CREDIT AGREEMENT Dated as of October 22, 2019 by and among HC GOVERNMENT REALTY HOLDINGS, L.P., as the Borrower, HC GOVERNMENT REALTY TRUST INC., HOLMWOOD PORTFOLIO HOLDINGS, LLC, AND CERTAIN SUBSIDIARIES OF THE BORROWER, as Guarantors THE LENDERS...
Exhibit 6.20
Dated
as of October 22, 2019
by and
among
HC GOVERNMENT REALTY HOLDINGS, L.P.,
as the
Borrower,
HC GOVERNMENT REALTY TRUST INC.,
HOLMWOOD PORTFOLIO HOLDINGS, LLC,
AND CERTAIN SUBSIDIARIES OF THE BORROWER,
as
Guarantors
THE LENDERS FROM TIME TO TIME PARTY HERETO,
and
KEYBANK
NATIONAL ASSOCIATION,
as
Administrative Agent
with
KEYBANC
CAPITAL MARKETS INC.,
as Sole
Bookrunner and Lead Arranger
TABLE OF CONTENTS
|
Article I. DEFINITIONS
|
1
|
|
|
Section
1.1
|
Definitions; General.
|
1
|
|
Section
1.2
|
General; References to Times.
|
39
|
|
Section
1.3
|
Financial Attributes of Non-Wholly-Owned Subsidiaries and
Unconsolidated Affiliates.
|
39
|
|
Article II. CREDIT FACILITIES
|
40
|
|
|
Section
2.1
|
Revolving Loans.
|
40
|
|
Section
2.2
|
Letters of Credit.
|
41
|
|
Section
2.3
|
Swingline Loans.
|
44
|
|
Section
2.4
|
Rates and Payment of Interest and Late Charges on
Loans.
|
46
|
|
Section
2.5
|
Number of Interest Periods.
|
47
|
|
Section
2.6
|
Repayment of Loans.
|
47
|
|
Section
2.7
|
Prepayments.
|
48
|
|
Section
2.8
|
Continuation.
|
49
|
|
Section
2.9
|
Conversion.
|
49
|
|
Section
2.10
|
Notes.
|
49
|
|
Section
2.11
|
Voluntary Reductions of the Revolving Commitments.
|
50
|
|
Section
2.12
|
Expiration or Maturity Date of Letters of Credit Past Maturity
Date.
|
50
|
|
Section
2.13
|
Extension of Maturity Date.
|
51
|
|
Section
2.14
|
Amount Limitations.
|
51
|
|
Section
2.15
|
Expansion Option.
|
52
|
|
Section
2.16
|
Funds Transfer Disbursements.
|
53
|
|
Article
III. PAYMENTS, FEES AND OTHER GENERAL
PROVISIONS
|
54
|
|
|
Section
3.1
|
Payments.
|
54
|
|
Section
3.2
|
Pro Rata Treatment.
|
55
|
|
Section
3.3
|
Sharing of Payments, Etc.
|
56
|
|
Section
3.4
|
Several Obligations.
|
56
|
|
Section
3.5
|
Minimum Amounts.
|
56
|
|
Section
3.6
|
Fees.
|
57
|
|
Section
3.7
|
Computations.
|
58
|
|
Section
3.8
|
Usury.
|
58
|
|
Section
3.9
|
Agreement Regarding Interest and Charges.
|
58
|
|
Section
3.10
|
Statements of Account.
|
59
|
|
Section
3.11
|
Defaulting Lenders.
|
59
|
|
Section
3.12
|
Taxes; Foreign Lenders.
|
62
|
|
Article IV. YIELD PROTECTION, ETC.
|
67
|
|
|
Section
4.1
|
Additional Costs; Capital Adequacy.
|
67
|
|
Section
4.2
|
Suspension of LIBOR Loans.
|
68
|
|
Section
4.3
|
[Reserved].
|
70
|
|
Section
4.4
|
Compensation.
|
70
|
|
Section
4.5
|
Affected Lenders and Non-Consenting Lenders.
|
71
|
|
Section
4.6
|
Treatment of Affected Loans.
|
71
|
i
|
Section
4.7
|
Change of Lending Office.
|
72
|
|
Section
4.8
|
Assumptions Concerning Funding of LIBOR Loans.
|
72
|
|
Article
V. BORROWING BASE PROPERTIES
|
72
|
|
|
Section
5.1
|
Initial Borrowing Base Properties; Borrowing Base Property
Requests.
|
72
|
|
Section
5.2
|
Release of Borrowing Base Properties; Disqualification of Borrowing
Base Properties.
|
79
|
|
Section
5.3
|
Frequency of Borrowing Base Availability Calculations.
|
80
|
|
Article VI. CONDITIONS PRECEDENT
|
81
|
|
|
Section
6.1
|
Initial Conditions Precedent.
|
81
|
|
Section
6.2
|
Conditions Precedent to All Loans and Letters of
Credit.
|
86
|
|
Article
VII. REPRESENTATIONS AND WARRANTIES
|
86
|
|
|
Section
7.1
|
Organization; Power; Qualification.
|
86
|
|
Section
7.2
|
Ownership Structure.
|
87
|
|
Section
7.3
|
Authorization of Agreement, Etc.
|
88
|
|
Section
7.4
|
Compliance of Loan Documents with Laws, Etc.
|
88
|
|
Section
7.5
|
Compliance with Law; Governmental Approvals.
|
88
|
|
Section
7.6
|
Title to Properties; Liens; Insurance.
|
89
|
|
Section
7.7
|
Existing Indebtedness.
|
89
|
|
Section
7.8
|
Material Contracts; Management Agreements.
|
89
|
|
Section
7.9
|
Litigation.
|
89
|
|
Section
7.10
|
Taxes.
|
90
|
|
Section
7.11
|
Financial Statements.
|
90
|
|
Section
7.12
|
No Material Adverse Change; Solvency; Consideration.
|
91
|
|
Section
7.13
|
ERISA.
|
91
|
|
Section
7.14
|
Absence of Defaults.
|
92
|
|
Section
7.15
|
Environmental Laws.
|
93
|
|
Section
7.16
|
Investment Company; Etc.
|
93
|
|
Section
7.17
|
Margin Stock.
|
93
|
|
Section
7.18
|
Affiliate Transactions.
|
93
|
|
Section
7.19
|
Intellectual Property.
|
94
|
|
Section
7.20
|
Business.
|
94
|
|
Section
7.21
|
Broker’s Fees.
|
94
|
|
Section
7.22
|
Accuracy and Completeness of Information.
|
94
|
|
Section
7.23
|
OFAC and Other Sanctions Programs, Anti-Corruption, and
Anti-Terrorism.
|
95
|
|
Section
7.24
|
Borrowing Base Properties.
|
95
|
|
Section
7.25
|
Leases.
|
97
|
|
Section
7.26
|
Beneficial Ownership Certification.
|
97
|
|
Section
7.27
|
Survival.
|
97
|
|
Section
8.1
|
Preservation of Existence and Similar Matters.
|
97
|
|
Section
8.2
|
Compliance with Applicable Laws, Organizational Documents,
Sanctions, Anti-Corruption and Terrorism Laws, and Material
Contracts.
|
98
|
|
Section
8.3
|
Maintenance of Property.
|
98
|
ii
|
Section
8.4
|
Conduct of Business.
|
98
|
|
Section
8.5
|
Insurance.
|
98
|
|
Section
8.6
|
Payment of Taxes and Claims.
|
99
|
|
Section
8.7
|
Visits and Inspections; Appraisals.
|
99
|
|
Section
8.8
|
Use of Proceeds; Letters of Credit.
|
100
|
|
Section
8.9
|
Environmental Matters.
|
100
|
|
Section
8.10
|
Books and Records.
|
101
|
|
Section
8.11
|
Cash Management; Reserve Accounts.
|
101
|
|
Section
8.12
|
REIT Status.
|
102
|
|
Section
8.13
|
Subsidiary Guarantors.
|
103
|
|
Section
8.14
|
Further Assurances.
|
103
|
|
Section
8.15
|
Casualty/Condemnation.
|
103
|
|
Section
8.16
|
Distribution of Income to Borrower.
|
105
|
|
Article IX. INFORMATION
|
106
|
|
|
Section
9.1
|
Quarterly Financial Statements.
|
106
|
|
Section
9.2
|
Year-End Statements.
|
106
|
|
Section
9.3
|
Compliance Certificate.
|
107
|
|
Section
9.4
|
Borrowing Base Certificate.
|
107
|
|
Section
9.5
|
Other Information.
|
107
|
|
Section
9.6
|
Delivery of Documents.
|
110
|
|
Section
9.7
|
USA Patriot Act Notice; Compliance.
|
110
|
|
Article X. NEGATIVE COVENANTS
|
110
|
|
|
Section
10.1
|
Financial Covenants; Borrowing Base Covenants.
|
110
|
|
Section
10.2
|
Restricted Payments.
|
112
|
|
Section
10.3
|
Indebtedness.
|
113
|
|
Section
10.4
|
Certain Investment Limitations.
|
114
|
|
Section
10.5
|
Investments Generally.
|
115
|
|
Section
10.6
|
Liens; Negative Pledges; Restrictive Agreements.
|
115
|
|
Section
10.7
|
Fundamental Changes.
|
116
|
|
Section
10.8
|
Fiscal Year.
|
117
|
|
Section
10.9
|
Modifications to Management Agreements, Material
Contracts.
|
117
|
|
Section
10.10
|
Modifications of Organizational Documents; Dividend
Policy.
|
117
|
|
Section
10.11
|
Transactions with Affiliates.
|
117
|
|
Section
10.12
|
Plans.
|
118
|
|
Section
10.13
|
Derivatives Contracts.
|
118
|
|
Section
10.14
|
Foreign Assets Control; Anti-Corruption;
Anti-Terrorism.
|
118
|
|
Article XI.
DEFAULT
|
118
|
|
|
Section
11.1
|
Events of Default.
|
118
|
|
Section
11.2
|
Remedies Upon Event of Default.
|
123
|
|
Section
11.3
|
Marshaling; Payments Set Aside.
|
125
|
|
Section
11.4
|
Allocation of Proceeds.
|
125
|
|
Section
11.5
|
Collateral Accounts.
|
126
|
|
Section
11.6
|
Performance by Administrative Agent.
|
127
|
|
Section
11.7
|
Rights Cumulative.
|
127
|
iii
|
Article XII. THE ADMINISTRATIVE AGENT
|
127
|
|
|
Section
12.1
|
Authorization and Action.
|
127
|
|
Section
12.2
|
Administrative Agent’s Reliance, Etc.
|
129
|
|
Section
12.3
|
Notice of Defaults.
|
129
|
|
Section
12.4
|
Administrative Agent as Lender.
|
130
|
|
Section
12.5
|
[Reserved].
|
130
|
|
Section
12.6
|
Lender Credit Decision, Etc.
|
130
|
|
Section
12.7
|
Indemnification of Administrative Agent.
|
131
|
|
Section
12.8
|
Successor Administrative Agent.
|
131
|
|
Section
12.9
|
Titled Agent.
|
132
|
|
Section
12.10
|
Collateral Matters.
|
132
|
|
Section
12.11
|
Rights of Specified Derivatives Providers.
|
133
|
|
Section
12.12
|
Representations and Warranties of the Lenders with Respect to
Certain ERISA Matters.
|
133
|
|
Article XIII. MISCELLANEOUS
|
135
|
|
|
Section
13.1
|
Notices.
|
135
|
|
Section
13.2
|
Expenses.
|
136
|
|
Section
13.3
|
Setoff.
|
137
|
|
Section
13.4
|
Litigation; Jurisdiction; Other Matters; Waivers.
|
137
|
|
Section
13.5
|
Successors and Assigns.
|
138
|
|
Section
13.6
|
Amendments.
|
142
|
|
Section
13.7
|
Nonliability of Administrative Agent and Lenders.
|
144
|
|
Section
13.8
|
Confidentiality.
|
145
|
|
Section
13.9
|
Indemnification.
|
146
|
|
Section
13.10
|
Termination; Survival.
|
148
|
|
Section
13.11
|
Severability of Provisions.
|
148
|
|
Section
13.12
|
GOVERNING LAW.
|
148
|
|
Section
13.13
|
Counterparts.
|
148
|
|
Section
13.14
|
Obligations with Respect to Loan Parties.
|
148
|
|
Section
13.15
|
Limitation of Liability.
|
149
|
|
Section
13.16
|
Entire Agreement.
|
149
|
|
Section
13.17
|
Construction.
|
149
|
|
Section
13.18
|
Joint and Several Liability of the Loan Parties.
|
149
|
|
Section
13.19
|
Designation of Borrower as Agent for the Loan Parties.
|
151
|
|
Section
13.20
|
Acknowledgement Regarding Any Supported QFCs.
|
152
|
|
Section
13.21
|
Acknowledgement and Consent to Bail-In of EEA Financial
Institutions.
