lease, assign give an option or options to purchase or otherwise dispose of and deliver, or
acquire by credit bid on behalf of the Lenders, the Collateral or any part thereof (or contract to do
any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange,
broker’s board or office of the Administrative Agent or any Lender or elsewhere, upon such
terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or
on credit or for future delivery, all without assumption of any credit risk. The Administrative
Agent or any Lender shall have the right upon any such public sale or sales, and, to the extent
permitted by law, upon any such private sale or sales, to purchase the whole or any part of the
Collateral so sold, free of any right or equity of redemption in any Loan Party, which right or
equity is hereby waived and released by each Borrower on behalf of itself and its Subsidiaries.
Credit Agreement
95
ny-2788047 |
Each Borrower further agrees on behalf of itself and its Subsidiaries, at the Administrative
Agent’s request, to assemble the Collateral and make it available to the Administrative Agent at
places which the Administrative Agent shall reasonably select, whether at the premises of such
Borrower, another Loan Party or elsewhere. The Administrative Agent shall apply the net
proceeds of any action taken by it pursuant to this Article VII, after deducting all reasonable
costs and expenses of every kind incurred in connection therewith or incidental to the care or
safekeeping of any of the Collateral or in any other way relating to the Collateral or the rights of
the Administrative Agent and the Lenders hereunder, including reasonable attorneys’ fees and
disbursements, to the payment in whole or in part of the obligations of the Loan Parties under the
Loan Documents, in such order as the Administrative Agent may elect, and only after such
application and after the payment by the Administrative Agent of any other amount required by
any provision of law, including Section 9-615(a)(3) of the New York Uniform Commercial
Code, need the Administrative Agent account for the surplus, if any, to any Loan Party. To the
extent permitted by applicable law, the Borrowers on behalf of themselves and their respective
Subsidiaries waive all Liabilities it may acquire against the Administrative Agent or any Lender
arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or
other disposition of Collateral shall be required by law, such notice shall be deemed reasonable
and proper if given at least 10 days before such sale or other disposition.
Notwithstanding anything to the contrary set forth in the previous paragraph, if at any
time after acceleration of the maturity of the Loans and the other Obligations pursuant to the
previous paragraph, Borrowers shall jointly and severally pay all arrears of interest and all
payments on account of principal of the Obligations which shall have become due otherwise than
by acceleration (with interest on principal and, to the extent permitted by applicable law, on
overdue interest, at the rates specified in this Agreement) and all Events of Default and Defaults
(other than nonpayment of principal of and accrued interest on the Obligations due and payable
solely by virtue of acceleration) shall become remedied or waived to the satisfaction of the
Required Lenders, then by written notice to Borrowers, the Required Lenders may elect, in the
sole discretion of each such Required Lender, to rescind and annul the acceleration and its
consequences. The provisions of the preceding sentence are intended merely to bind all of the
Lenders to a decision which may be made at the election of the Required Lenders, and are not
intended to benefit Borrowers and do not give Borrowers the right to require the Lenders to
rescind or annul any acceleration hereunder, even if the conditions set forth herein are satisfied.
In the event that the Administrative Agent or Required Lenders elect to commence the
exercise of remedies pursuant to this Section 7.02 and/or as elsewhere provided in the Loan
Documents as a result of the occurrence of any Event of Default, the Loan Parties shall cooperate
in good faith with the Administrative Agent to enable the Administrative Agent to issue
Subscription Calls and enforce the payment thereof by the Investors, including but not limited to,
providing contact information for each such Investor (including any updates to Investor names
and notice information) and copies of any Subscription Agreements (including any written
evidence of any increase in the Subscription Obligation of any Investor) and Side Letter
Agreements which have not yet been provided to the Administrative Agent pursuant to the terms
hereof, and adding the Administrative Agent to any incumbency certificates required in
Credit Agreement
96
ny-2788047 |
connection with the making of Subscription Calls on such Investor(s), in each case, within two
(2) Business Days of request.
If any Event of Default occurs (irrespective of whether or not the same consists of an
ongoing condition, a one-time occurrence, or otherwise), the same shall be deemed to continue at
all times thereafter; provided, however, that such Event of Default shall cease to continue only if
Administrative Agent shall accept, in writing, performance of the defaulted obligation or shall
execute and deliver a written agreement in which administrative Agent expressly states that such
Event of Default has ceased to continue. Borrower shall have no right to cure any Event of
Default, and Administrative Agent and Lenders shall not be obligated under any circumstances
whatsoever to accept such cure or performance or to execute and deliver any such writing.
Without limitation, this Section 7.02 shall govern in any case where reference is made in the
Loan Documents to (i) any “cure” (whether by use of such word or otherwise) of any Event of
Default, (ii) “during an Event of Default,” “the continuance of an Event of Default” or “after an
Event of Default has ceased” (in each case, whether by use of such words or otherwise), or (iii)
any condition or event which continues beyond the time when the same becomes an Event of
Default.
Section 7.03Application of Payments. Notwithstanding anything herein to the contrary,
(x) at all times when no Event of Default has occurred and is continuing all payments received
on account of the Obligations from a Borrower shall be applied in accordance with the terms of
Article II and (y) following the occurrence and during the continuance of an Event of Default,
and notice thereof to the Administrative Agent by the Borrowers or the Required Lenders:
(a)all payments received on account of the Obligations shall, subject to
Section 2.20, be applied by the Administrative Agent as follows:
(i)first, to payment of that portion of the Obligations constituting
fees, indemnities, expenses and other amounts payable to the Administrative Agent
(including fees and disbursements and other charges of counsel to the Administrative
Agent payable under Section 9.03 and amounts pursuant to Section 2.10(c) payable to the
Administrative Agent in its capacity as such);
(ii)second, to payment of that portion of the Obligations constituting
fees, expenses, indemnities and other amounts (other than principal, reimbursement
obligations in respect of LC Disbursements, interest and Letter of Credit fees) payable to
the Lenders and the Issuing Bank (including fees and disbursements and other charges of
counsel to the Lenders and the Issuing Bank payable under Section 9.03) arising under
the Loan Documents, ratably among them in proportion to the respective amounts
described in this Section 7.03(a)(ii) payable to them;
(iii)third, to payment of that portion of the Obligations constituting
accrued and unpaid Letter of Credit fees and charges and interest on the Loans and
unreimbursed LC Disbursements, ratably among the Lenders and the Issuing Bank in
proportion to the respective amounts described in this Section 7.03(a)(iii) payable to
them;
(iv)fourth, (A) to payment of that portion of the Obligations
constituting unpaid principal of the Loans and unreimbursed LC Disbursements and (B)
to cash collateralize that portion of LC Exposure comprising the undrawn amount of
Credit Agreement
97
ny-2788047 |
Letters of Credit to the extent not otherwise cash collateralized by the Borrowers pursuant
to Section 2.04 or 2.20, ratably among the Lenders and the Issuing Bank in proportion to
the respective amounts described in this Section 7.03(a)(iv) payable to them; provided
that (1) any such amounts applied pursuant to clause (A) of this Section 7.03(a)(iv) shall
be paid to the Administrative Agent for the ratable account of the Issuing Bank to cash
collateralize Obligations in respect of Letters of Credit, (C) subject to Section 2.04 or
Section 2.20, amounts used to cash collateralize the aggregate amount of Letters of Credit
pursuant to this Section 7.03(a)(iv) shall be used to satisfy drawings under such Letters of
Credit as they occur and (D) upon the expiration of any Letter of Credit (without any
pending drawings), the pro rata share of cash collateral shall be applied to the other
Obligations, if any, in the order set forth in this Section 7.03;
(v)fifth, to the payment in full of all other Obligations, in each case
ratably among the Administrative Agent, the Lenders and the Issuing Bank based upon
the respective aggregate amounts of all such Obligations owing to them in accordance
with the respective amounts thereof then due and payable; and
(vi)finally, the balance, if any, after all Obligations have been
indefeasibly paid in full, to the Borrowers or as otherwise required by law.
(b)If any amount remains on deposit as cash collateral after all Letters of
Credit have either been fully drawn or expired (without any pending drawings), such remaining
amount shall be applied to the other Obligations, if any, in the order set forth above.
Section 7.04Standstill. Notwithstanding anything to the contrary herein or in any Loan
Document, upon the occurrence and during the continuance of an Event of Default and so long as
no Event of Default exists or arises under Section 7.01(g) or 7.01(h) (in which case the
provisions of this Section 7.04 shall be inapplicable), then prior to the Administrative Agent or
any other Secured Party exercising its rights to issue Subscription Calls to the Investors, the
Administrative Agent, on behalf of the Secured Parties, shall be required to give the Parent
Borrower five (5) Business Days’ notice (the “Initial Notice Period”) of its intention to issue
such Subscription Calls and, if, at any time prior to or during such Initial Notice Period, the
Parent Borrower shall issue one or more Subscription Calls to its Investors, then the
Administrative Agent or any other Secured Party shall not issue a Subscription Call to the
Investors until the Business Day following the Initial Payment Date (as defined below); provided
that: (i) such Subscription Call(s) are issued by the Parent Borrower and the Parent Borrower
requires the Investors to fund their related Subscription Obligation within ten (10) Business Days
after the date of delivery of such notice (such tenth (10th) Business Day being the “Initial
Payment Date”); (ii) the Subscription Obligations and all other amounts paid by the Investors in
respect of such Subscription Call are deposited into the Subscription Account; and (iii) the Parent
Borrower directs the Administrative Agent that such Subscription Obligations and other
payments by the Investors in the Subscription Account, together with any other funds held for or
credited to the Parent Borrower in the Subscription Account (including, without limitation,
monies paid by any Shareholders in connection with their purchase of shares in the Parent
Borrower), shall be withdrawn by the Administrative Agent to repay the outstanding Obligations
(other than contingent obligations for which no claim has yet been made) of the Parent Borrower
in their entirety; provided further that nothing in this Section 7.04 shall prohibit the
Administrative Agent or any other Secured Party from exercising any remedies it may have with
respect to (1) the Subscription Account and taking any such actions as may be required to protect
its rights in a bankruptcy proceeding; or (2) any Event of Default pursuant to Section 7.01(g) or
7.01(h) or which was triggered by the failure of the Parent Borrower to issue a notice upon its
Investors following a mandatory prepayment event pursuant to Section 2.09(b) and/or make such
Credit Agreement
98
ny-2788047 |
mandatory prepayment following the receipt of such related Subscription Obligations as required
by this Credit Agreement.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
Section 8.01Authorization and Action.
(a)Each of the Lenders and the Issuing Bank hereby irrevocably appoints the
entity named as Administrative Agent in the heading of this Agreement and its successors and
assigns to serve as the administrative agent under the Loan Documents and each of the Lenders
and the Issuing Bank authorizes the Administrative Agent to take such actions as agent on its
behalf and to exercise such powers under this Agreement and the other Loan Documents as are
delegated to the Administrative Agent under such agreements and to exercise such powers as are
reasonably incidental thereto. Without limiting the foregoing, each of the Lenders and the Issuing
Bank hereby authorizes the Administrative Agent to execute and deliver, and to perform its
obligations under, each of the Loan Documents to which the Administrative Agent is a party, and
to exercise all rights, powers and remedies that the Administrative Agent may have under such
Loan Documents.
(b)As to any matters not expressly provided for herein and in the other Loan
Documents (including enforcement or collection), the Administrative Agent shall not be required
to exercise any discretion or take any action, but shall be required to act or to refrain from acting
(and shall be fully protected in so acting or refraining from acting) upon the written instructions
of the Required Lenders (or such other number or percentage of the Lenders as shall be
necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in
writing, such instructions shall be binding upon each Lender and the Issuing Bank; provided,
however, that the Administrative Agent shall not be required to take any action that (i) the
Administrative Agent in good faith believes exposes it to liability unless the Administrative
Agent receives an indemnification and is exculpated in a manner satisfactory to it from the
Lenders and the Issuing Bank with respect to such action or (ii) is contrary to this Agreement or
any other Loan Document or applicable law, including any action that may be in violation of the
automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization
or relief of debtors or that may effect a forfeiture, modification or termination of property of a
Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or
reorganization or relief of debtors; provided, further, that the Administrative Agent may seek
clarification or direction from the Required Lenders prior to the exercise of any such instructed
action and may refrain from acting until such clarification or direction has been provided. Except
as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty
to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan
Party, any Subsidiary of any Loan Party, or any Affiliate of any of the foregoing that is
communicated to or obtained by the Person serving as Administrative Agent or any of its
Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to
expend or risk its own funds or otherwise incur any financial liability in the performance of any
of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it. Administrative Agent shall not be responsible or have any
liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the
provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality
of the foregoing, Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire
as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified
Credit Agreement
99
ny-2788047 |
Institution or (y) have any liability with respect to or arising out of any assignment or
participation of ▇▇▇▇▇, or disclosure of confidential information, to any Disqualified Institution.
(c)In performing its functions and duties hereunder and under the other Loan
Documents, the Administrative Agent is acting solely on behalf of the Lenders and the Issuing
Bank (except in limited circumstances expressly provided for herein relating to the maintenance
of the Register), and its duties are entirely mechanical and administrative in nature. The
motivations of the Administrative Agent are commercial in nature and not to invest in the general
performance or operations of the Borrowers. Without limiting the generality of the foregoing:
(i)the Administrative Agent does not assume and shall not be deemed
to have assumed any obligation or duty or any other relationship as the agent, fiduciary or
trustee of or for any Lender, the Issuing Bank, or holder of any other obligation other
than as expressly set forth herein and in the other Loan Documents, regardless of whether
a Default or an Event of Default has occurred and is continuing (and it is understood and
agreed that the use of the term “agent” (or any similar term) herein or in any other Loan
Document with reference to the Administrative Agent is not intended to connote any
fiduciary duty or other implied (or express) obligations arising under agency doctrine of
any applicable law, and that such term is used as a matter of market custom and is
intended to create or reflect only an administrative relationship between contracting
parties); additionally, each ▇▇▇▇▇▇ agrees that it will not assert any claim against the
Administrative Agent based on an alleged breach of fiduciary duty by the Administrative
Agent in connection with this Agreement and/or the transactions contemplated hereby;
and
(ii)nothing in this Agreement or any Loan Document shall require the
Administrative Agent to account to any Lender for any sum or the profit element of any
sum received by the Administrative Agent for its own account.
(d)The Administrative Agent may perform any of its duties and exercise its
rights and powers hereunder or under any other Loan Document by or through any one or more
sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-
agent may perform any of their respective duties and exercise their respective rights and powers
through their respective Related Parties. The exculpatory provisions of this Article VIII shall
apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such
sub-agent, and shall apply to their respective activities pursuant to this Agreement. The
Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agent
except to the extent that a court of competent jurisdiction determines in a final and nonappealable
judgment that the Administrative Agent acted with gross negligence or willful misconduct in the
selection of such sub-agent.
(e)The Arranger shall not have any obligations or duties whatsoever in such
capacity under this Agreement or any other Loan Document and shall incur no liability
hereunder or thereunder in such capacity, but shall have the benefit of the indemnities provided
for hereunder.
(f)In case of the pendency of any proceeding with respect to any Loan Party
under any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan or
any other Obligation shall then be due and payable as herein expressed or by declaration or
otherwise and irrespective of whether the Administrative Agent shall have made any demand on
the Loan Parties) shall be entitled and empowered (but not obligated) by intervention in such
proceeding or otherwise:
Credit Agreement
100
ny-2788047 |
(i)to file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans, LC Disbursements and all other
Obligations that are owing and unpaid and to file such other documents as may be
necessary or advisable in order to have the claims of the Lenders, the Issuing Banks and
the Administrative Agent (including any claim under Section 2.10, Section 2.11, Section
2.13, Section 2.15 and Section 9.03) allowed in such judicial proceeding; and
(ii)to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in
any such proceeding is hereby authorized by each Lender and the Issuing Bank to make such
payments to the Administrative Agent and, in the event that the Administrative Agent shall
consent to the making of such payments directly to the Lenders or the Issuing Bank, to pay to the
Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the
Loan Documents (including under Section 9.03). Nothing contained herein shall be deemed to
authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any
Lender or the Issuing Bank any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or the Issuing Bank or to authorize the
Administrative Agent to vote in respect of the claim of any Lender or the Issuing Bank in any
such proceeding.
(g)The provisions of this Article VIII are solely for the benefit of the
Administrative Agent, the Lenders and the Issuing Bank, and, except solely to the extent of each
▇▇▇▇▇▇▇▇’s rights to consent pursuant to and subject to the conditions set forth in this Article
VIII, no Loan Party or Subsidiary of any Loan Party, or any of their respective Affiliates, shall
have any rights as a third party beneficiary under any such provisions.
Section 8.02Required Lender Approval. Each Lender hereby agrees that, except as
otherwise set forth herein, any action taken by the Required Lenders in accordance with the
provisions of this Agreement or the Loan Documents, and the exercise by the Required Lenders
of the powers set forth herein or therein, together with such other powers as are reasonably
incidental thereto, shall be authorized and binding upon all of the Lenders. Nothing herein shall
be construed to deem the Administrative Agent a trustee or fiduciary for any Lender or to impose
on the Administrative Agent duties or obligations other than those expressly provided for herein.
Without limiting the generality of the foregoing, the use of the terms “Administrative Agent”,
“administrative agent”, “agent” and similar terms in the Loan Documents with reference to the
Administrative Agent is not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable law. Instead, use of such terms is
merely a matter of market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.
Section 8.03Administrative Agent’s Reliance, Limitation of Liability, Etc.
(a)Neither the Administrative Agent nor any of its Related Parties shall be (i)
liable to any Lender for any action taken or omitted to be taken by such party, the Administrative
Agent or any of its Related Parties under or in connection with this Agreement or the other Loan
Documents (x) with the consent of or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall
believe in good faith to be necessary, under the circumstances as provided in the Loan
Documents) or (y) in the absence of its own gross negligence or willful misconduct (such
Credit Agreement
101
ny-2788047 |
absence to be presumed unless otherwise determined by a court of competent jurisdiction by a
final and non-appealable judgment) or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by any Loan Party or any officer
thereof contained in this Agreement or any other Loan Document or in any certificate, report,
statement or other document referred to or provided for in, or received by the Administrative
Agent under or in connection with, this Agreement or any other Loan Document or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other
Loan Document (including, for the avoidance of doubt, in connection with the Administrative
Agent’s reliance on any Electronic Signature transmitted by telecopy, emailed .pdf, or any other
electronic means that reproduces an image of an actual executed signature page) or for any
failure of any Borrower to perform its obligations hereunder or thereunder.
(b)The Administrative Agent shall be deemed not to have knowledge of any
(i) notice of any of the events or circumstances set forth or described in Section 5.02 unless and
until written notice thereof stating that it is a “notice under Section 5.02” in respect of this
Agreement and identifying the specific clause under said Section is given to the Administrative
Agent by a Borrower, or (ii) notice of any Default or Event of Default unless and until written
notice thereof stating that it is a “notice of Default” or a “notice of an Event of Default” is given
to the Administrative Agent by a Borrower, a Lender or the Issuing Bank. Further, the
Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with any Loan Document, (ii)
the contents of any certificate, report or other document delivered thereunder or in connection
therewith, (iii) the performance or observance of any of the covenants, agreements or other terms
or conditions set forth in any Loan Document or the occurrence of any Default or Event of
Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of any Loan
Document or any other agreement, instrument or document, (v) the satisfaction of any condition
set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items
(which on their face purport to be such items) expressly required to be delivered to the
Administrative Agent or satisfaction of any condition that expressly refers to the matters
described therein being acceptable or satisfactory to the Administrative Agent, or (vi) the
creation, perfection or priority of Liens on the Collateral. Notwithstanding anything herein to the
contrary, the Administrative Agent shall not be liable for, or be responsible for any Liabilities,
costs or expenses suffered by a Borrower, any Subsidiary or any Lender as a result of, any
determination of the Revolving Credit Exposure, any of the component amounts thereof or any
portion thereof attributable to each Lender.
(c)Without limiting the foregoing, the Administrative Agent (i) may treat the
payee of any promissory note as its holder until such promissory note has been assigned in
accordance with Section 10.04, (ii) may rely on the Register to the extent set forth in Section
10.04(b), (iii) may consult with legal counsel (including counsel to any Loan Party), independent
public accountants and other experts selected by it, and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants
or experts, (iv) makes no warranty or representation to any Lender or the Issuing Bank and shall
not be responsible to any Lender or the Issuing Bank for any statements, warranties or
representations made by or on behalf of any Loan Party in connection with this Agreement or
any other Loan Document, and (v) in determining compliance with any condition hereunder to
the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to
the satisfaction of a Lender or the Issuing Bank, may presume that such condition is satisfactory
to such Lender or the Issuing Bank unless the Administrative Agent shall have received notice to
the contrary from such Lender or the Issuing Bank sufficiently in advance of the making of such
Loan or the issuance of such Letter of Credit, and (vi) shall be entitled to rely on, and shall incur
no liability under or in respect of this Agreement or any other Loan Document by acting upon,
any notice, consent, certificate or other instrument or writing (which writing may be a fax, any
Credit Agreement
102
ny-2788047 |
electronic message, Internet or intranet website posting or other distribution) or any statement
made to it orally or by telephone and believed by it to be genuine and signed or sent or otherwise
authenticated by the proper party or parties (whether or not such Person in fact meets the
requirements set forth in the Loan Documents for being the maker thereof).