|
152
|
|
SCHEDULES
|
|
|
1.1
|
Consolidated
EBITDA Addbacks
|
|
2
|
Eligible
Borrowing Base Properties
|
|
3
|
Revolving
Commitment Amount and Commitment Percentage
|
|
6.1(a)
|
Indebtedness
to be Paid Off at Closing
|
|
7.2
|
Organizational
Structure Chart
|
|
7.6
|
Real
Estate Assets; Permitted Liens; Insurance
|
|
7.7
|
Existing
Indebtedness
|
|
7.8
|
Material
Contracts
|
|
7.9
|
Litigation
|
|
8.5
|
Insurance
Requirements
|
|
10.11
|
Transactions
with Affiliates
|
|
|
|
|
EXHIBITS
|
|
|
A
|
Assignment
and Acceptance Agreement
|
|
B
|
Guaranty
|
|
C
|
Notice
of Borrowing
|
|
D
|
Notice
of Continuation
|
|
E
|
Notice
of Conversion
|
|
F
|
Notice
of Swingline Borrowing
|
|
G
|
Swingline
Note
|
|
H
|
Form
of Revolving Credit Note
|
|
I
|
Increasing
Lender Expansion Agreement
|
|
J
|
Augmenting
Lender Expansion Agreement
|
|
K
|
Compliance
Certificate
|
|
L
|
Borrowing
Base Availability Certificate
|
|
M
|
Form
of Mortgage
|
|
N
|
Form
of Solvency Certificate
|
|
O
|
Form
of Assignment and Subordination of Management
Agreement
|
|
P
|
Form
of U.S. Tax Certificates
|
iv
This
CREDIT AGREEMENT (this “Agreement”) dated as of
October 22, 2019, by and among HC GOVERNMENT REALTY HOLDINGS, L.P.,
a Delaware limited partnership (the “Borrower”), certain Subsidiaries
of the Borrower as Subsidiary guarantors (together with each other
Person that may become a guarantor from time to time pursuant to
Section 5.1, each
individually, a “Subsidiary
Guarantor” and collectively, the “Subsidiary Guarantors”), HC
GOVERNMENT REALTY TRUST, INC., a Maryland corporation, as parent
guarantor (the “Parent
Guarantor”), and HOLMWOOD PORTFOLIO HOLDINGS, LLC, a
Delaware limited liability company (“Holmwood”; and together with the
Parent Guarantor and the Subsidiary Guarantors, collectively, the
“Guarantors”),
the Lenders from time to time party hereto, and KEYBANK NATIONAL
ASSOCIATION, as administrative Agent (the “Administrative
Agent”).
WHEREAS, the
Borrower has requested, among other things, that the Lenders
provide a revolving credit facility in the initial principal amount
of up to $60,000,000, including a letter of credit sublimit and a
swingline facility sublimit, as set forth in this Agreement, and
the Lenders and the L/C Issuer are willing to do so on the terms
and subject to the conditions set forth herein;
NOW,
THEREFORE, in consideration of the mutual covenants and agreements
herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the
parties hereto, the parties hereto covenant and agree as
follows:
ARTICLE I.
In
addition to terms defined elsewhere herein, the following terms
shall have the following meanings for the purposes of this
Agreement:
“Additional Costs” has the
meaning given that term in Section 4.1(b).
“Adjusted Consolidated EBITDA”
means, for any Reference Period, (a) Consolidated EBITDA for such
Reference Period minus (b) Capital Reserves for
all Real Estate Assets (excluding Development Assets) as of the
last day of such Reference Period.
“Adjusted NOI” means, for
any Reference Period, with respect to any Real Estate Asset, (i)
Property NOI from such Real Estate Asset(s) for such Reference
Period, minus (ii)
the Capital Reserves with respect to such Real Estate Asset(s) as
of the last day of such Reference Period.
“Administrative Agent” means
KeyBank, as contractual representative for the Lenders under the
terms of this Agreement, and any of its successors and duly
appointed assigns.
“Administrative
Questionnaire” means the Administrative Questionnaire
completed by each Lender and delivered to the Administrative Agent
in a form supplied by the Administrative Agent to the Lenders from
time to time.
“Advance Rate” means sixty
percent (60%).
1
“Affiliate” means, when used
with respect to a specified Person, another Person that directly,
or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
In no event shall the Administrative Agent or any Lender be deemed
to be an Affiliate of any Loan Party.
“Agreement” has the meaning
set forth in the introductory paragraph hereof.
“Agreement Date” means the
date as of which this Agreement is dated.
“Anti-Corruption Laws” means
all Applicable Laws specifically concerning or relating to bribery
or corruption.
“Anti-Terrorism Laws” means
all Applicable Laws relating to terrorism or money laundering,
including Executive Order No. 13224 on Terrorist Financing,
effective September 24, 2001 and the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001, Public Law 107-56.
“Applicable Law” means all
international, foreign, federal, state and local statutes,
treaties, rules, guidelines, regulations, ordinances, codes,
executive orders, and administrative or judicial precedents or
authorities, including the interpretation or administration thereof
by any Governmental Authority charged with the enforcement,
interpretation or administration thereof, and all applicable
administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any
Governmental Authority, in each case whether or not having the
force of law.
“Applicable Margin” means, for any day with respect to
any Loan, the percentage set forth below corresponding to the Total
Leverage Ratio as determined in accordance with Section 10.1 in
effect at such time:
|
Level
|
Total Leverage
Ratio
|
Applicable
Margin for Loans that are LIBOR Loans
|
Applicable
Margin Loans that are Base Rate Loans
|
|
1
|
Less
than 50%
|
2.00%
|
1.00%
|
|
2
|
Greater
than or equal to 50% and less than 55%
|
2.25%
|
1.25%
|
|
3
|
Greater
than or equal to 55% and less than 60%
|
2.50%
|
1.50%
|
2
Notwithstanding the
foregoing, from the Effective Date through the date on which the
Compliance Certificate for the fiscal quarter ending December 31,
2019 is delivered in accordance with Section 9.3, the Applicable
Margin shall equal the percentages corresponding to Level 2.
Thereafter, the Applicable Margin shall be determined by the
Administrative Agent from time to time, based on the Total Leverage
Ratio as set forth in the Compliance Certificate most recently
delivered by the Borrower pursuant to Section 9.3. Any adjustment
to the Applicable Margin shall be effective (a) in the case of a
quarterly Compliance Certificate of the Loan Parties delivered
pursuant to Sections 9.3, as of the date that is 5 Business Days
after the Administrative Agent’s receipt of a Compliance
Certificate for the applicable fiscal quarter covered by such
Compliance Certificate, and (b) in the case of an annual Compliance
Certificate of the Loan Parties delivered pursuant to Section 9.3,
as of the date that is 5 Business Days after the Administrative
Agent’s receipt of a Compliance Certificate for the
applicable fiscal year covered by such Compliance Certificate. If
the Borrower fails to deliver a Compliance Certificate pursuant to
Section 9.3, the Applicable Margin shall equal the percentages
corresponding to Level 3 until the date of the delivery of the
required Compliance Certificate. If any such Compliance Certificate
shall later be determined to be incorrect and as a result a higher
Applicable Margin should have been in effect for any period, the
Borrower shall pay to the Administrative Agent, for the account of
each Lender, all additional interest and fees which would have
accrued if the original Compliance Certificate had been correct
within five (5) Business Days of delivery of written notice thereof
from the Administrative Agent.
“Appraisal” means an
M.A.I. appraisal ordered by the Administrative Agent and prepared
by a professional appraiser selected by the Administrative Agent,
having at least the minimum qualifications required under the
applicable Governmental Authority, including without limitation,
FIRREA, and determining “as is” market value of the
subject property as between a willing buyer and a willing
seller.
“Appraised Value” means,
with respect to any Real Estate Asset on any date of determination,
the “as is” market value of such Real Estate Asset as
reflected in the most recent Appraisal of such Real Estate Asset as
of such date, as the same may have been reasonably adjusted by the
Administrative Agent based upon its internal review of such
Appraisal upon the addition of Borrowing Base Property pursuant to
Section 5.1(b) or delivery of an Appraisal pursuant to Section
8.7(b), which review and adjustments (if any) are based on criteria
and factors then generally used and considered by the
Administrative Agent in determining the value of similar real
estate properties, such Appraised Value to be reasonably
satisfactory to the Requisite Lenders.
“Approved Fund” means any
Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity
that administers or manages a Lender.
“Approved Management Agreement” has
the meaning assigned that term in clause (f) of the definition of
Eligible Property.
“Assignment and Acceptance
Agreement” means an Assignment and Acceptance
Agreement entered into by a Lender and an Eligible Assignee (with
the consent of any party whose consent is required by Section 13.5), and accepted by
the Administrative Agent, substantially in the form of
Exhibit A or any
other form approved by the Administrative Agent.
“Assignment and Subordination of
Management Agreement” means, collectively, each
Assignment and Subordination of Management Agreement entered into
by a Loan Party from time to time in favor of the Administrative
Agent, for the benefit of the Administrative Agent, the Lenders and
the Specified Derivatives Providers, with respect to a Property
Management Agreement over a Borrowing Base Property or other
Management Agreement, substantially in the form attached hereto as
Exhibit
O.
3
“Assignments of Leases and
Rents” means each Assignment of Leases and Rents from
time to time entered into by a Loan Party for the benefit of the
Administrative Agent, the Lenders and the Specified Derivatives
Providers in connection with the addition of an Eligible Property
as a Borrowing Base Property. Any Assignment of Leases and Rents
may, at the discretion of the Administrative Agent, be included
within the applicable Mortgage.
“Assignments of Licenses, Permits and
Contracts” means, collectively, each Assignment of
Licenses, Permits and Contracts from time to time entered into by a
Loan Party from time to time for the benefit of the Administrative
Agent, the Lenders and the Specified Derivatives Providers in
connection with the addition of an Eligible Property as a Borrowing
Base Property. Any Assignment of Licenses, Permits and Contracts
may, at the discretion of the Administrative Agent, be included
within the applicable Mortgage.
“Augmenting Lender” has the
meaning given that term in Section 2.15(a).
“Bail-In Action” means the exercise
of any Write-Down and Conversion Powers by the applicable EEA
Resolution Authority in respect of any liability of an EEA
Financial Institution.
“Bail-In Legislation” means, with
respect to any EEA Member Country implementing Article 55 of
Directive 2014/59/EU of the European Parliament and of the Council
of the European Union, the implementing law for such EEA Member
Country from time to time which is described in the EU Bail-In
Legislation Schedule.
“Base Rate” means, for any
day, a rate per annum equal to the greatest of (a) the fluctuating
annual rate of interest announced from time to time by KeyBank at
its principal office in Cleveland, Ohio, as its “prime
rate” in effect on such day, (b) the Federal Funds Effective
Rate in effect on such day plus 0.50%, and (c) LIBOR for a
one-month Interest Period on such day (or if such day is not a
Business Day, the immediately preceding Business Day) plus 1%;
provided, that for
purposes of this definition, LIBOR for any Business Day shall be
based on the rate appearing on the Reuters Screen LIBOR01 or
LIBOR02 Page (or on any successor or substitute page of such
service, or any successor to or substitute for such service,
providing rate quotations comparable to those currently provided on
such page of such service, as determined by the Administrative
Agent from time to time for purposes of providing quotations of
interest rates applicable to deposits in Dollars in the London
interbank market) at approximately 11:00 a.m., London time, on such
Business Day. Any change in the Base Rate due to a change in
KeyBank’s “prime rate”, the Federal Funds
Effective Rate or LIBOR shall be effective from and including the
effective date of such change in such rate, without notice or
demand of any kind. The Base Rate is a reference rate used by
KeyBank in determining interest rates on certain loans and is not
intended to be the lowest rate of interest charged by KeyBank or
any other Lender on any extension of credit to any
customer.
“Base Rate Loan” means a
Loan bearing interest at a rate based on the Base
Rate.
“Benefit Arrangement” means
at any time an employee benefit plan within the meaning of Section
3(3) of ERISA which is not a Plan or a Multiemployer Plan and which
is maintained or otherwise contributed to by any member of the
ERISA Group.
4
“Benefit Plan” means any of (a) an
“employee benefit plan” (as defined in ERISA) that is
subject to Title I of ERISA, (b) a “plan” as defined in
and subject to Section 4975 of the Code or (c) any Person whose
assets include (within the meaning of the Plan Asset Regulations
for purposes of Title I of ERISA or Section 4975 of the Code) 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” has the meaning
set forth in the introductory paragraph hereof.
“Borrowing Base Adjusted
NOI” means, for any Reference Period, the Adjusted NOI
of all Borrowing Base Properties for such Reference
Period.
“Borrowing Base
Availability” means, as at any date of determination,
the least of:
(a) the
aggregate Revolving Commitments on such date;
(b) the
amount equal to the product of the aggregate Borrowing Base
Property Value multiplied by the Advance Rate; and
(c) the
maximum principal amount that would not cause the Borrowing Base
DSCR to be less than 1.50 to 1.00.
“Borrowing Base Certificate”
has the meaning given that term in Section 9.4.
“Borrowing Base DSCR” means, on any date of
determination, the ratio of (a) Borrowing Base Adjusted NOI for the
Reference Period most recently ended (and including, on a pro forma
basis, the projected Adjusted NOI for any Real Estate Asset being
acquired with the proceeds of a requested Loan, as approved by the
Administrative Agent), divided by (b) the Implied Debt Service
based on the aggregate outstanding principal amount of Revolving
Loans on the date of determination (after giving effect to any
requested Loans or other Credit Event), on an annualized
basis.