(d)Notwithstanding any other provisions of this Agreement or any other Loan
Documents, neither the Administrative Agent nor any of its directors, officers, agents, employees
or counsel shall be liable for any action taken or not taken by it under or in connection with this
Agreement or any other Loan Document, except for its or their own gross negligence or willful
misconduct in connection with its duties expressly set forth herein or therein. Without limiting
the generality of the foregoing, the Administrative Agent: may consult with legal counsel
(including its own counsel or counsel for any Loan Party or any other Person), independent
public accountants and other experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants
or experts. Neither the Administrative Agent nor any of its directors, officers, agents, employees
or counsel:
(i)makes any warranty or representation to any Lender or any other
Person and shall be responsible to any Lender or any other Person for any statement,
warranty or representation made or deemed made by any Loan Party, any Affiliate or any
other Person in or in connection with this Agreement or any other Loan Document;
(ii)shall have any duty to ascertain or to inquire as to the performance
or observance of any of the terms, covenants or conditions of this Agreement or any other
Loan Document or the satisfaction of any conditions precedent under this Agreement or
any Loan Document on the part of any Loan Party, or other Persons or inspect the
property, books or records of any of any Loan Party or any other Person;
(iii)shall be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement or any other
Loan Document, any other instrument or document furnished pursuant thereto or any
Collateral covered thereby or the perfection or priority of any Lien in favor of the
Administrative Agent on behalf of the Lenders in any such Collateral;
(iv)shall have any liability in respect of any recitals, statements,
certifications, representations or warranties contained in any of the Loan Documents or
any other document, instrument, agreement, certificate or statement delivered in
connection therewith; or
(v)shall incur any liability under or in respect of this Agreement or
any other Loan Document by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telephone, facsimile or electronic mail) believed
by it to be genuine and signed, sent or given by the proper party or parties.
The Administrative Agent may execute any of its duties under the Loan Documents by or
through agents, employees or attorneys-in-fact and shall not be responsible for the negligence or
misconduct of any agent or attorney-in-fact that it selects in the absence of gross negligence or
willful misconduct.
Section 8.04Posting Communications.
Credit Agreement
103
ny-2788047 |
(a)Each Loan Party agrees that the Administrative Agent may, but shall not
be obligated to, make any Communications available to the Lenders and the Issuing Bank by
posting the Communications on IntraLinks™, DebtDomain, SyndTrak, ClearPar or any other
electronic platform chosen by the Administrative Agent to be its electronic transmission system
(the “Approved Electronic Platform”).
(b)Although the Approved Electronic Platform and its primary web portal are
secured with generally-applicable security procedures and policies implemented or modified by
the Administrative Agent from time to time (including, as of the Effective Date, a user ID/
password authorization system) and the Approved Electronic Platform is secured through a per-
deal authorization method whereby each user may access the Approved Electronic Platform only
on a deal-by-deal basis, each of the Lenders, the Issuing Bank, and the Loan Parties acknowledge
and agree that the distribution of material through an electronic medium is not necessarily secure,
that the Administrative Agent is not responsible for approving or vetting the representatives or
contacts of any Lender that are added to the Approved Electronic Platform, and that there may be
confidentiality and other risks associated with such distribution. Each of the Lenders, the Issuing
Bank, and the Loan Parties hereby approve distribution of the Communications through the
Approved Electronic Platform and understands and assumes the risks of such distribution.
(c)THE APPROVED ELECTRONIC PLATFORM AND THE
COMMUNICATIONS ARE PROVIDED “AS IS” AND “AS AVAILABLE”. THE
APPLICABLE PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY
OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF THE
APPROVED ELECTRONIC PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR
ERRORS OR OMISSIONS IN THE APPROVED ELECTRONIC PLATFORM AND THE
COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE
APPLICABLE PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE
APPROVED ELECTRONIC PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE
AGENT, THE ARRANGER, OR ANY OF THEIR RESPECTIVE RELATED PARTIES
(COLLECTIVELY, “APPLICABLE PARTIES”) HAVE ANY LIABILITY TO ANY LOAN
PARTY, ANY LENDER, THE ISSUING BANK OR ANY OTHER PERSON OR ENTITY
FOR DAMAGES OF ANY KIND, INCLUDING DIRECT OR INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER
IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF ANY LOAN PARTY’S OR
THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS
THROUGH THE INTERNET OR THE APPROVED ELECTRONIC PLATFORM.
“Communications” means, collectively, any notice, demand, communication, information,
document or other material provided by or on behalf of any Loan Party pursuant to any Loan
Document or the transactions contemplated therein which is distributed by the Administrative
Agent, any Lender or the Issuing Bank by means of electronic communications pursuant to this
Section 8.04, including through an Approved Electronic Platform.
(d)Each Lender and the Issuing Bank agrees that notice to it (as provided in
the next sentence) specifying that Communications have been posted to the Approved Electronic
Platform shall constitute effective delivery of the Communications to such Lender for purposes
of the Loan Documents. Each of the Lenders and the Issuing Bank agrees (i) to notify the
Administrative Agent in writing (which could be in the form of electronic communication) from
time to time of such ▇▇▇▇▇▇’s or the Issuing Bank’s (as applicable) email address to which the
Credit Agreement
104
ny-2788047 |
foregoing notice may be sent by electronic transmission and (ii) that the foregoing notice may be
sent to such email address.
(e)Each of the Lenders, the Issuing Bank and the Loan Parties agrees that the
Administrative Agent may, but (except as may be required by applicable law) shall not be
obligated to, store the Communications on the Approved Electronic Platform in accordance with
the Administrative Agent’s generally applicable document retention procedures and policies.
(f)Nothing herein shall prejudice the right of the Administrative Agent, any
Lender or the Issuing Bank to give any notice or other communication pursuant to any Loan
Document in any other manner specified in such Loan Document.
Section 8.05The Administrative Agent Individually. With respect to its Commitment,
Loans, Letter of Credit Commitments and Letters of Credit, the Person serving as the
Administrative Agent shall have and may exercise the same rights and powers hereunder and is
subject to the same obligations and liabilities as and to the extent set forth herein for any other
Lender or the Issuing Bank, as the case may be. The terms “Issuing Bank”, “Lenders”, “Required
Lenders” and any similar terms shall, unless the context clearly otherwise indicates, include the
Administrative Agent in its individual capacity as a Lender, the Issuing Bank or as one of the
Required Lenders, as applicable. The Person serving as the Administrative Agent and its
Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor
or in any other advisory capacity for and generally engage in any kind of banking, trust or other
business with, any Loan Party, any Subsidiary of any Loan Party or any Affiliate of any of the
foregoing as if such Person was any other bank and without any duty to account therefor to the
other Lenders. Further, the Administrative Agent or any Affiliate thereof may accept fees and
other consideration from any Loan Party for services in connection with this Agreement and
otherwise without having to account for the same to the other Lenders. The Lenders
acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may
receive information regarding any Loan Party or any Affiliate thereof (including information that
may be subject to confidentiality obligations in favor of such Person) and acknowledge that the
Administrative Agent shall be under no obligation to provide such information to them.
Section 8.06Successor Administrative Agent.
(a)The Administrative Agent may resign at any time by giving thirty (30)
days’ prior written notice thereof to the Lenders, the Issuing Bank and the Borrowers, whether or
not a successor Administrative Agent has been appointed. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Administrative Agent. If no
successor Administrative Agent shall have been so appointed by the Required ▇▇▇▇▇▇▇, and shall
have accepted such appointment, within thirty (30) days after the retiring Administrative Agent’s
giving of notice of resignation (the “Resignation Effective Date”), then the retiring
Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor
Administrative Agent, which shall be a bank with an office in New York, New York or an
Affiliate of any such bank. In either case, such appointment shall be subject to the prior written
approval of the Borrowers (which approval may not be unreasonably withheld and shall not be
required while an Event of Default has occurred and is continuing); provided that in no event
may such successor Administrative Agent be a Defaulting Lender. Whether or not a successor
Administrative Agent has been appointed, such resignation will become effective in accordance
with such notice on the Resignation Effective Date.
(b)If the Person serving as Administrative Agent is a Defaulting Lender, the
Required Lenders may, to the extent permitted by applicable law, by notice in writing to the
Loan Parties and such Person, remove such Person as Administrative Agent and, except when an
Credit Agreement
105
ny-2788047 |
Event of Default has occurred and is continuing, with the consent of the Borrowers, such consent
not to be unreasonably withheld or delayed, appoint a successor. If no such successor has been so
appointed by the Required Lenders and has accepted such appointment, within 30 days (or such
earlier day as is agreed by the Required Lenders) (the “Removal Effective Date”), then such
removal will nonetheless become effective in accordance with such notice on the Removal
Effective Date.
(c)With effect from the Resignation Effective Date or the Removal Effective
date, as applicable, upon the acceptance of any appointment as Administrative Agent by a
successor Administrative Agent, such successor Administrative Agent shall succeed to, and
become vested with, all the rights, powers, privileges and duties of the retiring Administrative
Agent. Upon the acceptance of appointment as Administrative Agent by a successor
Administrative Agent, the retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement and the other Loan Documents. Prior to any retiring
Administrative Agent’s resignation ▇▇▇▇▇▇▇▇▇ as Administrative Agent, the retiring
Administrative Agent shall take such action as may be reasonably necessary to assign to the
successor Administrative Agent its rights as Administrative Agent under the Loan Documents.
(d)Notwithstanding Section 8.06(a) or (b), in the event no successor
Administrative Agent shall have been so appointed and shall have accepted such appointment
within thirty (30) days after the retiring Administrative Agent gives notice of its intent to resign,
the retiring Administrative Agent may give notice of the effectiveness of its resignation to the
Lenders, the Issuing Bank and the Borrowers, whereupon, on the date of effectiveness of such
resignation stated in such notice, (i) the retiring Administrative Agent shall be discharged from
its duties and obligations hereunder and under the other Loan Documents; and (ii) the Required
▇▇▇▇▇▇▇ shall succeed to and become vested with all the rights, powers, privileges and duties of
the retiring Administrative Agent; provided that (A) all payments required to be made hereunder
or under any other Loan Document to the Administrative Agent for the account of any Person
other than the Administrative Agent shall be made directly to such Person and (B) all notices and
other communications required or contemplated to be given or made to the Administrative Agent
shall directly be given or made to each Lender and the Issuing Bank. Following the effectiveness
of the Administrative Agent’s resignation from its capacity as such, the provisions of this Article
VIII and Section 9.03, as well as any exculpatory, reimbursement and indemnification provisions
set forth in any other Loan Document, shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while the retiring Administrative Agent was acting
as Administrative Agent.
Section 8.07Acknowledgments of Lenders and Issuing Bank.
(a)Each Lender represents and warrants that (i) the Loan Documents set forth
the terms of a commercial lending facility, (ii) in participating as a Lender, it is engaged in
making, acquiring or holding commercial loans and in providing other facilities set forth herein
as may be applicable to such Lender, in each case in the ordinary course of business and not for
the purpose of investing in the general performance or operations of the Borrowers, or for the
purpose of purchasing, acquiring or holding any other type of financial instrument such as a
security (and each ▇▇▇▇▇▇ agrees not to assert a claim in contravention of the foregoing, such as a
claim under the federal or state securities laws), (iii) it has, independently and without reliance
upon the Administrative Agent, the Arranger, or any other Lender, or any of the Related Parties
of any of the foregoing, and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this Agreement as a Lender,
and to make, acquire or hold Loans hereunder and (iv) it is sophisticated with respect to
decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth
Credit Agreement
106
ny-2788047 |
herein, as may be applicable to such Lender, and either it, or the Person exercising discretion in
making its decision to make, acquire and/or hold such commercial loans or to provide such other
facilities, is experienced in making, acquiring or holding such commercial loans or providing
such other facilities. Each Lender also acknowledges that it will, independently and without
reliance upon the Administrative Agent, the Arranger, or any other Lender, or any of the Related
Parties of any of the foregoing, and based on such documents and information (which may
contain material, non-public information within the meaning of the United States securities laws
concerning the Loan Parties and their Affiliates) as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based upon this
Agreement, any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
(b)Each Lender, by delivering its signature page to this Agreement on the
Effective Date, or delivering its signature page to an Assignment and Assumption or any other
Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have
acknowledged receipt of, and consented to and approved, each Loan Document and each other
document required to be delivered to, or be approved by or satisfactory to, the Administrative
Agent or the Lenders on the Effective Date.
(c)
(i)Each Lender hereby agrees that (x) if the Administrative Agent
notifies such ▇▇▇▇▇▇ that the Administrative Agent has determined in its sole discretion
that any funds received by such ▇▇▇▇▇▇ from the Administrative Agent or any of its
Affiliates (whether as a payment, prepayment or repayment of principal, interest, fees or
otherwise; individually and collectively, a “Payment”) were erroneously transmitted to
such Lender (whether or not known to such Lender), and demands the return of such
Payment (or a portion thereof), such Lender shall promptly, but in no event later than one
Business Day thereafter (or such later date as the Administrative Agent may, in its sole
discretion, specify in writing), return to the Administrative Agent the amount of any such
Payment (or portion thereof) as to which such a demand was made in same day funds,
together with interest ▇▇▇▇▇▇▇ in respect of each day from and including the date such
Payment (or portion thereof) was received by such Lender to the date such amount is
repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation from time to time in effect, and (y) to the extent permitted by
applicable law, such Lender shall not assert, and hereby waives, as to the Administrative
Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to
any demand, claim or counterclaim by the Administrative Agent for the return of any
Payments received, including without limitation any defense based on “discharge for
value” or any similar doctrine. A notice of the Administrative Agent to any Lender under
this Section 8.07(c) shall be conclusive, absent manifest error.
(ii)Each Lender hereby further agrees that if it receives a Payment
from the Administrative Agent or any of its Affiliates (x) that is in a different amount
than, or on a different date from, that specified in a notice of payment sent by the
Administrative Agent (or any of its Affiliates) with respect to such Payment (a “Payment
Notice”) or (y) that was not preceded or accompanied by a Payment Notice, it shall be on
notice, in each such case, that an error has been made with respect to such Payment.
Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment
(or portion thereof) may have been sent in error, such Lender shall promptly notify the
Administrative Agent of such occurrence and, upon demand from the Administrative
Agent, it shall promptly, but in no event later than one Business Day thereafter (or such
Credit Agreement
107
ny-2788047 |
later date as the Administrative Agent may, in its sole discretion, specify in writing),
return to the Administrative Agent the amount of any such Payment (or portion thereof)
as to which such a demand was made in same day funds, together with interest thereon
(except to the extent waived in writing by the Administrative Agent) in respect of each
day from and including the date such Payment (or portion thereof) was received by such
Lender to the date such amount is repaid to the Administrative Agent at the greater of the
NYFRB Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation from time to time in effect.
(iii)Each Loan Party hereby agrees that (x) in the event an erroneous
Payment (or portion thereof) are not recovered from any Lender that has received such
Payment (or portion thereof) for any reason, the Administrative Agent shall be
subrogated to all the rights of such Lender with respect to such amount and (y) an
erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any
Obligations owed by the Borrowers or any other Loan Party.
(iv)Each party’s obligations under this Section 8.07(c) shall survive
the resignation or replacement of the Administrative Agent or any transfer of rights or
obligations by, or the replacement of, a Lender, the termination of the Commitments or
the repayment, satisfaction or discharge of all Obligations under any Loan Document.
Section 8.08Certain ERISA Matters.
(a)Each Lender represents and warrants (as of the date such Person became a
Lender party hereto) and covenants (from the date such Person became a Lender party hereto to
the date such Person ceases being a Lender party hereto) to and for the benefit of the
Administrative Agent, the Arranger and their respective Affiliates (and not, for the avoidance of
doubt, to or for the benefit of any Borrower or other Loan Party) that at least one of the following
is and will be true:
(i)such Lender is not using Plan Assets of one or more Benefit Plan
Investors in connection with the Loans, the Letters of Credit, the Commitments or this
Agreement,
(ii)the transaction exemption set forth in one or more PTEs, such as
PTE 84-14 (a class exemption for certain transactions determined by independent
qualified professional asset managers), PTE 95-60 (a class exemption for certain
transactions involving insurance company general accounts), PTE 90-1 (a class
exemption for certain transactions involving insurance company pooled separate
accounts), PTE 91-38 (a class exemption for certain transactions involving bank
collective investment funds) or PTE 96-23 (a class exemption for certain transactions
determined by in-house asset managers), is applicable and the conditions of such
exemption are satisfied with respect to such ▇▇▇▇▇▇’s entrance into, participation in,
administration of and performance of the Loans, the Letters of Credit, the Commitments
and this Agreement, or
(iii)(A) such Lender is an investment fund managed by a “Qualified
Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such
Qualified Professional Asset Manager made the investment decision on behalf of such
▇▇▇▇▇▇ to enter into, participate in, administer and perform the Loans, the Letters of
Credit, the Commitments and this Agreement, (C) the entrance into, participation in,
administration of and performance of the Loans, the Letters of Credit, the Commitments
and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of
Credit Agreement
108
ny-2788047 |
PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection
(a) of Part I of PTE 84-14 are satisfied with respect to such ▇▇▇▇▇▇’s entrance into,
participation in, administration of and performance of the Loans, the Letters of Credit, the
Commitments and this Agreement.
(b)In addition, unless Section 8.08(a)(i) is true with respect to a Lender or
such Lender has provided another representation, warranty and covenant as provided in Section
8.08(a)(iv), such Lender further represents and warrants (as of the date such Person became a
Lender party hereto) and covenants (from the date such Person became a Lender party hereto to
the date such Person ceases being a Lender party hereto) to and for the benefit of, the
Administrative Agent, the Arranger, and their respective Affiliates (and not, for the avoidance of
doubt, to or for the benefit of any Borrower) that none of the Administrative Agent, the Arranger,
or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender
(including in connection with the reservation or exercise of any rights by the Administrative
Agent under this Agreement, any Loan Document or any documents related to hereto or thereto).
(c)The Administrative Agent, and each Arranger hereby informs the Lenders
that each such Person is not undertaking to provide investment advice or to give advice in a
fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person
has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate
thereof (i) may receive interest or other payments with respect to the Loans, the Letters of Credit,
the Commitments, this Agreement and any other Loan Documents (ii) may recognize a gain if it
extended the Loans, the Letters of Credit or the Commitments for an amount less than the
amount being paid for an interest in the Loans, the Letters of Credit or the Commitments by such
Lender or (iii) may receive fees or other payments in connection with the transactions
contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment
fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees,
administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit
fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees,
term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees
similar to the foregoing.
Section 8.09Collateral Matters.
(a)Except with respect to the exercise of setoff rights in accordance with
Section 10.08 or with respect to a Credit Party’s right to file a proof of claim in an insolvency
proceeding, no Credit Party shall have any right individually to realize upon any of the Collateral
or to enforce any Guarantee of the Obligations, it being understood and agreed that all powers,
rights and remedies under the Loan Documents may be exercised solely by the Administrative
Agent on behalf of the Credit Parties in accordance with the terms thereof.
(b)The Credit Parties irrevocably authorize the Administrative Agent, at its
option and in its discretion, to subordinate any Lien on any property granted to or held by the
Administrative Agent under any Loan Document to the holder of any Lien on such property that
is permitted by Section 6.02. The Administrative Agent shall not be responsible for or have a
duty to ascertain or inquire into any representation or warranty regarding the existence, value or
collectability of the Collateral, the existence, priority or perfection of the Administrative Agent’s
Lien thereon or any certificate prepared by any Loan Party in connection therewith, nor shall the
Administrative Agent be responsible or liable to the Lenders or any other Credit Party for any
failure to monitor or maintain any portion of the Collateral.