“Borrowing Base
Property(ies)” means, as of any date, each Eligible
Property that is encumbered by a Mortgage and with respect to which
the conditions set forth in Section 5.1 have been satisfied
and which has not been removed as a Borrowing Base Property
pursuant to Section
5.2. As of the Effective Date, the Borrowing Base Properties
shall consist solely of the Eligible Properties that are the
Initial Borrowing Base Properties.
“Borrowing Base Property
Request” has the meaning given that term in
Section 5.1(b)(i).
“Borrowing Base Property
Value” means, on any date of determination, for each
Borrowing Base Property eligible for inclusion in the calculation
of Borrowing Base Availability on such date, the Appraised Value of
such Borrowing Base Property as most recently determined under this
Agreement. For the avoidance of doubt, no Borrowing Base Property
Value shall be attributable to any Borrowing Base Property that is
vacant, has a tenant that is in payment default of its Lease or is
the subject of a bankruptcy or other insolvency proceeding (except
in the event such tenant’s Lease has been assumed in
connection with such bankruptcy or other insolvency proceeding) or
has gone dark.
5
“Budget” has the meaning
given to that term in Section 9.5(j).
“Business Day” means (a) any
day other than a Saturday, Sunday or other day on which banks in
Cleveland, Ohio or New York, New York are authorized or required to
close and (b) with reference to a LIBOR Loan any such day that is
also a day on which dealings in deposits of Dollars are carried out
in the London interbank market.
“Cape Canaveral Consent”
means a ground lessor
consent and estoppel agreement with respect to the Cape Canaveral
Property, which such agreement must be satisfactory to the
Administrative Agent.
“Cape Canaveral Permitted Ground
Lease” means that certain Lease Agreement dated
November, 2010 by and between Canaveral Port Authority, as lessor
and ▇▇▇▇▇▇ Property Canaveral, LLC as lessee, and assigned to from
▇▇▇▇▇▇ Property Canaveral, LLC to Gov CBP Cape Canaveral, LLC
pursuant to that certain Assignment and Assumption of Ground Lease
dated March 25, 2015, as further amended by that certain First
Amendment to Thirty Year Lease between Canaveral Port Authority and
Gov CBP Cape Canaveral, LLC dated October 28, 2015.
“Cape Canaveral Property”
means the Real Estate Asset located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
“Capital Lease Obligations”
means, with respect to any Person, the obligations of such Person
to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property,
or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet
of such Person under GAAP; and, for the purposes of this Agreement,
the amount of such obligations at any time shall be the capitalized
amount thereof at such time determined in accordance with
GAAP.
“Capital Reserves” means, as of any date and with
respect to any Real Estate Asset, an amount equal to (a) the
aggregate leasable square footage of all completed space of such
Real Estate Asset, multiplied by (b)
$0.25. If the term Capital Reserves is used without
reference to any specific Real Estate Asset then the amount shall
be determined on an aggregate basis with respect to all Real Estate
Assets of the Parent Guarantor and its Wholly-Owned Subsidiaries
and the Parent Guarantor’s applicable Equity Percentage of
all Real Estate Assets of any non-Wholly-Owned Subsidiaries and
Unconsolidated Affiliates.
“Cash” shall mean money in legal tender of the
United States.
“Cash Collateralize” means,
to pledge and deposit with or deliver to the Administrative Agent,
for its benefit and the benefit of the Lenders, as collateral for
Letter of Credit Liabilities or obligations of Lenders to fund
participations in respect of Letter of Credit Liabilities, cash or
deposit account balances or, if the Administrative Agent shall
agree in its sole discretion, other credit support, in each case
pursuant to documentation in form and substance satisfactory to the
Administrative Agent. “Cash Collateral” shall
have a meaning correlative to the foregoing and shall include the
proceeds of such cash collateral and other credit
support.
6
“Cash Equivalents” means:
(a) securities issued, guaranteed or insured by the United States
of America or any of its agencies with maturities of not more than
one year from the date acquired; (b) certificates of deposit with
maturities of not more than one year from the date issued by a
United States federal or state chartered commercial bank of
recognized standing, or a commercial bank organized under the laws
of any other country which is a member of the Organization for
Economic Cooperation and Development, or a political subdivision of
any such country, acting through a branch or agency, which bank has
capital and unimpaired surplus in excess of $500,000,000 and which
bank or its holding company has a short-term commercial paper
rating of at least A-2 or the equivalent by S&P or at least P-2
or the equivalent by ▇▇▇▇▇’▇; (c) reverse repurchase
agreements with terms of not more than seven days from the date
acquired, for securities of the type described in clause (a) above and entered
into only with commercial banks having the qualifications described
in clause (b)
above; (d) commercial paper issued by any Person incorporated under
the laws of the United States of America or any State thereof and
rated at least A-2 or the equivalent thereof by S&P or at least
P-2 or the equivalent thereof by ▇▇▇▇▇’▇, in each case with
maturities of not more than one year from the date acquired; and
(e) investments in money market funds registered under the
Investment Company Act of 1940, as amended, which have net assets
of at least $500,000,000 and at least 85% of whose assets consist of securities
and other obligations of the type described in clauses (a) through
(d)
above.
“Certification of Beneficial
Ownership” means a certification required by the
Administrative Agent from the Loan Parties regarding beneficial
ownership and controlling parties in accordance with, and pursuant
to, 31 C.F.R. §1010.230.
“Collateral” means,
collectively, (a) with respect to any Borrowing Base Property, all
of the “Property” or other assets referred to in any
Mortgage, (b) the “Collateral” as defined in the Pledge
and Security Agreement, (c) the Collateral Accounts, and (d) all of
the other property that is or is intended under the terms of any
Deposit Account Pledge Agreement and any other applicable
Collateral Document to be subject to Liens in favor of the
Administrative Agent for the benefit of itself, the Lenders, and
the Specified Derivatives Providers.
“Collateral Accounts” means
collectively (i) the L/C Collateral Account and (ii) each of the
deposit accounts established pursuant to Section 8.11 maintained by, or
on behalf of, the Administrative Agent and which are subject to the
Administrative Agent’s “control” (as such term is
used in Article 9 of the UCC) pursuant to an account control
agreement in form and substance satisfactory to the Administrative
Agent or other manner satisfactory to the Administrative Agent;
provided that,
other than with respect to the L/C Collateral Account, the
Administrative Agent shall not exercise such “control”
until and unless an Event of Default shall have occurred and be
continuing.
7
“Collateral Documents”
means, collectively, (a) the Mortgages, the Assignments of Leases
and Rents, the Assignments of Licenses, Permits and Contracts, and
each other agreement, instrument or document that creates or
purports to create a Lien in favor of the Administrative Agent for
the benefit of itself, the Lenders, and the Specified Derivatives
Providers on any Borrowing Base Property, (b) the Pledge and
Security Agreement, (c) each Assignment and Subordination of
Management Agreement, (d) the Deposit Account Pledge Agreement, and
(e) each other agreement, instrument or document that creates or
purports to create a Lien in favor of the Administrative Agent for
the benefit of itself, the Lenders, and the Specified Derivatives
Providers on any assets or properties of the Loan Parties. Any
Collateral Document executed and/or delivered in connection with a
Borrowing Base Property may take the form of assignments of, and
amendments and restatements of, existing mortgages or deeds of
trust or other collateral documents encumbering an Eligible
Property, if approved by the Administrative Agent in its reasonable
discretion.
“Commitment” means, as to
any Lender, such Lender’s Revolving Commitment.
“Commitment Percentage”
means, as to each Lender, the ratio, expressed as a percentage, of
(a) the amount of such Lender’s Revolving Commitment to (b)
the aggregate amount of the Revolving Commitments of all Lenders,
as set forth on Schedule
3 (as such Schedule
3 may be updated from time to time by the Administrative
Agent); provided, however, that if at the time of determination the
Revolving Commitments have terminated or been reduced to zero, the
“Commitment
Percentage” of each Lender shall be the Commitment
Percentage of such Lender in effect immediately prior to such
termination or reduction.
“Commodity Exchange Act”
means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as
amended from time to time, and any successor statute.
“Compliance Certificate” has
the meaning given that term in Section 9.3.
“Condemnation” has the meaning
given that term in Section
8.15(b).
“Condemnation Proceeds” has the
meaning given that term in Section 8.15(b).
“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.
“Consolidated” or
“consolidated”,
with reference to any term herein, means that term as applied to
the accounts of the Loan Parties and their respective Subsidiaries,
consolidated in accordance with GAAP, as applicable.
8
“Consolidated EBITDA” means, for
any period, without duplication, the Consolidated Net Income (or
loss) of the Loan Parties and their consolidated Subsidiaries for
such period (before minority interests), adjusted by (x) adding
thereto, in each case to the extent actually deducted in
determining such Consolidated Net Income, (i) Consolidated Interest
Expense of the Loan Parties and their consolidated Subsidiaries for
such period, (ii) consolidated Income Tax expense of the Loan
Parties and their consolidated Subsidiaries for such period, (iii)
real estate and related intangible asset amortization and
depreciation of the Loan Parties and their consolidated
Subsidiaries for such period, (iv) any loss (or minus any income or
gain) in each case resulting from early extinguishment of
Indebtedness in such period, (v) any loss (or minus any net income
or gain) resulting from a Derivatives Contract (including by virtue
of a termination thereof) in such period, (vi) any non-recurring
non-cash charges in such period to the extent that such non-cash
charges do not give rise to a liability that would be required to
be reflected on the Consolidated balance sheet of the Loan Parties
(and so long as no cash payments or cash expenses will be
associated therewith (whether in the current period or for any
future period)), (vii) fees, costs and expenses incurred in
connection with the consummation of the transactions contemplated
by (x) the Loan Documents and (y) the HCM Mezzanine Debt Documents
and the amendments thereto on or about the Effective Date and the
issuance of Series B Preferred by the Parent Guarantor, in each
case as reasonably approved by the Administrative Agent (it being
acknowledged that the Administrative Agent is satisfied with the
addbacks set forth in the model delivered by the Borrower on the
Effective Date), and (viii) solely with respect to any applicable
period which includes a fiscal quarter ending on or before
September 30, 2020, certain non-recurring, one-time cash charges,
expenses and losses in an amount not to exceed the respective
amounts set forth on Schedule 1.1 with respect to
the items set forth therein, and (y) subtracting therefrom, in each
case to the extent included in determining Consolidated Net Income
for such period, the amount of non-recurring non-cash gains during
such period; provided, however, that Consolidated
EBITDA shall be determined without giving effect to any
extraordinary gains or losses (including any taxes attributable to
any such extraordinary gains or losses) or gains or losses
(including any taxes attributable to such gains or losses) from
sales of assets other than from sales of inventory (excluding real
property) in the ordinary course of business. Consolidated EBITDA
for any Reference Period shall be adjusted on a pro forma basis to
exclude any Consolidated EBITDA from Real Estate Assets sold or
otherwise transferred during such Reference Period and to include
the Consolidated EBITDA for Real Estate Assets acquired during such
Reference Period in a manner satisfactory to the Administrative
Agent. Notwithstanding the foregoing, for purposes of calculating
Consolidated EBITDA, only the Loan Parties’ Equity Percentage
of the items comprising Consolidated EBITDA of any non-Wholly-Owned
Subsidiary or Unconsolidated Affiliate (or, if applicable, such
other amount to which such Loan Party is entitled or for which it
is obligated based on an arm’s length agreement), shall be
included in such determination of Consolidated EBITDA. Consolidated
EBITDA shall be adjusted to remove any impact of straight-lining of
rents and amortization of intangibles pursuant to Accounting
Standards Codification No. 805, Business Combinations (formerly
Statement of Financial Account Standards No. 141 (revised 2007),
Business Combinations).
“Consolidated Fixed Charges”
means, for any fiscal period, the sum (without duplication) of, on
a Consolidated basis for the Loan Parties and their respective
Subsidiaries, (a) Consolidated Interest Expense paid or required to
be paid in cash for such period (excluding the HCM Mezzanine
Interest so long as the payment of such interest is subject at all
times to the HCM Subordination Agreement), (b) the aggregate amount
of scheduled principal payments of Indebtedness (excluding balloon
payments at maturity) made or required to be made during such
period by the Loan Parties and their respective Subsidiaries, (c)
Preferred Dividends paid or required to be paid in cash by the
Parent Guarantor or any of their Subsidiaries during such period,
and (d) the Parent Guarantor’s and its Subsidiaries’
Equity Percentage of all Consolidated Fixed Charges from any
non-Wholly-Owned Subsidiaries or Unconsolidated Affiliates (or, if
applicable, such greater amount for which it is liable by contract
or otherwise). Consolidated Fixed Charges shall be adjusted on a
pro forma basis to account for properties acquired or sold in the
period in a manner satisfactory to the Administrative
Agent.
“Consolidated Interest
Expense” means, with respect to the Loan Parties and
their consolidated Subsidiaries for any period, on a Consolidated
basis, all paid, accrued or capitalized interest expense on such
Person’s total Indebtedness (whether direct, indirect or
contingent, and including, without limitation, interest on all
convertible debt, but excluding amortization of financing costs).
Notwithstanding the definition of Indebtedness, HCM Mezzanine Debt
will be deemed to be Indebtedness for the purposes of this
definition.