Section 8.10Credit Bidding. The Credit Parties hereby irrevocably authorize the
Administrative Agent, at the direction of the Required Lenders, to credit bid all or any portion of
Credit Agreement
109
ny-2788047 |
the Obligations (including by accepting some or all of the Collateral in satisfaction of some or all
of the Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner
purchase (either directly or through one or more acquisition vehicles) all or any portion of the
Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code,
including under Sections 363, 1123 or 1129 of the Bankruptcy Code, or any similar laws in any
other jurisdictions to which a Loan Party is subject, or (b) at any other sale, foreclosure or
acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of)
the Administrative Agent (whether by judicial action or otherwise) in accordance with any
applicable law. In connection with any such credit bid and purchase, the Obligations owed to the
Credit Parties shall be entitled to be, and shall be, credit bid by the Administrative Agent at the
direction of the Required Lenders on a ratable basis (with Obligations with respect to contingent
or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that
shall vest upon the liquidation of such claims in an amount proportional to the liquidated portion
of the contingent claim amount used in allocating the contingent interests) for the asset or assets
so purchased (or for the equity interests or debt instruments of the acquisition vehicle or vehicles
that are issued in connection with such purchase). In connection with any such bid, (i) the
Administrative Agent shall be authorized to form one or more acquisition vehicles and to assign
any successful credit bid to such acquisition vehicle or vehicles, (ii) each of the Credit Parties’
ratable interests in the Obligations which were credit bid shall be deemed without any further
action under this Agreement to be assigned to such vehicle or vehicles for the purpose of closing
such sale, (iii) the Administrative Agent shall be authorized to adopt documents providing for the
governance of the acquisition vehicle or vehicles (provided that any actions by the
Administrative Agent with respect to such acquisition vehicle or vehicles, including any
disposition of the assets or equity interests thereof, shall be governed, directly or indirectly, by,
and the governing documents shall provide for, control by the vote of the Required Lenders or
their permitted assignees under the terms of this Agreement or the governing documents of the
applicable acquisition vehicle or vehicles, as the case may be, irrespective of the termination of
this Agreement and without giving effect to the limitations on actions by the Required Lenders
contained in Section 10.02 of this Agreement), (iv) the Administrative Agent on behalf of such
acquisition vehicle or vehicles shall be authorized to issue to each of the Credit Parties, ratably
on account of the relevant Obligations which were credit bid, interests, whether as equity,
partnership interests, limited partnership interests, shares or membership interests, in any such
acquisition vehicle and/or debt instruments issued by such acquisition vehicle, all without the
need for any Credit Party or acquisition vehicle to take any further action, and (v) to the extent
that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for
any reason (as a result of another bid being higher or better, because the amount of Obligations
assigned to the acquisition vehicle exceeds the amount of Obligations credit bid by the
acquisition vehicle or otherwise), such Obligations shall automatically be reassigned to the
Credit Parties pro rata with their original interest in such Obligations and the equity interests and/
or debt instruments issued by any acquisition vehicle on account of such Obligations shall
automatically be cancelled, without the need for any Credit Party or any acquisition vehicle to
take any further action. Notwithstanding that the ratable portion of the Obligations of each
Credit Party are deemed assigned to the acquisition vehicle or vehicles as set forth in clause (ii)
above, each Credit Party shall execute such documents and provide such information regarding
the Credit Party (and/or any designee of the Credit Party which will receive interests in or debt
instruments issued by such acquisition vehicle) as the Administrative Agent may reasonably
request in connection with the formation of any acquisition vehicle, the formulation or
submission of any credit bid or the consummation of the transactions contemplated by such
credit bid.
Section 8.11Borrower Communications.
Credit Agreement
110
ny-2788047 |
(a)The Administrative Agent, the Lenders and the Issuing Bank agree that a
Borrower may, but shall not be obligated to, make any Borrower Communications to the
Administrative Agent through an electronic platform chosen by the Administrative Agent to be
its electronic transmission system (the “Approved Borrower Portal”).
(b)Although the Approved Borrower Portal and its primary web portal are
secured with generally-applicable security procedures and policies implemented or modified by
the Administrative Agent from time to time (including, as of the Effective Date, a user ID/
password authorization system), each of the Lenders, each of the Issuing Bank and the
▇▇▇▇▇▇▇▇▇ acknowledges and agrees that the distribution of material through an electronic
medium is not necessarily secure, that the Administrative Agent is not responsible for approving
or vetting the representatives or contacts of the Borrowers that are added to the Approved
Borrower Portal, and that there may be confidentiality and other risks associated with such
distribution. Each of the Lenders, each of the Issuing Banks and the Borrowers hereby approves
distribution of Borrower Communications through the Approved Borrower Portal and
understands and assumes the risks of such distribution.
(c)THE APPROVED BORROWER PORTAL IS PROVIDED “AS IS” AND
“AS AVAILABLE”. THE APPLICABLE PARTIES (AS DEFINED BELOW) DO NOT
WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER
COMMUNICATION, OR THE ADEQUACY OF THE APPROVED BORROWER PORTAL
AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE
APPROVED BORROWER PORTAL AND THE BORROWER COMMUNICATIONS. NO
WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-
INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR
OTHER CODE DEFECTS, IS MADE BY THE APPLICABLE PARTIES IN CONNECTION
WITH THE BORROWER COMMUNICATIONS OR THE APPROVED BORROWER
PORTAL. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT, ANY ARRANGER,
ANY CO-DOCUMENTATION AGENT, ANY SYNDICATION AGENT OR ANY OF THEIR
RESPECTIVE APPLICABLE PARTIES HAVE ANY LIABILITY TO ANY LOAN PARTY,
ANY LENDER, ANY ISSUING BANK OR ANY OTHER PERSON OR ENTITY FOR
DAMAGES OF ANY KIND, INCLUDING DIRECT OR INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER
IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWER’S
TRANSMISSION OF BORROWER COMMUNICATIONS THROUGH THE INTERNET OR
THE APPROVED BORROWER PORTAL.
“Borrower Communications” means, collectively, any Borrowing Request, Interest
Election Request, notice of prepayment, notice requesting the issuance, amendment or extension
of a Letter of Credit or other notice, demand, communication, information, document or other
material provided by or on behalf of any Loan Party pursuant to any Loan Document or the
transactions contemplated therein which is distributed by the Borrower to the Administrative
Agent through an Approved Borrower Portal.
(d)Each of the Lenders, each of the Issuing Banks and the Borrowers agrees
that the Administrative Agent may, but (except as may be required by applicable law) shall not
be obligated to, store the Borrower Communications on the Approved Borrower Portal in
accordance with the Administrative Agent’s generally applicable document retention procedures
and policies.
Credit Agreement
111
ny-2788047 |
(e)Nothing herein shall prejudice the right of the Borrowers to give any
notice or other communication pursuant to any Loan Document in any other manner specified in
such Loan Document.
ARTICLE IX
GUARANTEES
Section 9.01Guarantee.
(a)Reserved.
(b)In order to induce the Lenders and the Issuing Bank to extend credit
hereunder, the Parent Borrower hereby absolutely, irrevocably and unconditionally guarantees,
as primary obligor and not merely as surety, all Obligations (including interest accruing during
the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless
of whether allowed or allowable in such proceeding) of the Subsidiary Borrowers (collectively,
the “Guaranteed Obligations”). The Parent ▇▇▇▇▇▇▇▇ agrees that the Guaranteed Obligations may
be extended or renewed, in whole or in part, without notice to or further assent from it, and that it
will remain bound upon its guarantee notwithstanding any extension or renewal of any
Obligation. Each and every default in payment or performance on any Obligation shall give rise
to a separate claim and cause of action hereunder, and separate claims and suits may be made
and brought hereunder as each claim or cause of action arises.
Section 9.02Guaranteed Obligations Not Waived. To the fullest extent permitted by
applicable law, the Parent Borrower waives presentment to, demand of payment from and protest
to any Borrower or to any other guarantor of any of the Guaranteed Obligations, and also waives
notice of acceptance of its guarantee and notice of protest for nonpayment. To the fullest extent
permitted by applicable law, the obligations of the Parent Borrower hereunder shall not be
affected by (a) the failure of any Secured Party to assert any claim or demand or to enforce or
exercise any right or remedy against any Borrower or any other Loan Party under the provisions
of the Loan Documents or otherwise (b) any rescission, waiver, amendment or modification of,
or any release from any of the terms or provisions of any Loan Document or any other
agreement, (c) the release of, or the failure to perfect or maintain the perfection of, or any
impairment of, any security interest in or Lien on any security held by any Secured Party for the
performance of the Obligations or any of them; (d) the failure or delay of any Secured Party for
any reason whatsoever to exercise any right or remedy against, or any release of, any guarantor
of the Obligations or any obligor in respect of any Collateral, including any Investor; (e) the
failure of any Secured Party to assert any claim or demand or to enforce any remedy under any
Loan Document, any guarantee or any other agreement or instrument, including any Investor
Acknowledgment; (f) any default, failure or delay, willful or otherwise, in the performance of
any Obligations; or (g) any other act, omission or delay to do any other act which may or might
in any manner or to any extent vary the risk of the Parent Borrower or otherwise operate as a
discharge of the Parent Borrower as a matter of law or equity or which would impair or eliminate
any right of the Parent Borrower to subrogation.
Section 9.03Guarantee of Payment. The Parent Borrower agrees that its guarantee
hereunder constitutes a guarantee of payment when due and not of collection, that such guarantee
may be enforced at any time and from time to time without any prior demand or enforcement in
respect of any Guaranteed Obligations, and that the Parent Borrower waives any right to require
that any resort be had by any Secured Party to any other guarantee, or to any security held for
payment of any Guaranteed Obligations. The solicitation of, or the delivery by the Parent
Borrower of, any confirmation or reaffirmation of this guarantee under any circumstance shall
Credit Agreement
112
ny-2788047 |
not give rise to any inference as to the continued effectiveness of this guarantee in any other
circumstance in which the confirmation or reaffirmation hereof has not been solicited or has not
been delivered (whether or not solicited), and the obligations of the Parent Borrower hereunder
shall continue in effect as herein provided notwithstanding any solicitation or delivery of any
confirmation or reaffirmation hereof or thereof, or failure to solicit or to deliver (whether or not
solicited) any such confirmation or reaffirmation, under any circumstances.
Section 9.04No Discharge or Diminishment of Guarantee. The obligations of the
Parent Borrower hereunder shall not be subject to any reduction, limitation, impairment or
termination for any reason (other than the payment in full in cash of the Guaranteed Obligations),
including any claim of waiver, release, surrender, amendment, modification, alteration or
compromise of any of the Guaranteed Obligations or of any collateral security or guarantee or
other accommodation in respect thereof, and shall not be subject to any defense or setoff,
counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Guaranteed Obligations or any Loan Document or any provision thereof
(including this guarantee or any provision hereof) or otherwise. Without limiting the generality
of the foregoing, the obligations of the Parent Borrower hereunder shall not be discharged or
impaired or otherwise affected by any change of location, form or jurisdiction of a Borrower or
any other Person, any merger, consolidation or amalgamation of a Borrower or any other Person
into or with any other Person, or any sale, lease or transfer of any of the assets of a Borrower or
any other Person to any other Person, or any other change of form, structure, or status under any
law in respect of a Borrower or any other Person, or any other occurrence, circumstance,
happening or event whatsoever, whether similar or dissimilar to the foregoing, whether foreseen
or unforeseen and any other circumstance that might otherwise constitute a legal or equitable
defense, release, exoneration, or discharge or that might otherwise limit recourse against any
Borrower.
Section 9.05Defenses Waived; Maturity of Guaranteed Obligations. To the fullest
extent permitted by applicable law, the Parent Borrower waive any defense based on or arising
out of any defense of the Borrowers or any other guarantor or the unenforceability of the
Guaranteed Obligations or any part thereof from any cause, or the cessation from any cause of
the liability of the Borrowers or any other guarantor, other than the final payment in full in cash
of the Guaranteed Obligations. The Secured Parties may, at their election, foreclose on any
security held for the Guaranteed Obligations by one or more judicial or nonjudicial sales, accept
an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the
Guaranteed Obligations, make any other accommodation with any Borrower or any other Person
(including any Investor) or exercise any other right or remedy available to them against any
Borrower or any other Person (including any Investor), without affecting or impairing in any way
the liability of the Parent Borrower hereunder except to the extent the Guaranteed Obligations
have been fully and finally paid in cash. To the fullest extent permitted by applicable law, the
Parent Borrower waives any defense arising out of any such election even though such election
operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or
subrogation or other right or remedy of the Parent Borrower against any Borrower or any other
Person, as the case may be, or any security. The Parent ▇▇▇▇▇▇▇▇ agrees that, as between the
Parent Borrower, on the one hand, and the Secured Parties, on the other hand, (i) the maturity of
the Guaranteed Obligations guaranteed hereby may be accelerated for the purposes of the Parent
Borrower’s guarantee herein, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby and (ii)
in the event of any acceleration of such Guaranteed Obligations, such Guaranteed Obligations
(whether or not due and payable) shall forthwith become due and payable in full by the Parent
Borrower for purposes of this Agreement.
Credit Agreement
113
ny-2788047 |
Section 9.06Agreement to Pay; Subordination. In furtherance of the foregoing and not
in limitation of any other right that any Secured Party has at law or in equity against the Parent
Borrower by virtue hereof, upon the failure of any Borrower to pay any Guaranteed Obligation
when and as the same shall become due, whether at maturity, by acceleration, after notice of
prepayment or otherwise, the Parent Borrower hereby promises to and will forthwith pay, or
cause to be paid, in cash the amount of such unpaid Guaranteed Obligation. Upon payment by
the Parent Borrower, as applicable, of any sums as provided above, all rights of the Parent
Borrower against any Borrower or any other Person arising as a result thereof by way of right of
subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be
subordinate and junior in right of payment to the prior payment in full in cash of all the
Guaranteed Obligations. In addition, any Indebtedness of any Borrower now or hereafter held by
the Parent Borrower is hereby subordinated in right of payment to the prior payment in full of the
Guaranteed Obligations. If any amount shall erroneously be paid to the Parent Borrower on
account of (i) such subrogation, contribution, reimbursement, indemnity or similar right or (ii)
any such indebtedness of any Borrower, such amount shall be held in trust for the benefit of the
Secured Parties and shall forthwith be paid to the Administrative Agent to be credited against the
payment of the Guaranteed Obligations, whether matured or unmatured.
Section 9.07Reinstatement. The Parent Borrower further agrees that its obligations
hereunder shall continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any Obligation is rescinded or must otherwise be restored by any
Secured Party upon the bankruptcy or reorganization of any Borrower or otherwise. Nothing
shall discharge or satisfy the liability of the Parent Borrower hereunder except the full
performance and payment in cash of the Obligations.
Section 9.08Instrument for the Payment of Money. The Parent Borrower hereby
acknowledge that the guarantees in this Article IX constitutes an instrument for the payment of
money, and consents and agrees that any Lender or the Administrative Agent, at its sole option,
in the event of a dispute by the Parent Borrower in the payment of any moneys due hereunder,
shall have the right to bring motions and/or actions under New York CPLR Section 3213.
Section 9.09Continuing Guarantees. The guarantees in this Article IX are continuing
guarantees, and shall apply to all Guaranteed Obligations whenever arising.
ARTICLE X
MISCELLANEOUS
Section 10.01Notices.
(a)Except in the case of notices and other communications expressly
permitted to be given by telephone (and subject to Section 10.01(b)), all notices and other
communications provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows:
(i)if to any Borrower, to it at c/o Principal Real Estate Investors,
LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇ (Email:
▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇, Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇) and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (Email:
▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇, Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ (Email: ▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇; Telephone No.
(▇▇▇) ▇▇▇-▇▇▇▇);
Credit Agreement
114
ny-2788047 |
(ii)if to the Administrative Agent or Issuing Bank, to it at JPMorgan
Chase Bank N.A., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇. ▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇, ▇▇,
75024-0239 (Email: ▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇.▇▇▇; Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇), with a
copy to JPMorgan Chase Bank N.A., ▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇ (Email: ▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇; Telephone No. (206)
▇▇▇-▇▇▇▇), with a copy to ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
New York 10019, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ (Email: ▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇; Telephone No.
(▇▇▇) ▇▇▇-▇▇▇▇); and
(iii)if to a Lender, to it at its address (or telecopy number) set forth in
its Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by facsimile shall be deemed to have
been given when sent (except that, if not given during normal business hours for the recipient,
shall be deemed to have been given at the opening of business on the next Business Day for the
recipient). Notices delivered through Approved Electronic Platforms or Approved Borrower
Portals, to the extent provided in Section 10.01(b), shall be effective as provided in said Section
10.01(b).
(b)Notices and other communications to any Borrower, any other Loan Party,
the Lenders, the Administrative Agent and the Issuing Bank hereunder may be delivered or
furnished by Approved Electronic Platforms or Approved Borrower Portals (as applicable)
pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall
not apply to notices pursuant to Article II unless otherwise agreed by the Administrative Agent
and the applicable Lender. The Administrative Agent or any Loan Party may, in its discretion,
agree to accept notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it; provided that approval of such procedures may be limited
to particular notices or communications.
(c)Unless the Administrative Agent otherwise prescribes, (i) notices and
other communications sent to an e-mail address shall be deemed received upon the sender’s
receipt of an acknowledgment from the intended recipient (such as by the “return receipt
requested” function, as available, return e-mail or other written acknowledgment), and (ii)
notices or communications posted to an Internet or intranet website shall be deemed received
upon the deemed receipt by the intended recipient, at its e-mail address as described in clause (i)
of this Section 10.01(c), of notification that such notice or communication is available and
identifying the website address therefor; provided that, for both clauses (i) and (ii) of this Section
10.01(c), if such notice, email or other communication is not sent during the normal business
hours of the recipient, such notice or communication shall be deemed to have been sent at the
opening of business on the next Business Day for the recipient.
(d)Any party hereto may change its address or telecopy number for notices
and other communications hereunder by notice to the other parties hereto (or, in the case of any
such change by a Lender, by notice to the Loan Parties and the Administrative Agent).
Section 10.02Waivers; Amendments.
(a)No Deemed Waivers; Remedies Cumulative. No failure or delay by the
Administrative Agent, the Issuing Bank or any Lender in exercising any right or power
hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such
right or power, or any abandonment or discontinuance of steps to enforce such a right or power,
Credit Agreement
115
ny-2788047 |
preclude any other or further exercise thereof or the exercise of any other right or power. The
rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder are
cumulative and are not exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of this Agreement or consent to any departure by any Loan Party
therefrom shall in any event be effective unless the same shall be permitted by Section 10.02(b),
and then such waiver or consent shall be effective only in the specific instance and for the
purpose for which given. Without limiting the generality of the foregoing, the making of a Loan
or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of
whether the Administrative Agent, any Lender or the Issuing Bank may have had notice or
knowledge of such Default at the time.
(b)Amendments. Except as expressly provided in this Agreement, including
Section 2.12(b) and (c) and Section 10.02(c), neither this Agreement nor any provision hereof
may be waived, amended or modified except pursuant to an agreement or agreements in writing
entered into by the Parent Borrower and the Required Lenders or by the Parent Borrower and the
Administrative Agent with the consent of the Required Lenders; provided that no such agreement
shall (i) increase the Commitment of any Lender without the written consent of such Lender, (ii)
reduce the principal amount of any Loan or LC Disbursement or reduce the rate of interest
thereon, or reduce any fees payable hereunder, without the written consent of each Lender
affected thereby, (iii) postpone the scheduled date of payment of the principal amount of any
Loan or LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the
amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of
any Commitment, without the written consent of each Lender affected thereby, (iv) change
Section 2.07(c) or Section 2.16(b), (c) or (d) in a manner that would alter the ratable reduction of
Commitments or the pro rata sharing of payments required thereby, without the written consent
of each Lender, (v) change the payment waterfall provisions of Section 2.20(b) or Section 7.03
without the written consent of each Lender, (vi) change any of the provisions of this Section
10.02 or the definitions of the term “Required Lenders” or any other provision hereof specifying
the number or percentage of Lenders required to waive, amend or modify any rights hereunder or
make any determination or grant any consent hereunder, without the written consent of each
Lender, (vii) except as otherwise specifically provided in the Loan Documents, release any
material portion of the Collateral without the written consent of each Lender, (viii) release the
Parent Borrower from its obligations under Article IX without the written consent of each
Lender, (ix) change the definitions of the terms “Applicable Requirement”, “Funding Ratio”, or
“Included Investors” in a manner which has the effect of loosening any requirement thereunder
without the written consent of each Lender or (x) change the definition of the term “Available
Commitment”, “Borrowing Base” or “Eligible Contribution” to increase the percentage (above
ninety percent (90%)) of the aggregate of the Unfunded Capital Commitments of the Included
Investors or of any Concentration Limit used to calculate the Available Commitment, Borrowing
Base or Eligible Contribution without the written consent of each Lender; provided further that
(A) no such agreement shall (I) amend, modify or otherwise affect the rights or duties of the
Administrative Agent or the Issuing Bank hereunder without the prior written consent of the
Administrative Agent or the Issuing Bank, as the case may be or (II) amend or modify the
provisions of Section 2.04 without the prior written consent of the Administrative Agent and the
Issuing Bank, respectively, and (B) with respect to clause (vii) of this Section 10.02(b) only, such
release may be made with the consent of the Administrative Agent only with respect to the
release of Collateral relating to Non-Included Investors whose Subscription Obligation, taken in
the aggregate together with the Subscription Obligations of all other Non-Included Investors,
which have previously withdrawn or are then proposing to withdraw, constitutes less than ten
percent (10%) of the aggregate Subscription Obligations of the Non-Included Investors.