9
“Consolidated Net Income”
means, for any period, the Consolidated net income (or loss) of
such Person and its Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP.
“Consolidated Total Indebtedness”
means, as of any date of determination, without duplication, the
aggregate Indebtedness of the Loan Parties and their respective
Subsidiaries as of such date, and shall include such Person’s
Equity Percentage of the Indebtedness of its non-Wholly-Owned
Subsidiaries and Unconsolidated Affiliates (or, if applicable, such
greater amount for which it is liable by contract or
otherwise).
“Continue”,
“Continuation” and “Continued” each refers to
the continuation of a LIBOR Loan from one Interest Period to
another Interest Period pursuant to Section 2.8.
“Control” (including, with
correlative meanings, the terms “controlling”,
“controlled by” and “under common control
with”), as applied to any Person, means the possession,
directly or indirectly, of the power to direct or cause the
direction of the management and policies of that Person, whether
through the ownership of voting securities or by contract or
otherwise, and not subject to the veto powers of any other
Person.
“Convert”, “Conversion” and
“Converted” each
refers to the conversion of a Loan of one Type into a Loan of
another Type pursuant to Section 2.9.
“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 13.20.
“Credit Event” means any of
the following: (a) the making (or deemed making) of any Loan, (b)
the Continuation of a LIBOR Loan (including any automatic
Continuation pursuant to Section 2.8), (c) the Conversion of a Base
Rate Loan into a LIBOR Loan or of a LIBOR Loan into a Base Rate
Loan, and (d) the issuance or extension of a Letter of
Credit.
10
“Daily Interest Period” means, with
respect to a Daily LIBOR Loan, the period commencing on the date
such Daily LIBOR Loan is made and ending on the next day, with
successive Daily Interest Periods automatically commencing daily
thereafter.
“Daily LIBOR Loan” means each LIBOR
Loan bearing interest at a rate based upon the Daily LIBOR
Rate.
“Daily LIBOR Rate” means, for any
Daily Interest Period with respect to a Daily LIBOR Loan, the rate
of interest (rounded upward, if
necessary, to the nearest 1/100th of 1%) at which,
determined by the Administrative Agent
in accordance with its usual procedures (which determination shall
be conclusive absent manifest error) as of approximately 11:00 a.m.
(London time) on the same day as the beginning of such Daily
Interest Period, U.S. dollar deposits in immediately available
funds in an amount comparable to such Daily LIBOR Loan and with a
maturity of one (1) day are offered to the prime banks by leading
banks in the London interbank market. If as so determined,
the Daily LIBOR Rate would be less than zero percent (0%), the
Daily LIBOR Rate shall be deemed to be zero percent (0%) for the
purposes of this Agreement and the other Loan Documents. As of the
Agreement Date, the Daily LIBOR Rate is customarily determined by
the Administrative Agent with reference to the Bloomberg US00O/N
Index. If Bloomberg no longer reports such rate or the
Administrative Agent either no longer utilizes or determines in
good faith that the rate so reported no longer accurately reflects
the rate available to the Administrative Agent and the Lenders in
the London Interbank Market, the Administrative Agent may select a
replacement index, but under no circumstances shall the Daily LIBOR
Rate applicable to the Loan be less than zero percent
(0%).
“Debtor Relief Laws” means
the Bankruptcy Code, and all other liquidation, conservatorship,
bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar
Applicable Laws relating to the relief of debtors in the United
States of America or other applicable jurisdictions from time to
time in effect.
“Default” means any event or
condition that constitutes an Event of Default or that, with the
giving of any notice, the passage of time, or both, would be an
Event of Default.
“Default Right” has the meaning
assigned to that certain term in, and shall be interpreted in
accordance with, 12 C.F.R. §§ 252.81.47.2 or 382.1, as
applicable.
11
“Defaulting Lender”
means, subject to Section
3.11(f), any Lender that (a) has failed to (i) fund all or
any portion of its Loans within 2 Business Days of the date such
Loans were required to be funded hereunder unless such Lender
notifies the Administrative Agent and the Borrower in writing that
such failure is the result of such Lender’s determination
that one or more conditions precedent to funding (each of which
conditions precedent, together with any applicable default, shall
be specifically identified in such writing) has not been satisfied,
or (ii) pay to the Administrative Agent, the L/C Issuer, the
Swingline Lender or any other Lender any other amount required to
be paid by it hereunder (including in respect of its participation
in Letters of Credit or Swingline Loans) within 2 Business Days of
the date when due, (b) has notified the Borrower, the
Administrative Agent, the L/C Issuer or the Swingline Lender in
writing that it does not intend to comply with its funding
obligations hereunder, or has made a public statement to that
effect (unless such writing or public statement relates to such
Lender’s obligation to fund a Loan hereunder and states that
such position is based on such Lender’s determination that a
condition precedent to funding (which condition precedent, together
with any applicable default, shall be specifically identified in
such writing or public statement) cannot be satisfied), (c) has
failed, within 3 Business Days after written request by the
Administrative Agent or the Borrower, to confirm in writing to the
Administrative Agent and the Borrower that it will comply with its
prospective funding obligations hereunder (provided that such Lender shall
cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such
written confirmation by the Administrative Agent and the Borrower),
or (d) has, or has a direct or indirect parent company that has, (i)
become the subject of a proceeding under any Debtor Relief Law,
(ii) had appointed for it a receiver, custodian, conservator,
trustee, administrator, assignee for the benefit of creditors or
similar Person charged with reorganization or liquidation of its
business or assets, including the Federal Deposit Insurance
Corporation or any other state or federal regulatory authority
acting in such a capacity, or (iii) become, or is reasonably
expected to become, the subject of a Bail-In Action; provided that a Lender shall
not be a Defaulting Lender solely by virtue of the ownership or
acquisition of any equity interest in that Lender or any direct or
indirect parent company thereof by a Governmental Authority so long
as such ownership interest does not result in or provide such
Lender with immunity from the jurisdiction of courts within the
United States of America or from the enforcement of judgments or
writs of attachment on its assets or permit such Lender (or such
Governmental Authority) to reject, repudiate, disavow or disaffirm
any contracts or agreements made with such Lender. Any
determination by the Administrative Agent that a Lender is a
Defaulting Lender under any one or more of clauses (a) through
(d) above shall be
conclusive and binding absent manifest error, and such Lender shall
be deemed to be a Defaulting Lender (subject to Section 3.11(f)) upon delivery
of written notice of such determination to the Borrower, the L/C
Issuer, the Swingline Lender and each Lender.
“Deposit Account Pledge Agreement”
means any Deposit Account Pledge Agreement delivered by the
applicable Loan Parties to the Administrative Agent for the benefit
of the Administrative Agent, the Lenders, and the Specified
Derivatives Providers from time to time in respect of the deposit
accounts of the Loan Parties.
“Derivatives Contract” means
(a) any transaction (including any master agreement (whether
published by the International Swaps and Derivatives Association,
Inc. or otherwise), confirmation or other agreement with respect to
any such transaction) now existing or hereafter entered into by the
Borrower or any of its Subsidiaries (i) which is a rate swap
transaction, swap option, basis swap, forward rate transaction,
commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option,
foreign exchange transaction, cap transaction, floor transaction,
collar transaction, currency swap transaction, cross-currency rate
swap transaction, currency option, credit protection transaction,
credit swap, credit default swap, credit default option, total
return swap, credit spread transaction, repurchase transaction,
reverse repurchase transaction, buy/sell-back transaction,
securities lending transaction, weather index transaction or
forward purchase or sale of a security, commodity or other
financial instrument or interest (including any option with respect
to any of these transactions) or (ii) which is a type of
transaction that is similar to any transaction referred to in
clause (i) above
that is currently, or in the future becomes, commonly entered into
in the financial markets (including terms and conditions
incorporated by reference in such agreement) and which is a
forward, swap, future, option or other derivative on one or more
rates, currencies, commodities, equity securities or other equity
instruments, debt securities or other debt instruments, economic
indices or measures of economic risk or value, or other benchmarks
against which payments or deliveries are to be made, and (b) any
combination of these transactions.
12
“Derivatives Termination
Value” means, in respect of any one or more
Derivatives Contracts, after taking into account the effect of any
legally enforceable netting agreement or provision relating
thereto, (a) for any date on or after the date such Derivatives
Contracts have been terminated or closed out, the termination
amount or value determined in accordance therewith, and (b) for any
date prior to the date such Derivatives Contracts have been
terminated or closed out, the then-current ▇▇▇▇-to-market value for
such Derivatives Contracts, determined based upon one or more
mid-market quotations or estimates provided by any recognized
dealer in Derivatives Contracts (which may include the
Administrative Agent, any Lender, any Specified Derivatives
Provider or any Affiliate of any thereof).
“Development Asset” means
any Real Estate Asset which is either (i) under development for
which the Parent Guarantor or any of its Subsidiaries is actively
pursuing construction of one or more buildings or other
improvements or (ii) the subject of a major redevelopment or
renovation, involving extensive capital expenditures beyond those
normally incurred in connection with the installation of tenant
improvements for a new tenant, to upgrade and reposition such Real
Estate Asset to meet prevailing market standards and requiring such
Real Estate Asset to be vacated during such redevelopment or
renovation and, in the case of all such developments,
redevelopments or renovations, for which construction is proceeding
to completion without undue delay from permit denial, construction
delays or otherwise, all pursuant to such member’s ordinary
course of business, provided that any such Real Estate Asset will
no longer be considered a Development Asset following a date twelve
(12) months after the first date on which a certificate of
occupancy has issued or reissued for such Development Asset or on
which such Development Asset may otherwise be lawfully occupied for
its intended use.
“Dollars” or “$” means the lawful
currency of the United States of America.
“Due Diligence Package” has
the meaning given that term in Section 5.1(b)(i).
“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
later of: (a) the Agreement Date; and (b) the date of the initial
funding of the Loans.
“Eligible Assignee” means
any Person that meets the requirements to be an assignee under
Sections
13.5(b)(iii), (v) and (vi) (subject to such consents,
if any, as may be required under Section
13.5(b)(iii)).
13
“Eligible Property” means a
Real Estate Asset which satisfies all of the following
requirements:
(a) such
Real Estate Asset must be directly wholly-owned in fee simple (or,
solely with respect to the Cape Canaveral Property, must be ground
leased pursuant to the Cape Canaveral Permitted Ground Lease so
long as the Cape Canaveral Consent is in full force and effect) by
the Borrower or a Wholly-Owned Subsidiary of the Borrower, in each
case that is a Subsidiary Guarantor as of the Effective Date or
pursuant to Section 5.1(b)(iii)(A), and the Borrower shall Control,
and shall have the sole right to take, the following actions
without the need to obtain the consent of (and not subject to any
veto rights of) any other Person: (i) to finance or refinance such
Real Estate Asset, (ii) to create Liens on such Real Estate Asset
and (iii) to sell, transfer or otherwise dispose of such Real
Estate Asset. For the avoidance of doubt, no property owned by a
co-invest structure shall be an Eligible Property;
(b) such
Real Estate Asset must be an operating property located in the
United States with at least 80% of the property gross leasable area
leased to Federal Agencies;
(c) such
Real Estate Asset must be free of any Liens (other than Eligible
Property Permitted Liens) and free of any Negative Pledge or
prohibition on sale;
(d) such
Real Estate Asset is not subject to any environmental condition or
claim or structural deficiency or defect with respect to which the
cost of remediating such matters could, either individually or in
the aggregate, be reasonably expected to exceed $500,000 (including
any environmental issues which have been insured over unless
otherwise approved by the Administrative Agent);
(e) none
of (i) the direct or indirect Equity Interests in the Borrower or
Subsidiary Guarantor owning such Real Estate Asset is subject to
any Lien (up to and including the Equity Interests of the Parent
Guarantor in the Borrower), other than Liens permitted pursuant to
clause (e) of the definition of “Permitted Liens”, and
(ii) the Equity Interests in the Borrower or any Subsidiary
Guarantor owning such Real Estate Asset is subject to any Negative
Pledge or prohibition on transfer other than pursuant to the
Collateral Documents;
(f) such
Real Estate Asset is subject to (i) a Property Management
Agreement, approved by the Administrative Agent and, unless
otherwise agreed by the Administrative Agent, subject to a
subordination agreement in form and substance reasonably
satisfactory to the Administrative Agent, or (ii) an alternative
property management arrangement reasonably satisfactory to the
Administrative Agent (each such Property Management Agreement or
arrangement, an “Approved Management
Agreement”);
(g) except
with respect to the Initial Borrowing Base Properties and the
Potential Borrowing Base Properties (if applicable), at the time
such Real Estate Asset is included as a Borrowing Base Property,
such Real Estate Asset must have a minimum of five (5) years
remaining on the initial Lease term on such property;
(h) a
complete Due Diligence Package along with each of the other
documents, items, and certificates required pursuant to Section
5.1(b) shall have been prepared and delivered to the Administrative
Agent with respect to such Real Estate Asset;
14
provided that any Real Estate
Asset that does not satisfy the above criteria may be included as a
“Borrowing Base Property” subject to the prior written
consent of the Requisite Lenders.
“Eligible Property Permitted
Liens” means the Liens permitted pursuant to clauses
(a), (c), (d) and (e) of the definition of “Permitted
Liens.”