(c)Ministerial Amendments. If the Administrative Agent and the Parent
Borrower acting together identify any ambiguity, omission, mistake, typographical error or other
Credit Agreement
116
ny-2788047 |
defect in any provision of this Agreement or any other Loan Document, then the Administrative
Agent and the Parent Borrower shall be permitted to amend, modify or supplement such
provision to cure such ambiguity, omission, mistake, typographical error or other defect, and
such amendment shall become effective without any further action or consent of any other party
to this Agreement.
Section 10.03Expenses; Limitation of Liability; Indemnity; Etc.
(a)Costs and Expenses. The Borrowers shall, jointly and severally, pay (i) all
reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the
Arranger and their Affiliates, including the reasonable and documented fees, charges and
disbursements of counsel for the Administrative Agent and the Arranger, in connection with the
syndication of the credit facilities provided for herein, the preparation and administration of this
Agreement and the other Loan Documents or any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby
shall be consummated), (ii) all reasonable out-of-pocket expenses incurred by the Issuing Bank
in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any
demand for payment thereunder, (iii) all reasonable and documented out-of-pocket expenses
incurred by the Administrative Agent, the Issuing Bank or any Lender, including the fees,
charges and disbursements of any counsel for the Administrative Agent, the Issuing Bank or any
Lender, in connection with the enforcement, collection or protection of its rights in connection
with this Agreement and the other Loan Documents, including its rights under this Section 10.03,
or in connection with the Loans made or Letters of Credit issued hereunder, including all such
reasonable and documented out-of-pocket expenses incurred in connection with any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit and (iv) and all costs,
expenses, assessments and other charges incurred in connection with any filing, registration,
recording or perfection of any security interest contemplated by any Security Documents or any
other document referred to therein (including any lien searches that the Administrative Agent
obtains).
(b)Limitation of Liability. To the extent permitted by applicable law (i) each
Loan Party shall not assert, and each Loan Party hereby waives, any claim against the
Administrative Agent, any Arranger, the Issuing Bank and any Lender, and any Related Party of
any of the foregoing Persons (each such Person being called a “Lender-Related Person”) for any
Liabilities arising from the use by others of information or other materials (including, without
limitation, any personal data) obtained through telecommunications, electronic or other
information transmission systems (including the Internet, any Approved Electronic Platform and
any Approved Borrower Portal) and (ii) no party hereto shall assert, and each such party hereby
waives, any Liabilities against any other party hereto, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out
of, in connection with, or as a result of, this Agreement, any other Loan Document or any
agreement or instrument contemplated hereby or thereby, the Transactions, any Loan or Letter of
Credit or the use of the proceeds thereof; provided that, nothing in this Section 10.03(b) shall
relieve any Loan Party of any obligation it may have to indemnify an Indemnitee, as provided in
Section 10.03(c), against any special, indirect, consequential or punitive damages asserted
against such Indemnitee by a third party.
(c)Indemnification by the Loan Parties. Each Loan Party shall indemnify the
Administrative Agent, the Issuing Bank, each Lender, the Arranger and each Related Party of
any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold
each Indemnitee harmless from, any and all Liabilities and related expenses, including the
reasonable and documented fees, charges and disbursements of any counsel for any Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of
Credit Agreement
117
ny-2788047 |
(i) the execution or delivery of this Agreement, any other Loan Document or any agreement or
instrument contemplated hereby or thereby, the performance by the parties hereto of their
respective obligations hereunder or thereunder or the consummation of the Transactions or any
other transactions contemplated hereby (the liability of the Borrowers under this clause (i) to be
joint and several), (ii) any action taken in connection with this Agreement, including, but not
limited to, the payment of principal, interest and fees, (iii) any Loan to a Borrower or Letter of
Credit for the account of a Borrower or the use of the proceeds therefrom (including any refusal
by the Issuing Bank to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms of such Letter of
Credit), (iv) any payments that the Administrative Agent is required to make under any
indemnity issued to any bank to which remittances in respect of the Subscription Account are to
be made, (v) any actual or alleged presence or release of Hazardous Materials on or from any
property owned or operated by such Loan Party or any of its Subsidiaries, or any Environmental
Liability related in any way to such Loan Party or any of its Subsidiaries, or (vi) any actual or
prospective Proceeding relating to any of the foregoing, whether or not such Proceeding is
brought by any Loan Party or its equity holders, Affiliates, creditors or any other third Person
and whether based on contract, tort or any other theory and regardless of whether any Indemnitee
is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such Liabilities or related expenses resulted primarily from the bad faith, gross
negligence or willful misconduct of such Indemnitee. This Section 10.03(c) shall not apply with
respect to Taxes other than any Taxes that represent losses, claims or damages arising from any
non-Tax claim.
(d)Reimbursement by ▇▇▇▇▇▇▇. Each Lender severally agrees to pay any
amount required to be paid by the Loan Parties under paragraphs (a), (b) or (c) of this Section
10.03 to the Administrative Agent and each Issuing Bank, and each Related Party of any of the
foregoing Persons (each, an “Agent-Related Person”) (to the extent not reimbursed by the Loan
Parties and without limiting the obligation of the Loan Parties to do so), ratably according to
their respective Applicable Percentage in effect on the date on which such payment is sought
under this Section 10.03 (or, if such payment is sought after the date upon which the
Commitments shall have terminated and the Loans shall have been paid in full, ratably in
accordance with such Applicable Percentage immediately prior to such date), from and against
any and all Liabilities and related expenses, including the fees, charges and disbursements of any
kind whatsoever that may at any time (whether before or after the payment of the Loans) be
imposed on, incurred by or asserted against such Agent-Related Person in any way relating to or
arising out of the Commitments, this Agreement, any of the other Loan Documents or any
documents contemplated by or referred to herein or therein or the transactions contemplated
hereby or thereby or any action taken or omitted by such Agent-Related Person under or in
connection with any of the foregoing; provided that the unreimbursed expense or Liability or
related expense, as the case may be, was incurred by or asserted against such Agent-Related
Person in its capacity as such; provided further that no Lender shall be liable for the payment of
any portion of such Liabilities, costs, expenses or disbursements that are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted primarily from such
Agent-Related Person’s bad faith, gross negligence or willful misconduct. The agreements in this
Section 10.03 shall survive the termination of this Agreement and the payment of the Loans and
all other amounts payable hereunder.
(e)Payments. All amounts due under this Section 10.03 shall be payable not
later than ten (10) days after written demand therefor.
Section 10.04Successors and Assigns.
Credit Agreement
118
ny-2788047 |
(a)The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns permitted hereby
(including any Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) no
Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the
prior written consent of each Lender (and any attempted assignment or transfer by a Borrower
without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer
its rights or obligations hereunder except in accordance with this Section 10.04. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby (including any Affiliate
of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in
Section 10.04(c)) and, to the extent expressly contemplated hereby, the Related Parties of each of
the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy
or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in Section 10.04(b)(ii) below, any
Lender may assign to one or more Persons (other than an Ineligible Institution unless an Event of
Default shall have occurred and be continuing for thirty (30) days or more at the time of such
assignment) all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment, participations in Letters of Credit and the Loans at the time owing to
it) with the prior written consent (such consent not to be unreasonably withheld) of:
(A)the Parent Borrower, provided that, the Parent Borrower
shall be deemed to have consented to an assignment of all or a portion of the
Loans and Commitments unless it shall have objected thereto by written notice to
the Administrative Agent within ten (10) Business Days after having received
notice thereof; provided further that no consent of the Parent Borrower shall be
required for an assignment to a Lender, an Affiliate of a Lender, an Approved
Fund or, if any Event of Default under Section 7.01(a), 7.01(g) or 7.01(h) has
occurred and is continuing, any other assignee;
(B)the Administrative Agent, provided that no consent of the
Administrative Agent shall be required for an assignment of any Commitment to
an assignee that is a Lender (other than a Defaulting Lender) with a Commitment
immediately prior to giving effect to such assignment; and
(C)the Issuing Bank; provided that no consent of the Issuing
Bank shall be required if (x) an Event of Default occurs with respect to the
Borrower under Section 7.01(g) or 7.01(h) and (y) such Issuing Bank has no
outstanding Letters of Credit at that time.
(i)Assignments shall be subject to the following additional
conditions:
(A)except in the case of an assignment to a Lender or an
Affiliate of a Lender or an assignment of the entire remaining amount of the
assigning ▇▇▇▇▇▇’s Commitment or Loans, the amount of the Commitment or
Loans of the assigning Lender subject to each such assignment (determined as of
the date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $5,000,000 unless
each of the Parent Borrower and the Administrative Agent otherwise consent,
provided that no such consent of the Parent Borrower shall be required if an Event
of Default has occurred and is continuing;
Credit Agreement
119
ny-2788047 |
(B)each partial assignment shall be made as an assignment of a
proportionate part of all the assigning ▇▇▇▇▇▇’s rights and obligations under this
Agreement;
(C)the parties to each assignment shall execute and deliver to
the Administrative Agent (x) an Assignment and Assumption or (y) to the extent
applicable, an agreement incorporating an Assignment and Assumption by
reference pursuant to an Approved Electronic Platform as to which the
Administrative Agent and the parties to the Assignment and Assumption are
participants), together with a processing and recordation fee of $3,500;
(D)the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire in which the assignee
designates one or more credit contacts to whom all syndicate-level information
(which may contain material non-public information about the Loan Parties and
their related parties or their respective securities) will be made available and who
may receive such information in accordance with the assignee’s compliance
procedures and applicable laws, including federal and state securities laws; and
(E)in connection with any assignment hereunder, to the extent
requested by any new Lender(s), the Parent Borrower will use reasonable efforts
to cause a reliance letter or new opinion letter to be issued in favor of such new
Lender(s) from any law firm who delivered a legal opinion in favor of the Lenders
on the Effective Date which does not, by its terms, permit such new Lender(s) to
rely on such opinion.
(ii)Subject to acceptance and recording thereof pursuant to Section
10.04(b)(iv), from and after the effective date specified in each Assignment and
Assumption the assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and obligations of
a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and Assumption
covering all of the assigning ▇▇▇▇▇▇’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of
Section 2.13, Section 2.14, Section 2.15 and Section 10.03). Any assignment or transfer
by a Lender of rights or obligations under this Agreement that does not comply with this
Section 10.04 shall be treated for purposes of this Agreement as a sale by such Lender of
a participation in such rights and obligations in accordance with Section 10.04(c).
(iii)The Administrative Agent, acting solely for this purpose as an
agent of the Borrowers (such agency being solely for tax purposes), shall maintain at one
of its offices a copy of each Assignment and Assumption delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the Commitment of, and
principal amount (and stated interest) of the Loans and LC Disbursements owing to, each
Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the
Register shall be conclusive, and, absent manifest error, Borrower, the Administrative
Agent, the Issuing Bank and the Lenders shall treat each Person whose name is recorded
in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be available for
inspection by ▇▇▇▇▇▇▇▇▇, the Issuing Bank and any Lender, at any reasonable time and
from time to time upon reasonable prior notice. The Register shall be available for
Credit Agreement
120
ny-2788047 |
inspection by any Borrower and any Lender, at any reasonable time and from time to
time upon reasonable prior notice.
(iv)Upon its receipt of (x) a duly completed Assignment and
Assumption executed by an assigning ▇▇▇▇▇▇ and an assignee or (y) to the extent
applicable, an agreement incorporating an Assignment and Assumption by reference
pursuant to an Approved Electronic Platform as to which the Administrative Agent and
the parties to the Assignment and Assumption are participants), the assignee’s completed
Administrative Questionnaire (unless the assignee shall already be a Lender hereunder),
the processing and recordation fee referred to in this Section 10.04(b) and any written
consent to such assignment required by this Section 10.04(b), the Administrative Agent
shall accept such Assignment and Assumption and record the information contained
therein in the Register; provided that if either the assigning Lender or the assignee shall
have failed to make any payment required to be made by it hereunder, the Administrative
Agent shall have no obligation to accept such Assignment and Assumption and record the
information therein in the Register unless and until such payment shall have been made in
full, together with all accrued interest thereon. No assignment shall be effective for
purposes of this Agreement unless it has been recorded in the Register as provided in
clause (iv) of this Section 10.04(b).
(c)Participations. Any Lender may, without the consent of, or notice to, any
Loan Party, the Administrative Agent or the Issuing Bank, sell participations to one or more
banks or other entities (a “Participant”), other than an Ineligible Institution (unless an Event of
Default shall have occurred and be continuing for thirty (30) days or more at the time of such
participation), in all or a portion of such Lender’s rights and/or obligations under this Agreement
and the other Loan Documents (including all or a portion of its Commitment and/or the Loans
owing to it); provided that (i) such Lender’s obligations under this Agreement and the other Loan
Documents shall remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) Borrowers, the Administrative
Agent, the Issuing Bank and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under this Agreement and
the other Loan Documents. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to enforce this Agreement
and the other Loan Documents and to approve any amendment, modification or waiver of any
provision of this Agreement or any other Loan Document; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the Participant, agree to
any amendment, modification or waiver described in the first proviso to Section 10.02(b) that
affects such Participant. Each Borrower agrees that each Participant shall be entitled to the
benefits of Section 2.13, Section 2.14 and Section 2.15 (subject to the requirements and
limitations therein, including the requirements under Section 2.15(f) (it being understood that the
documentation required under Section 2.15(f) shall be delivered to the participating Lender)) to
the same extent as if it were a Lender and had acquired its interest by assignment pursuant to
Section 10.04(b); provided that such Participant (A) agrees to be subject to the provisions of
Section 2.17 as if it were an assignee under Section 10.04(b); and (B) shall not be entitled to
receive any greater payment under Section 2.13 or Section 2.15, with respect to any
participation, than its participating Lender would have been entitled to receive, except to the
extent such entitlement to receive a greater payment results from a Change in Law that occurs
after the Participant acquired the applicable participation. Each Lender that sells a participation
agrees, at the Borrowers’ request and expense, to use reasonable efforts to cooperate with the
Borrowers to effectuate the provisions of Section 2.17(b) with respect to any Participant. To the
extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as
though it were a Lender; provided that such Participant agrees to be subject to Section 2.16(d) as
though it were a Lender. Each Lender that sells a participation shall, acting solely for this
Credit Agreement
121
ny-2788047 |
purpose as a non-fiduciary agent of the Borrowers (such agency being solely for tax purposes),
maintain a register on which it enters the name and address of each Participant and the principal
amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under
the Loan Documents (the “Participant Register”); provided that no Lender shall have any
obligation to disclose all or any portion of the Participant Register (including the identity of any
Participant or any information relating to a Participant’s interest in any Commitments, Loans,
Letters of Credit or its other obligations under any Loan Document) to any Person except to the
extent that such disclosure is necessary to establish that such Commitment, Loan, Letter of
Credit or other obligation is in registered form under Section 5f.103-1(c) of the United States
Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest
error, and such Lender shall treat each Person whose name is recorded in the Participant Register
as the owner of such participation for all purposes of this Agreement notwithstanding any notice
to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as
Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d)Certain Pledges. Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure obligations of such
Lender, including any such pledge or assignment to secure obligations to a Federal Reserve
Bank, and this Section 10.04 shall not apply to any such pledge or assignment of a security
interest; provided that no such pledge or assignment of a security interest shall release a Lender
from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
(e)No Assignments to Loan Parties or Affiliates. Anything in this Section to
the contrary notwithstanding, no Lender may assign or participate any interest in any Loan or LC
Exposure held by it hereunder to any Loan Party or any of their respective Affiliates or
Subsidiaries without the prior consent of each Lender.
(f)Disqualified Institutions.
(i)No assignment shall be made to any Person that was a Disqualified
Institution as of the date (the “Trade Date”) on which the applicable Lender entered into a
binding agreement to sell and assign all or a portion of its rights and obligations under
this Agreement to such Person (unless (a) an Event of Default has occurred and is
continuing or (b) Parent Borrower has consented to such assignment as otherwise
contemplated by this Section 10.04, in which case such Person will not be considered a
Disqualified Institution for the purpose of such assignment). Any assignment in violation
of this clause (f)(i) shall not be void, but the other provisions of this clause (f) shall apply.
(ii)If any assignment is made to any Disqualified Institution without
the existence of an Event of Default or Parent ▇▇▇▇▇▇▇▇’s prior consent in violation of
clause (f)(i) above Parent Borrower may, at its sole expense and effort, upon notice to the
applicable Disqualified Institution and Administrative Agent, (A) in the case of
outstanding Loans held by Disqualified Institutions, prepay such Loan by paying the
lesser of (x) the principal amount thereof and (y) the amount that such Disqualified
Institution paid to acquire such Loans, in each case plus accrued interest, accrued fees
and all other amounts (other than principal amounts) payable to it hereunder and under
the other Loan Documents and/or (B) require such Disqualified Institution to assign and
delegate, without recourse (in accordance with and subject to the restrictions contained in
this Section 10.04), all of its interest, rights and obligations under this Agreement and
related Loan Documents to an assignee that shall assume such obligations at the lesser of
(x) the principal amount thereof and (y) the amount that such Disqualified Institution paid
to acquire such interests, rights and obligations, in each case plus accrued interest,
Credit Agreement
122
ny-2788047 |
accrued fees and all other amounts (other than principal amounts) payable to it hereunder
and other the other Loan Documents; provided that (i) Parent Borrower shall have paid
to Administrative Agent the assignment fee (if any) specified in Section 10.04, (ii) such
assignment does not conflict with applicable laws and (iii) in the case of clause (B), the
Parent Borrower shall not use the proceeds from any Loans to prepay Loans held by
Disqualified Institutions.
(iii)Notwithstanding anything to the contrary contained in this
Agreement, Disqualified Institutions (A) will not (x) have the right to receive
information, reports or other materials provided to Lenders by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Administrative Agent or any other Lender, (y) attend or participate in meetings attended
by the Lenders and Administrative Agent, or (z) access any electronic site established for
the Lenders or confidential communications from counsel to or financial advisors of
Administrative Agent or the Lenders and (B)(x) for purposes of any consent to any
amendment, waiver or modification of, or any action under, and for the purpose of any
direction to Administrative Agent or any Lender to undertake any action (or refrain from
taking any action) under this Agreement or any other Loan Document, each Disqualified
Institution will be deemed to have consented in the same proportion as the Lenders that
are not Disqualified Institutions consented to such matter, and (y) for purposes of voting
on any plan of reorganization or plan of liquidation pursuant to any debtor relief laws
(“Plan of Reorganization”), each Disqualified Institution party hereto ▇▇▇▇▇▇ agrees
(1) not to vote on such Plan of Reorganization, (2) if such Disqualified Institution does
vote on such Plan of Reorganization notwithstanding the restriction in the foregoing
clause (1), such vote will be deemed not to be in good faith and shall be “designated”
pursuant to Section 1126(e) of the Bankruptcy Code (or any similar provision in any
other debtor relief laws), and such vote shall not be counted in determining whether the
applicable class has accepted or rejected such Plan of Reorganization in accordance with
Section 1126(c) of the Bankruptcy Code (or any similar provision in any other debtor
relief laws) and (3) not to contest any request by any party for a determination by the
Bankruptcy Court (or other applicable court of competent jurisdiction) effectuating the
foregoing clause (2).
Section 10.05Survival. All covenants, agreements, representations and warranties made
by the Loan Parties herein and in the other Loan Documents and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement or any other Loan
Documents shall be considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans and issuance
of any Letters of Credit, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent, the Issuing Bank or any Lender may
have had notice or knowledge of any Default or incorrect representation or warranty at the time
any credit is extended hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee or any other amount payable under
this Agreement is outstanding and unpaid (other than contingent liabilities not yet due and
owing) or any Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated or been cash collateralized. The provisions of Section 2.13, Section 2.14, Section
2.15, Section 8.04, Section 8.05 and Section 10.03 and Article VIII shall survive and remain in
full force and effect regardless of the consummation of the transactions contemplated hereby, the
repayment of the Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
Section 10.06Counterparts; Integration; Effectiveness. This Agreement may be executed
in counterparts (and by different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract. This
Credit Agreement
123
ny-2788047 |
Agreement, the other Loan Documents and any separate letter agreements with respect to fees
payable to the Administrative Agent constitute the entire contract between and among the parties
relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received counterparts
hereof which, when taken together, bear the signatures of each of the other parties hereto, and