“Environmental
Indemnity(ies)” means (a) that certain Environmental
Indemnity Agreement dated as of the date hereof, made by the Loan
Party(ies) signatory thereto for the benefit of itself, the
Lenders, the L/C Issuer and the Specified Derivatives Providers and
(b) any Environmental Indemnity Agreement (in substantially
identical form as the Environmental Indemnity Agreement being
executed as of the date hereof) hereafter executed by a Loan Party
for the benefit of the Administrative Agent, the L/C Issuer, the
Lenders and the Specified Derivatives Providers in connection with
the addition of an Eligible Property as a Borrowing Base
Property.
“Environmental Laws” means
any Applicable Law relating to environmental protection or the
manufacture, storage, remediation, disposal or clean-up of
Hazardous Materials including, without limitation, the following:
Clean Air Act, 42 U.S.C. § 7401 et seq.; Federal Water
Pollution Control Act, 33 U.S.C. § 1251 et seq.; Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery
Act, 42 U.S.C. § 6901 et seq.; Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. § 9601 et
seq.; National Environmental Policy Act, 42 U.S.C. § 4321 et
seq.; regulations of the Environmental Protection Agency and any
applicable rule of common law and any judicial interpretation
thereof relating primarily to the environment or Hazardous
Materials, and any analogous or comparable state or local laws,
regulations or ordinances that concern Hazardous Materials or
protection of the environment.
“Equity Interest” means,
with respect to any Person, any share of capital stock of (or other
ownership or profit interests in) such Person, any warrant, option
or other right for the purchase or other acquisition from such
Person of any share of capital stock of (or other ownership or
profit interests in) such Person whether or not certificated, any
security convertible into or exchangeable for any share of capital
stock of (or other ownership or profit interests in) such Person or
warrant, right or option for the purchase or other acquisition from
such Person of such shares (or such other interests), and any other
ownership or profit interest in such Person (including, without
limitation, partnership, member or trust interests therein),
whether voting or nonvoting, and whether or not such share,
warrant, option, right or other interest is authorized or otherwise
existing on any date of determination.
“Equity Issuance” means any
issuance or sale by a Person of any Equity Interest in such Person
and shall in any event include the issuance of any Equity Interest
upon the conversion or exchange of any security constituting
Indebtedness that is convertible or exchangeable, or is being
converted or exchanged, for Equity Interests.
“Equity Percentage” means
the aggregate ownership percentage of Parent Guarantor or its
Subsidiaries in each non-Wholly-Owned Subsidiary or Unconsolidated
Affiliate, as applicable, which shall be calculated as the greater
of (a) such Person’s direct or indirect nominal capital
ownership interest in the non-Wholly-Owned Subsidiary or
Unconsolidated Affiliate as set forth in the non-Wholly-Owned
Subsidiary’s or Unconsolidated Affiliate’s
organizational documents, and (b) such Person’s direct or
indirect economic ownership interest in the non-Wholly-Owned
Subsidiary or Unconsolidated Affiliate reflecting such
Person’s current allocable share of income and expenses of
the non-Wholly-Owned Subsidiary or Unconsolidated
Affiliate.
15
“ERISA” means the Employee
Retirement Income Security Act of 1974, as in effect from time to
time.
“ERISA Event” means, with
respect to the ERISA Group, (a) any “reportable event”
as defined in Section 4043 of ERISA with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b)
the withdrawal of a member of the ERISA Group from a Plan subject
to Section 4063 of ERISA during a plan year in which it was a
“substantial employer” as defined in Section 4001(a)(2)
of ERISA or a cessation of operations that is treated as such a
withdrawal under Section 4062(e) of ERISA; (c) the incurrence by a
member of the ERISA Group of any liability with respect to the
withdrawal or partial withdrawal from any Multiemployer Plan; (d)
the incurrence by any member of the ERISA Group of any liability
under Title IV of ERISA with respect to the termination of any Plan
or Multiemployer Plan; (e) the institution of proceedings
to terminate a Plan or
Multiemployer Plan by the PBGC; (f) the failure by any member of
the ERISA Group to make when due required contributions to a
Multiemployer Plan or Plan unless such failure is cured within 30
days or the filing pursuant to Section 412(c) of the Internal
Revenue Code or Section 302(c) of ERISA of an application for a
waiver of the minimum funding standard with respect to a Plan; (g)
any other event or condition that would reasonably be expected to
constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Plan or
Multiemployer Plan or the imposition of liability under Section
4069 or 4212(c) of ERISA; (h) the receipt by any member of the
ERISA Group of any notice or the notice to any Multiemployer Plan
from any member of the ERISA Group concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan
is, or is expected to be, insolvent (within the meaning of Section
4245 of ERISA), or in “critical” status (within the
meaning of Section 432 of the Internal Revenue Code or Section 305
of ERISA); (i) the imposition of any liability under Title IV of
ERISA, other than for PBGC premiums due but not delinquent under
Section 4007 of ERISA, upon any member of the ERISA Group
or the imposition of
any Lien in favor of the PBGC under Title IV of ERISA on any member
of the ERISA Group; or (j) a determination that a Plan is, or is
reasonably expected to be, in “at risk” status (within
the meaning of Section 430 of the Internal Revenue Code or Section
303 of ERISA).
“ERISA Group” means the Loan
Parties and their Subsidiaries and all members of a controlled
group of corporations and all trades or businesses (whether or not
incorporated) under common control, which, together with the Loan
Parties and any of their Subsidiaries, is treated as a single
employer under Section 414 of the Internal Revenue
Code.
“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” means any
of the events specified in Section 11.1, provided that any
requirement for notice or lapse of time or any other condition has
been satisfied.
16
“Excluded Swap Obligation” means,
with respect to any Loan Party, any Swap Obligation if, and to the
extent that, all or a portion of the Guarantee of such Loan Party
of, or the grant by such Loan Party of a security interest to
secure, such Swap Obligation (or any Guarantee thereof) is or
becomes illegal under the Commodity Exchange Act or any rule,
regulation or order of the Commodity Futures Trading Commission (or
the application or official interpretation of any thereof) by
virtue of such Loan Party’s failure for any reason to
constitute an “eligible contract participant” as
defined in the Commodity Exchange Act and the regulations
thereunder at the time the Guarantee of such Loan Party or the
grant of such security interest becomes effective with respect to
such Swap Obligation. If a Swap Obligation arises under a master
agreement governing more than one swap, such exclusion shall apply
only to the portion of such Swap Obligation that is attributable to
swaps for which such Guarantee or security interest is or becomes
illegal.
“Excluded Taxes” means any
of the following Taxes imposed on or with respect to any recipient
of any payment to be made by or on account of any obligation of any
Loan Party hereunder, or required to be withheld or deducted from a
payment to such a recipient, (a) Taxes imposed on or measured by
net income (however denominated), franchise Taxes, and branch
profits Taxes, in each case, (i) imposed as a result of such
recipient being organized under the laws of, or having its
principal office or, in the case of any Lender, its applicable
lending office located in, the jurisdiction imposing such Tax (or
any political subdivision thereof) or (ii) that are Other
Connection Taxes, (b) in the case of a Lender, U.S. federal
withholding Taxes imposed on amounts payable to or for the account
of such Lender with respect to an applicable interest in a Loan or
Commitment pursuant to a law in effect on the date on which (i)
such Lender acquires such interest in the Loan or Commitment (other
than pursuant to an assignment request by the Borrower under
Section 4.5) or (ii) such Lender changes it lending office, except
in each case to the extent that, pursuant to Section 3.12, amounts
with respect to such Taxes were payable either to such
Lender’s assignor immediately before such Lender became a
party hereto or to such Lender immediately before it changed its
lending office, (c) Taxes attributable to such recipient’s
failure to comply with Section 3.12(c), and (d) any withholding
Taxes imposed under FATCA.
“Existing Dividend Policies”
means the dividend and
distribution policy or practice with respect to dividends,
distributions or other payments to holders of the Parent
Guarantor’s Equity Interests (as detailed in the Parent
Guarantor’s Articles of Incorporation and the offering
circular dated November 16, 2018 with respect to the common stock
of the Parent Guarantor, each as in effect as of the Effective Date
and delivered to the Administrative Agent) or the HCM Mezzanine
Debt, in each case as in effect as of the Effective
Date.
“Existing Preferred Equity”
means the Series B Preferred.
“Extension Request” has the
meaning given that term in Section 2.13.
“Facility” means this
Revolving Credit Facility.
“Fair Market Value” means,
with respect to (a) a security listed on a national securities
exchange or the NASDAQ National Market, the last sale price of such
security as reported on such exchange or market by any widely
recognized reporting method customarily relied upon by financial
institutions and (b) with respect to any other property, the price
which could be negotiated in an arm’s-length free market
transaction, for cash, between a willing seller and a willing
buyer, neither of which is under pressure or compulsion to complete
the transaction.
17
“FASB ASC” means the
Accounting Standards Codification of the Financial Accounting
Standards Board.
“FATCA” means any Taxes
imposed by Sections 1471 through Section 1474 of the Internal
Revenue Code as of the date of this Agreement (or any amended or
successor version that is substantively comparable and not
materially more onerous to comply with), any current or future
regulations or official interpretations thereof, any applicable
intergovernmental agreements between a non-U.S. jurisdiction and
the United States with respect thereto and any agreements entered
into pursuant to Section 1471(b)(1) of the Internal Revenue Code,
and any fiscal or regulatory legislation, rules or practices
adopted pursuant to any intergovernmental agreement, treaty or
convention among Governmental Authorities and implementing such
Sections of the Internal Revenue Code.
“Federal Agency(ies)” means the
General Services Administration of the United States federal
government or other United States federal government
agency.
“Federal Funds Effective
Rate” means, for any day, the rate per annum (rounded
upward to the nearest 1/100th of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers on
such day, as published by the Federal Reserve Bank of New York on
the Business Day next succeeding such day, provided that (a) if
such day is not a Business Day, the Federal Funds Effective Rate
for such day shall be such rate on such transactions on the next
preceding Business Day as so published on the next succeeding Business Day, and (b)
if no such rate is so
published on such next succeeding Business Day, the Federal Funds
Effective Rate for such day shall be the average rate quoted to
Administrative Agent by federal funds dealers selected by the
Administrative Agent on such day on such transaction as determined
by the Administrative Agent.
“Fee Letter” means that certain fee
letter agreement dated August 21, 2019 and countersigned by the
Borrower on August 22, 2019, by and among the Borrower, KeyBank,
and the Titled Agent.
“Fees” means the fees
provided for or referred to in Section 3.6 and any other fees
payable by any Loan Party hereunder or under any other Loan
Document.
“Fixed Charge Coverage
Ratio” means, for any fiscal period, the ratio of (i)
Adjusted Consolidated EBITDA for such period to (ii) Consolidated
Fixed Charges for such period.
“Foreign Lender” means any
Lender that is organized under the laws of a jurisdiction other
than that in which the Borrower is resident for tax purposes. For
purposes of this definition, the United States, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
“Fronting Exposure” means,
at any time there is a Defaulting Lender, (a) with respect to the
L/C Issuer, such Defaulting Lender’s Commitment Percentage of
the outstanding Letter of Credit Liabilities other than Letter of
Credit Liabilities as to which such Defaulting Lender’s
participation obligation has been reallocated to other Lenders or
Cash Collateralized in accordance with the terms hereof, and (b)
with respect to the Swingline Lender, such Defaulting
Lender’s Commitment Percentage of outstanding Swingline Loans
other than Swingline Loans as to which such Defaulting
Lender’s participation obligation has been reallocated to
other Lenders.
18
“Fund” means any Person
(other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of
its activities.
“Funds from Operations” means, with
respect to a Person and for a given period, (a) net income (loss)
of such Person computed in accordance with GAAP (including net of
the greater of Capital Reserves and actual recurring capital
expenditures on its Real Estate Assets to the extent not already
included in such net income), calculated without regard to (i)
gains (or losses) from debt restructuring and sales of property
during such period, and (ii) charges for impairment of real estate,
plus (b) HCM Mezzanine Interest paid in cash during such period,
plus (c) depreciation with respect to such Person’s real
estate assets and amortization (other than amortization of deferred
financing costs) of such Person for such period, plus (d) other
non-cash items (other than amortization of deferred financing
costs), plus (e) costs in connection with acquisitions, all after
adjustment for Unconsolidated Affiliates, plus (f) fees, costs and
expenses incurred in connection with the consummation of the
transactions contemplated by the Loan Documents and the HCM
Mezzanine Debt Documents and the amendments thereto on or about the
Effective Date and the issuance of Series B Preferred by the Parent
Guarantor, in each case as reasonably approved by the
Administrative Agent, and (g) solely with respect to any applicable
period which includes a fiscal quarter ending on or before
September 30, 2020, certain non-recurring, one-time cash charges,
expenses and losses in an amount not to exceed the respective
amounts set forth on Schedule 1.1 with respect to
the items set forth therein, plus (h) extraordinary non-recurring
gains and losses. Notwithstanding the foregoing, for purposes of
calculating Funds from Operations, only the Loan Parties’ and
their respective Subsidiaries’ Equity Percentage of the items
comprising Funds from Operations of any non-Wholly-Owned Subsidiary
or Unconsolidated Affiliate (or, if applicable, such other amount
to which such Loan Party or Subsidiary is entitled or for which
Parent Guarantor or such Subsidiary are obligated based on an
arm’s length agreement), shall be included in such
determination of Funds from Operations.
“GAAP” means generally accepted
accounting principles in the United States of America as in effect
from time to time.
“Governmental Approvals”
means all authorizations, consents, approvals, licenses and
exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
“Governmental Authority”
means any national, state or local government (whether domestic or
foreign), any political subdivision thereof or any other
governmental, quasi-governmental, judicial, administrative, public
or statutory instrumentality, authority, body, agency, bureau,
commission, board, department or other entity (including, without
limitation, the Federal Deposit Insurance Corporation, the
Comptroller of the Currency or the Federal Reserve Board, any
central bank or any comparable authority) or any arbitrator with
authority to bind a party at law.
“Guarantor” has the meaning
set forth in the introductory paragraph hereof.
19
“Guaranty”,
“Guaranteed”, “Guarantying” or to
“Guarantee” as
applied to any obligation means and includes: (a) a guaranty (other
than by endorsement of negotiable instruments for collection or
deposit in the ordinary course of business), directly or
indirectly, in any manner, of any part or all of such obligation,
or (b) an agreement, direct or indirect, contingent or otherwise,
and whether or not constituting a guaranty, the practical effect of
which is to assure the payment or performance (or payment of
damages in the event of nonperformance) of any part or all of such
obligation whether by: (i) the purchase of securities or
obligations, (ii) the purchase, sale or lease (as lessee or lessor)
of property or the purchase or sale of services primarily for the
purpose of enabling the obligor with respect to such obligation to
make any payment or performance (or payment of damages in the event
of nonperformance) of or on account of any part or all of such
obligation, or to assure the owner of such obligation against loss,
(iii) the supplying of funds to or in any other manner investing in
the obligor with respect to such obligation, (iv) repayment of
amounts drawn down by beneficiaries of letters of credit, or (v)
the supplying of funds to or investing in a Person on account of
all or any part of such Person’s obligation under a Guaranty
of any obligation or indemnifying or holding harmless, in any way,
such Person against any part or all of such obligation. As the
context requires, “Guaranty” shall also mean
the Guaranty (as amended and/or restated from time to time) to
which each Guarantor is a party substantially in the form of
Exhibit
B.
“Hazardous Materials” means
all or any of the following: (a) substances that are defined or
listed in, or otherwise classified pursuant to, any applicable
Environmental Laws as “hazardous substances”,
“hazardous materials”, “hazardous wastes”,
“toxic substances” or any other formulation intended to
define, list or classify substances by reason of deleterious
properties such as ignitability, corrosivity, reactivity,
carcinogenicity, reproductive toxicity, “TCLP” toxicity
or “EP toxicity”; (b) oil, petroleum or petroleum
derived substances, natural gas, natural gas liquids or synthetic
gas and drilling fluids, produced waters and other wastes
associated with the exploration, development or production of crude
oil, natural gas or geothermal resources; (c) any flammable
substances or explosives or any radioactive materials; (d) asbestos
in any form; (e) toxic mold; and (f) electrical equipment which
contains any oil or dielectric fluid containing levels of
polychlorinated biphenyls in excess of fifty parts per
million.
“HCA Termination Payment”
means the payment of the Termination Fee pursuant to, and as
defined in, the Holmwood Management Agreement.
“HCM Mezzanine Debt” means
the unsecured term loan made or maintained by the HCM Mezzanine
Lenders pursuant to the HCM Mezzanine Debt Documents.
“HCM Mezzanine Debt
Documents” means the “Mezzanine Debt
Documents” as defined in the HCM Subordination
Agreement.
“HCM Mezzanine Interest” means the
interest paid or accrued under the HCM Mezzanine Loan
Agreement.
“HCM Mezzanine Lenders”
means, collectively, each of the Lenders under (and as defined in)
the HCM Mezzanine Loan Agreement.
20
“HCM Mezzanine Loan
Agreement” means the “Mezzanine Loan
Agreement” as defined in the HCM Subordination
Agreement.
“HCM Subordination
Agreement” means the Intercreditor and Subordination
Agreement of even date herewith entered into by the Administrative
Agent and the HCM Mezzanine Lenders with respect to the HCM
Mezzanine Debt.
“Holmwood Management
Agreement” means the management agreement dated as of
March 31, 2016, among Holmwood Capital Advisors, LLC, a Delaware
limited liability company, the Parent Guarantor and
Borrower.
“Implied Debt Service”
means, on any date of determination, the product of (a) the
aggregate Revolving Credit Exposure on such date (assuming
utilization of all outstanding and requested Loans), multiplied by (b) the constant derived
from the amortization (using a standard mortgage style financial
amortization) of $1.00 over a period of 30 years at an imputed
interest rate equal to the greatest of (x) 6.00% per annum, (y) the
sum of 250 basis points per annum and the weekly average yield on
United States Treasury Securities Constant Maturities Series issued
by the United States Government for a seven-year term as most
recently published by the Board of Governors of the Federal Reserve
System and Federal Reserve Statistical Release H.15(519) (or any
similar or successor publication selected by the Administrative
Agent) as of the date of determination, and (z) the actual weighted
average per annum rate of interest hereunder for all outstanding
Revolving Loans as of the last day of the calendar quarter most
recently ended as of the date of determination.
“Income Taxes” means for any
period the aggregate amount of taxes based on income or profits for
such period with respect to the operations of the Loan Parties and
their respective Subsidiaries (including, without limitation, all
corporate franchise, net worth and value added taxes assessed by
state and local governments in lieu thereof) determined in
accordance with GAAP, on a Consolidated basis (to the extent such
income and profits were included in computing Consolidated Net
Income).
“Increasing Lender” has the
meaning given that term in Section 2.15(a).
21
“Indebtedness” means, with
respect to any Person, at any time, the sum of (without
duplication) (i) all indebtedness (including principal, accrued
interest, fees and charges) for borrowed money (including
obligations evidenced by bonds, notes or similar instruments), (ii)
all obligations for the deferred purchase price of property or
services (excluding ordinary trade payables and accrued expenses
and deferred purchase price which is not yet a liquidated sum),
(iii) all reimbursement obligations with respect to letters of
credit or acceptances (whether or not the same have been presented
for payment), (iv) the aggregate amount of all Capital Lease
Obligations, (v) all indebtedness of the types described in clauses
(i) through (iv) of this definition of another Person secured by
any Lien on any property owned by such Person, whether or not such
indebtedness has been assumed by such Person (provided that, if the person
has not assumed or otherwise become liable in respect of such
indebtedness, such indebtedness shall be deemed to be the
outstanding principal amount (or maximum principal amount, if
larger) of such indebtedness or, if not stated or if
indeterminable, in an amount equal to the Fair Market Value of the
property to which such Lien relates, as determined in good faith by
such Person), (vi) all obligations of such Person to purchase,
redeem, retire, defease or otherwise make any payment in respect of
any mandatorily redeemable Equity Interests issued by such Person
(unless such mandatorily redeemable Equity Interests may be settled
100% in Equity Interests (other than mandatorily redeemable Equity
Interests) in the Borrower’s sole discretion), valued at the
greater of its voluntary or involuntary liquidation preference plus
accrued and unpaid dividends, (vii) all contingent obligations,
including all indebtedness of other Persons which such Person has
Guaranteed or is otherwise recourse to such Person (only to the
extent of the maximum amount for which such guaranteeing Person may
be liable pursuant to the terms of the instrument embodying such
guarantee) (including liability of a general partner in respect of
liabilities of a partnership in which it is a general partner which
would constitute “Indebtedness” hereunder, any
obligation to supply funds to or in any manner to invest directly
or indirectly in a Person, to maintain working capital or equity
capital of a Person or otherwise to maintain net worth, solvency or
other financial condition of a Person, to purchase indebtedness, or
to assure the owner of indebtedness against loss, including,
without limitation, through an agreement to purchase property,
securities, goods, supplies or services for the purpose of enabling
the debtor to make payment of the indebtedness held by such owner
or otherwise), (viii) all obligations under forward equity
commitments and off-balance sheet obligations, (ix) the net
obligations under any Derivatives Contract, in an amount equal to
the Derivatives Termination Value. Consolidated Indebtedness shall
include the pro-rata share of indebtedness from any unconsolidated
joint venture or non-wholly owned subsidiary (or such greater
amount for which the applicable person is liable by way of
agreement or otherwise), and (x) such Person’s pro rata share
of the Indebtedness (based upon its Equity Percentage in such
non-Wholly-Owned Subsidiaries or Unconsolidated Affiliates) of any
non-Wholly-Owned Subsidiary or Unconsolidated Affiliate of such
Person (or, if applicable, such higher amount for which such Person
is obligated based on an arm’s length agreement). Any
calculation of Indebtedness hereunder shall be made in a manner
consistent with the last sentence of Section 1.2 and shall be
adjusted to remove any impact of intangibles pursuant to FAS 141,
as issued by the Financial Accounting Standards Board in June of
2001. Notwithstanding the foregoing, the HCM Mezzanine Debt will be
deemed to be equity for the purposes of this definition and not
treated as Indebtedness so long as such HCM Mezzanine Debt remains
subject to the HCM Subordination Agreement.
“Indemnified Costs” has the
meaning given that term in Section 13.9(a).
“Indemnified Party” has the
meaning given that term in Section 13.9(a).
“Indemnified Taxes” means
(a) Taxes, other than Excluded Taxes, imposed on or with respect to
any payment made by or on account of any obligation of the Borrower
under any Loan Document, and (b) to the extent not otherwise
described in (a), Other Taxes.
“Indemnity Proceeding” has
the meaning given that term in Section 13.9(a).
“Initial Borrowing Base
Properties” means, collectively, the Real Estate
Assets set forth on Schedule 2, so long as such
Real Estate Assets constitute Eligible Properties.
“Intellectual Property” has
the meaning given that term in Section 7.19.
22
“Interest Payment Date” means
(a) as to any Daily LIBOR Loan or any Base Rate Loan, monthly
in arrears on the last Business Day of each calendar month
(commencing with the first full calendar month occurring after the
Effective Date) and the final maturity date of such Loan,
(b) as to any LIBOR Loan (other than a Daily LIBOR Loan), on
the last Business Day of each calendar month (commencing with the
first full calendar month occurring after the Effective Date),
(c) as to all LIBOR Loans, the date of any repayment,
prepayment or Conversion (on the amount repaid, prepaid, or
Converted), and on any date on which the principal balance of such
Loan is due and payable in full (whether at maturity, due to
acceleration, or otherwise).
“Interest Period” means with
respect to any LIBOR Loan, each period commencing on the date such
LIBOR Loan is made, or in the case of the Continuation of a LIBOR
Loan the last day of the preceding Interest Period for such Loan,
and, subject to availability, ending 1, 2, 3 or 6 months
thereafter, as the Borrower may select in a Notice of Borrowing,
Notice of Continuation or Notice of Conversion, as the case may be,
or as otherwise provided in Section 2.6 with respect to automatic
continuations of one-month Interest Periods, except that each
Interest Period that commences on the last Business Day of a
calendar month, or on a day for which there is no corresponding day
in the appropriate subsequent calendar month, shall end on the last
Business Day of the appropriate subsequent calendar month.
Notwithstanding the foregoing: (i) if any Interest Period for any
portion of a Revolving Loan would otherwise end after the Maturity
Date, such Interest Period shall end on the Maturity Date (unless
otherwise consented to by all Lenders hereunder); and (ii) each
Interest Period that would otherwise end on a day which is not a
Business Day shall end on the following Business Day (or, if such
immediately following Business Day falls in the next calendar
month, on the immediately preceding Business Day).
“Internal Revenue Code”
means the Internal Revenue Code of 1986, as amended.
“Investment” means, with
respect to any Person, any acquisition or investment (whether or
not of a Controlling interest) by such Person, by means of any of
the following: (a) the purchase or other acquisition of any Equity
Interest in another Person, (b) a loan, advance or extension of
credit (including rent receivables in the ordinary course of
business pursuant to bona fide Leases) to, capital contribution to,
Guaranty of Indebtedness of, or purchase or other acquisition of
any Indebtedness of, another Person, including any partnership or
joint venture interest in such other Person, (c) the purchase or
other acquisition (in one transaction or a series of transactions)
of assets of another Person that constitute the business or a
division or operating unit of another Person, or (d) the purchase
or acquisition of a Real Estate Asset. Any binding commitment to
make an Investment in any other Person, as well as any option of
another Person to require an Investment in such Person, shall
constitute an Investment. Except as expressly provided otherwise, for
purposes of determining
compliance with any covenant contained in a Loan Document, the
amount of any Investment shall be the amount actually invested,
without adjustment for subsequent increases or decreases in the
value of such Investment.
“KeyBank” means KeyBank
National Association, together with its successors and
assigns.
23
“L/C Collateral Account”
means a special non-interest bearing account maintained by the
Administrative Agent in connection with the cash-collateralization
of the Letter of Credit Liabilities.
“L/C Commitment Amount”
means $5,000,000.
“L/C Issuer” means KeyBank,
in its capacity as the issuer of Letters of Credit
hereunder.
“Lease(s)” means all present and
future leases, subleases, licenses, concessions or grants or other
possessory interests now or hereafter in force, whether oral or
written, covering or affecting any Real Estate Asset, or any
portion of any Real Estate Asset, and all modifications, extensions
or renewals thereof.
“Lender” means each
financial institution from time to time party hereto as a
“Lender”, together with its respective successors and
permitted assigns, and as the context requires, includes the
Swingline Lender; provided, however, the term “Lender” shall not include
any Lender or any of its Affiliates in such Person’s capacity
as a Specified Derivatives Provider.
“Lending Office” means, for
each Lender and for each Type of Loan, the office of such Lender
specified in such Lender’s Administrative Questionnaire, or
such other office of such Lender of which such Lender may notify
the Administrative Agent in writing from time to time.
“Letter of Credit” has the
meaning given that term in Section 2.2(a).
“Letter of Credit Documents”
means, with respect to any Letter of Credit, collectively, any
application therefor, any certificate or other document presented
in connection with a drawing under such Letter of Credit and any
other agreement, instrument or other document governing or
providing for (a) the rights and obligations of the parties
concerned or at risk with respect to such Letter of Credit or (b)
any collateral security for any of such obligations.
“Letter of Credit
Liabilities” means, without duplication, at any time
and in respect of any Letter of Credit, the sum of (a) the Stated
Amount of such Letter of Credit plus (b) the aggregate unpaid
principal amount of all Reimbursement Obligations of the Borrower
at such time due and payable in respect of all drawings made under
such Letter of Credit.
“LIBOR” means, for any LIBOR
Loan (other than a Daily LIBOR Loan) or any Interest Period (other
than a Daily Interest Period) therefor, the rate of interest,
rounded up to the nearest whole multiple of one-hundredth of one
percent (.01%), obtained by dividing (i) the average rate as shown
on Reuters Screen LIBOR01 or LIBOR02 Page (or, in the event such
rate does not appear on a Reuters page or screen, on any successor
or substitute page on such screen that displays such rate, or on
the appropriate page of such other information service that
publishes such rate from time to time as selected by the
Administrative Agent) at which deposits in Dollars are offered by
first class banks in the London interbank market at approximately
11:00 a.m. (London time) on the date that is two (2) Business Days
prior to the first day of such Interest Period with a maturity
approximately equal to such Interest Period and in an amount approximately equal to
the amount to which
such Interest Period relates, by (ii) a percentage equal to 1 minus
the stated maximum rate (stated as a decimal) of all reserves, if
any, required to be maintained with respect to Eurocurrency funding
(currently referred to as “Eurocurrency liabilities”)
as specified in Regulation D of the Board of Governors of the
Federal Reserve System (or against any other category of
liabilities which includes deposits by reference to which the
interest rate on LIBOR Loans is determined or any applicable
category of extensions of credit or other assets which includes
loans by an office of any Lender outside of the United States of
America). Any change in such maximum rate shall result in a change
in LIBOR on the date on which such change in such maximum rate
becomes effective. If as so
determined, LIBOR shall be less than zero, such rate shall be
deemed to be zero for the purposes of this Agreement and each other
Loan Document.
24
“LIBOR Loan” means a
Revolving Loan (or a portion thereof), other than a Base Rate Loan,
bearing interest at a rate based on LIBOR or the Daily LIBOR
Rate.
“Lien” means (a) any mortgage, deed
of trust, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement in
the nature of a security interest of any kind or nature whatsoever
(including (i) any conditional sale or other title retention
agreement, (ii) any easement, right of way or other encumbrance on
title to real property that materially adversely affects the value
of such real property, and (iii) any financing lease having
substantially the same economic effect as any of the foregoing),
including, without limitation, any attachment or judgment lien and
any lien imposed pursuant to Environmental Law; (b) any
arrangement, express or implied (including any deposit
arrangement), under which any property of such Person is
transferred, sequestered or otherwise identified for the purpose of
subjecting the same to the payment of Indebtedness or performance
of any other obligation in priority to the payment of the general,
unsecured creditors of such Person; (c) the filing of any financing
statement under the Uniform Commercial Code or its equivalent in
any jurisdiction, other than any precautionary filing not otherwise
constituting or giving rise to a Lien, including a financing
statement filed (i) in respect of a lease not constituting a
Capital Lease Obligation pursuant to Section 9-505 (or a successor
provision) of the UCC or its equivalent as in effect in an
applicable jurisdiction or (ii) in connection with a sale or other
disposition of accounts or other assets not prohibited by this
Agreement in a transaction not otherwise constituting or giving
rise to a Lien; and (d) any agreement by such Person to grant, give
or otherwise convey any of the foregoing.
“Loan” means a Revolving
Loan or a Swingline Loan or a portion thereof and
“Loans” means
all of such Revolving Loans and Swingline Loans
collectively.
“Loan Document” means,
collectively, (i) this Agreement, each Note, each Letter of Credit
Document, each Collateral Document, the HCM Subordination
Agreement, each Environmental Indemnities Agreement, each Guaranty,
each Compliance Certificate, each Borrowing Base Certificate, and
the Post-Closing Letter (if applicable), and (ii) each other
document or instrument now or hereafter executed and delivered by a
Loan Party in favor of the Administrative Agent and/or the Lenders
in connection with, pursuant to or relating to this Agreement (in
each case other than any Specified Derivatives
Contract).
“Loan Party” means the
Borrower and each Guarantor and “Loan Parties” means all of such
Persons collectively.
“Management Agreement(s)”
means, individually and collectively, (i) the asset management
agreement among the Parent Guarantor and/or Borrower, on the one
hand, and any asset manager, on the other hand, and (ii) each of
the property management agreements entered into with respect to a
Real Estate Asset.
25
“Maryland SDAT” means the Maryland
State Department of Assessments and Taxation.
“Material Adverse Effect”
means a material adverse effect on (a) the business, condition
(financial or otherwise), operations, performance or properties of
(i) the Borrower or the Parent Guarantor, (ii) the Loan Parties
taken as a whole, or (iii) the Borrowing Base Properties taken as a
whole, (b) the ability of Loan Parties to perform their obligations
under the Loan Documents to which they are a party from time to
time, or (c) the priority of any lien or security interest of
Administrative Agent relating to a material part of the Collateral
as provided under the terms of any Loan Document.
“Material Contract” means
any contract or other arrangement (other than Loan Documents and
Specified Derivatives Contracts), whether written or oral, to which
any Loan Party is a party as to which the breach, nonperformance,
cancellation or failure to renew by any party thereto could
reasonably be expected to have a Material Adverse Effect. Without
limitation of the foregoing, Material Contracts shall include, in
any event, each Approved Management Agreement.
“Maturity Date” means
October 21, 2022, or such earlier date on which the Loans shall
become due and payable pursuant to the terms hereof, as such date
is subject to extension as provided in Section 2.13, provided that if the Maturity
Date falls on a day that is not a Business Day, the Maturity Date
shall be the immediately preceding Business Day.
“Moody’s” means
▇▇▇▇▇’▇ Investors Service, Inc., and its
successors.
“Mortgage Note” means
a promissory note secured by a Lien on an interest in real property
of which the Parent Guarantor or any of its Subsidiaries is the
holder and retains the right of collection of all payments
thereunder.
“Mortgages” means each first-priority,
recorded mortgage, deed to secure debt or deed of trust in
substantially the form of Exhibit M hereto or otherwise
in form and substance reasonably satisfactory to the Administrative
Agent entered into from time to time by a Loan Party for the
benefit of the Administrative Agent, the Lenders the L/C Issuer and
the Specified Derivatives Providers in connection with the
inclusion of an Eligible Property as a Borrowing Base Property,
granting to the Administrative Agent, for the benefit of itself,
the Lenders, the L/C Issuer and the Specified Derivatives
Providers, a perfected first priority Lien in such Eligible
Property.
“Multiemployer Plan” means
at any time a multiemployer plan within the meaning of Section
4001(a)(3) of ERISA to which any member of the ERISA Group is then
making or accruing an obligation to make contributions or has
within the preceding six plan years made contributions, including
for these purposes any Person which ceased to be a member of the
ERISA Group during such six year period.
“Negative Pledge” means,
with respect to a given asset, any provision of a document,
instrument or agreement (other than any Loan Document) which
prohibits or purports to prohibit the creation or assumption of any
Lien on such asset as security for Indebtedness of the Person
owning such asset or any other Person.
26
“Net Proceeds” means with
respect to any Equity Issuance by a Person, the aggregate amount of
all cash and the Fair Market Value of all other property (other
than securities of such Person being converted or exchanged in
connection with such Equity Issuance) received by such Person in
respect of such Equity Issuance net of investment banking fees,
legal fees, accountants’ fees, underwriting discounts and
commissions, listing fees, financial printing costs and other
customary fees and expenses actually incurred by such Person in
connection with such Equity Issuance.
“Non-Borrowing Base Property” means
any Real Estate Asset of the Parent Guarantor and its Subsidiaries
that is not a Borrowing Base Property.
“Non-Consenting Lender”
means any Lender that does not approve any consent, waiver or
amendment that (a) requires the approval of all Lenders or all
affected Lenders in accordance with the terms of Section 13.6 and (b) has been
approved by Requisite Lenders.
“Non-Defaulting
Lender” means, at any time, each Lender that is not a
Defaulting Lender at such time.
“Non-Recourse Exclusions”
means, with respect to any Non-Recourse Indebtedness of any Person,
(a) customary exclusions for actual losses incurred by a lender in
connection with such Non-Recourse Indebtedness that are (i) are
based on fraud, intentional or material misrepresentation,
misappropriation of funds, gross negligence or willful misconduct,
(ii) result from intentional waste at the Real Estate Asset
securing such Non-Recourse Indebtedness, (iii) arise from the
presence of hazardous or toxic substances, materials or wastes on
the Real Estate Asset securing such Non-Recourse Indebtedness; or
(iv) are the result of any unpaid real estate taxes and assessments
or insurance if sufficient cash flow from the real estate exists;
(b) customary exclusions for the actual loss or repayment in full
of such Non-Recourse Indebtedness resulting from (i) the
borrowing Subsidiary and/or its assets becoming the subject of a
voluntary or collusive involuntary bankruptcy, insolvency or
similar proceeding, (ii) interference with the exercise by the
lender under such Non-Recourse Indebtedness of the remedies
thereunder, (iii) the transfer of the borrowing Subsidiary and/or
its assets in breach of the terms of such Non-Recourse Indebtedness
or (iv) are the result of the breach by the borrowing Subsidiary of
the special purpose entity provisions under such Non-Recourse
Indebtedness; or (c) any other exclusions as are usual and
customary in the reasonable determination of the Administrative
Agent or are otherwise permitted by the Administrative
Agent.
“Non-Recourse Indebtedness”
means, with respect to a Person, Indebtedness of such Person which
is secured by one or more parcels of real estate or interests
therein or equipment and which is not a general obligation of such
Person, the holder of such Indebtedness having recourse solely to
the parcels of real estate securing such Indebtedness or the direct
owner of such real estate, the leases thereon and the rents,
profits and equity thereof or equipment, as applicable (except for
recourse against the general credit of the Person obligated thereon
for any Non-Recourse Exclusions), provided that in calculating
the amount of Non-Recourse Indebtedness at any time, the amount of
any Non-Recourse Exclusions which are the subject of a claim and
action shall not be included in the Non-Recourse Indebtedness but
shall constitute Recourse Indebtedness.
27
“Note” means a Revolving
Note or a Swingline Note. In the sole discretion of Administrative
Agent, a Note may take the form of allonges to, and amendments and
restatements of, existing notes.
“Notice of Borrowing” means
a notice in the form of Exhibit C to be delivered to
the Administrative Agent pursuant to Section 2.1(b) evidencing the
Borrower’s request for a borrowing of Revolving
Loans.
“Notice of Continuation”
means a notice in the form of Exhibit D to be delivered to
the Administrative Agent pursuant to Section 2.8 evidencing the
Borrower’s request for the Continuation of a LIBOR
Loan.
“Notice of Conversion” means
a notice in the form of Exhibit E to be delivered to
the Administrative Agent pursuant to Section 2.9 evidencing the
Borrower’s request for the Conversion of a Loan (or a portion
thereof) from one Type to another Type.
“Notice of Swingline
Borrowing” means a notice in the form of Exhibit F to be delivered to
the Administrative Agent pursuant to Section 2.3 evidencing the
Borrowers’ request for a Swingline Loan.
“Obligations” means,
individually and collectively: (a) the aggregate principal balance
of, and all accrued and unpaid interest on, all Loans; (b) all
Reimbursement Obligations and all other Letter of Credit
Liabilities; (c) all other indebtedness, liabilities, obligations,
covenants and duties of the Borrower and the other Loan Parties
owing to the Administrative Agent or any Lender of every kind,
nature and description, under or in respect of this Agreement or
any of the other Loan Documents, including without limitation, the
Fees and indemnification obligations, whether direct or indirect,
absolute or contingent, due or not due; and (d) Specified
Derivatives Obligations (other than any Excluded Swap
Obligations).
“Occupancy Rate” means, with
respect to any Borrowing Base Property on the date of
determination, the ratio, expressed as a percentage, of (a)
aggregate leasable square footage of such Borrowing Base Property
that is actually occupied or pre-leased (but not yet occupied) by
non-Affiliate tenants that are not the subject of any voluntary or
involuntary bankruptcy or insolvency proceeding and are paying rent
at market rates pursuant to binding leases as to which no monetary
default has occurred and has continued for a period in excess of 60
days to (b) the total leasable square footage of such Borrowing
Base Property.
“OFAC” means U.S.
Department of the Treasury’s Office of Foreign Assets Control
and any successor Governmental Authority.
“Operating Account” means that
certain account no. xxxx-xxxx-8367, established by Borrower with
Administrative Agent.
“Other Connection Taxes”
means, with respect to any recipient
of any payment to be made by or on account of any obligation
of any Loan Party hereunder, Taxes
imposed as a result of a present or former connection between such
recipient and the jurisdiction imposing such Tax (other than
connections arising from such recipient having executed, delivered,
become a party to, performed its obligations under, received
payments under, received or perfected a security interest under,
engaged in any other transaction pursuant to or enforced any Loan
Document, or sold or assigned an interest in any Loan or Loan
Document).
28
“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
4.5)
“Parent Guarantor” has the
meaning set forth in the introductory paragraph
hereof.
“Parent Guarantor’s Articles of
Incorporation” means the Articles of Incorporation of
the Parent Guarantor filed on March 11, 2016 with the Maryland
SDAT, as amended by the “Articles Supplementary” filed
on April 4, 2016 with the Maryland SDAT, and as further amended by
the “Articles Supplementary Establishing and Fixing the
Rights and Preferences of a Series of Preferred Stock” filed
with the Maryland SDAT on March 14, 2019, collectively, as the same
may be in effect on the Effective Date.
“Participant” has the
meaning given that term in Section 13.5(d).
“Participant Register” has
the meaning given that term in Section 13.5(d).
“PBGC” means the Pension
Benefit Guaranty Corporation and any successor agency.
“Permitted Liens” means: (a)
Liens securing taxes, assessments and other charges or levies
imposed by any Governmental Authority (excluding any Lien imposed
pursuant to any of the provisions of ERISA or pursuant to any
Environmental Laws) or the claims of materialmen, mechanics,
carriers, warehousemen or landlords for labor, materials, supplies
or rentals incurred in the ordinary course of business, in each
case under this clause (a) which are not at the time required to be
paid or discharged under Section 8.6; (b) Liens
consisting of deposits or pledges made, in the ordinary course of
business, in connection with, or to secure payment of, obligations
under workers’ compensation, unemployment insurance or
similar Applicable Laws; (c) Liens consisting of encumbrances in
the nature of zoning restrictions, easements, and rights or
restrictions of record on the use of real property, which do not
materially detract from the value of such property or materially
and adversely impair the intended use thereof in the business of
such Person and, with respect to any Borrowing Base Property, only
to the extent such encumbrances have been approved in the
applicable title policy issued in favor of the Administrative
Agent; (d) the rights of tenants under leases or subleases not
interfering with the ordinary conduct of business of such Person
(and, with respect to any Borrowing Base Property, including only
rights as a tenant and not including any rights of first refusal or
option to purchase any portion of the applicable Real Estate Asset
except as approved by the Administrative Agent in writing in its
sole and absolute discretion); (e) Liens in favor of the
Administrative Agent for the benefit of itself, the Lenders, the
L/C Issuer and the Specified Derivatives Providers; (f) normal and
customary rights of setoff upon deposits of cash in favor of banks
or other depositary institutions; and (g) Liens of a collection
bank arising under Section 4-210 of the Uniform Commercial Code on
items in the course of collection.
29
“Person” means an
individual, corporation, partnership, limited liability company,
association, trust or unincorporated organization, or a government
or any agency or political subdivision thereof.
“Plan” means an employee
pension benefit plan (other than a Multiemployer Plan) which is
covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Internal Revenue Code and either
(a) is maintained, or contributed to, by any member of the ERISA
Group for employees of any member of the ERISA Group or (b) has at
any time within the preceding six years been maintained, or
contributed to, by any Person which was at such time a member of
the ERISA Group for employees of any Person which was at such time
a member of the ERISA Group.
“Pledge and Security Agreement”
means collectively, that certain Pledge and Security Agreement
dated as of the Effective Date by and between Borrower and the
Administrative Agent, as the same may be amended from time to time
and any other Pledge and Security Agreement that may be entered
into from time to time by and between a Loan Party and the
Administrative Agent.
“Pledged Entity(ies)”
means each Subsidiary Guarantor, the Equity Interests of which are
pledged by Borrower from time to time as security for the
Obligations pursuant to the Pledge and Security
Agreement.
“Post-Closing Letter” means
that certain letter agreement dated as of the Effective Date by the
Borrower in favor of the Administrative Agent regarding
post-closing obligations of the Loan Parties.
“Post-Default Rate” means a
rate per annum equal to 2.0% in excess of the rate otherwise
applicable to the relevant Obligations; provided, that when such term
is used with respect to Obligations other than Loans, the
“Post-Default Rate” shall mean a rate per annum equal
to the Base Rate plus the Applicable Margin for Revolving Loans, in
each case as in effect from time to time, plus 2.0%.
“Potential Borrowing Base
Properties” means each of (i) the Cape Canaveral
Property and (ii) the Potential CMBS Properties.
“Potential CMBS Properties” means
each of (i) ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, (ii) ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and (iii) ▇▇▇ ▇.▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, to the extent such Real Estate
Assets have been refinanced and would meet the conditions of being
an Eligible Property hereunder.
“Preferred Dividends” means,
for any period and without duplication, all Restricted Payments
paid in cash during such period on the Existing Preferred Equity
and on any other Preferred Equity Interests (other than on
Preferred Equity Interests that meet the Preferred Equity
Conditions to the reasonable satisfaction of the Administrative
Agent) issued by the Loan Parties or any of their
Subsidiaries.
30
“Preferred Equity
Conditions” means each of the following conditions:
(i) there is no required current cash pay rate with respect to such
Preferred Equity Interests, (ii) such Preferred Equity Interests do
not have any mandatory redemption, repurchase, liquidation or
similar repayment date, and (iii) such Preferred Equity Interests
convey no additional voting rights on the holders thereof than
those rights held by the holders of the common shares in the same
issuer and convey only a preference in payment.
“Preferred Equity Interests”
means, with respect to any Person, Equity Interests in such Person
which are entitled to preference or priority over any other Equity
Interest in such Person in respect of the payment of dividends or
distribution of assets upon liquidation or both (including, in any
event, the Existing Preferred Equity).
“Principal Office” means the
office of the Administrative Agent located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇, or such other office of the Administrative Agent
as the Administrative Agent may designate from time to
time.
“Property Management
Agreement(s)” means, individually and collectively,
each of the property management agreements entered into with
respect to a Borrowing Base Property, as such agreements are in
effect as of the Effective Date or such other property management
arrangements satisfactory to the Administrative Agent (it being
agreed that any property management agreement on substantially the
same terms as those in effect on the Effective Date shall be
satisfactory to the Administrative Agent).
“Property Management Fees”
means, with respect to any Real Estate Asset for any period, an
assumed amount equal to the greater of (a) 3% of the aggregate base
rent and percentage rent due and payable under leases with tenants
at such Real Estate Asset and (b) actual management fees, excluding
amounts that will be reclassified as “Regional”,
“Executive Management”, or “General and
Administrative” expenses.
“Property NOI” means, with
respect to any Real Estate Asset for any Reference Period, an
amount equal to (a) the aggregate net rental payment received by
the Borrower or a Subsidiary Guarantor in its capacity as the
lessor under a net or gross-modified Lease of all or a portion of
such property during such period (including any expense
reimbursements received from tenants but excluding rents from any
tenant in that is in payment default under its Lease, is the
subject of a bankruptcy or other insolvency proceeding (except in
the event such tenant’s Lease has been assumed in connection
with such bankruptcy or other insolvency proceeding) or has
otherwise gone dark), minus the amount of all
expenses incurred in connection with and directly attributable to
the ownership and operation of such Real Estate Asset for such
period, including, without limitation, Property Management Fees and
amounts accrued for the payment of real estate taxes and insurance
premiums, licenses, utilities, lease expense, waste disposal,
repairs, and security, but excluding (to the extent such items were
included in operating property expenses): Consolidated Interest
Expense, depreciation or amortization, income taxes, capital
expenditures, or gain or loss related to the sale of a Real Estate
Asset. Property NOI shall be calculated based on rents actually
received and shall exclude the effects of straight-line rent and
other non-cash items. Property NOI for any Reference Period shall
be adjusted on a pro forma basis to exclude any Property NOI from
Real Estate Assets sold or otherwise transferred during such
Reference Period and to include Property NOI for Real Estate Assets
acquired during such Reference Period in a manner satisfactory to
the Administrative Agent.
31
“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.
“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 13.20.
“Qualified Plan” means a
Benefit Arrangement or Plan that is intended to be tax-qualified
under Section 401(a) of the Internal Revenue Code.
“Real Estate Asset” means
any parcel of real property, and any improvements thereon, owned in
fee simple (or, solely with respect to the Cape Canaveral Property,
ground leased) by the Parent Guarantor, any of its Subsidiaries or
any Unconsolidated Affiliate.
“Recourse Indebtedness”
means that portion of any Indebtedness that is not Non-Recourse
Indebtedness.
“Reference Period” means any
period of four consecutive fiscal quarters of the
Borrower.
“Register” has the meaning
given that term in Section
13.5(c).
“Regulatory Change” means,
with respect to any Lender, any change effective after the
Agreement Date in Applicable Law (including without limitation,
Regulation D of the Board of Governors of the Federal Reserve
System) or the adoption or making after such date of any
interpretation, directive or request applying to a class of banks,
including such Lender, of or under any Applicable Law (whether or
not having the force of law and whether or not failure to comply
therewith would be unlawful) by any Governmental Authority or
monetary authority charged with the interpretation or
administration thereof or compliance by any Lender with any request
or directive regarding capital adequacy. Notwithstanding anything
herein to the contrary, (a) the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and
Consumer Protection Act and all requests, rules, guidelines or
directives thereunder or issued in connection therewith and (b) all
requests, rules, guidelines or directives promulgated by the Bank
for International Settlements, the Basel Committee on Banking
Supervision (or any successor or similar authority) or the United
States or foreign regulatory authorities, in each case pursuant to
Basel III, shall in each case be deemed to be a “Regulatory Change”,
regardless of the date enacted, adopted or issued.
“Reimbursement Obligation”
means the absolute, unconditional and irrevocable obligation of the
Borrower to reimburse the L/C Issuer for any drawing honored by the
L/C Issuer under a Letter of Credit and, without duplication, any
fees or expenses owed to the L/C Issuer or Lenders provided for in
such letter of Credit, any reimbursement agreement or letter of
credit application with respect to such Letter of Credit between
the L/C Issuer and the Borrower, or in this Agreement.
32
“Requisite Lenders” means,
as of any date, Lenders having more than fifty percent (50.00%) of
the aggregate amount of the Revolving Commitments or, if all of the
Revolving Commitments have been terminated or reduced to zero, the
principal amount of the aggregate outstanding Revolving Loans and
Letter of Credit Liabilities. Revolving Commitments and Letter of
Credit Liabilities held by Defaulting Lenders shall be disregarded
when determining the Requisite Lenders. At all times when two or
more Lenders (excluding Defaulting Lenders) are party to this
Agreement, the term “Requisite Lenders” shall
require at least two Lenders. For purposes of this Requisite Lender
definition, a Lender (other than the Swingline Lender) shall be
deemed to hold a Swingline Loan or a Letter of Credit Liability to
the extent such Lender has acquired a participation
therein.
“Reserve Accounts” means,
collectively, each of the reserve accounts established by the
Parent Guarantor and its Subsidiaries, including reserve accounts
for taxes and insurance, as requested by the Administrative Agent
from time to time pursuant to the terms of this
Agreement.
“Responsible Officer” means
with respect to the Loan Parties and their respective Subsidiaries,
the chief executive officer, president and chief financial officer
of such Loan Party or such Subsidiary, or, if any of the foregoing
is a partnership, such officer of its general partner, and with
respect to certifications relating to financial statements, the
Compliance Certificates and Borrowing Base Certificates, the chief
financial officer, treasurer, or chief accounting officer of the
Parent Guarantor and the Borrower.
“Restricted Payment” means:
(a) any dividend or other distribution, direct or indirect, on
account of any Equity Interest of any Loan Party or any of its
Subsidiaries now or hereafter outstanding, except a dividend
payable solely in Equity Interests of an identical or junior class
to the holders of that class; (b) any redemption, conversion,
exchange, retirement, sinking fund or similar payment, purchase or
other acquisition for value, direct or indirect, of any Equity
Interest of any Loan Party or any of its Subsidiaries now or
hereafter outstanding; (c) any payment made to retire, or to obtain
the surrender of, any outstanding warrants, options or other rights
to acquire any Equity Interests of any Loan Party or any of its
Subsidiaries now or hereafter outstanding; (d) any “annual
asset management fees,” “acquisition fees,”
“loan fees,” “property management fees,”
“disposition fees” and/or other fees or expenses
payable to any Affiliate of any Loan Party under any Management
Agreement or similar arrangement, or organizational or other
document; and (e) any payment under the HCM Mezzanine Debt
Documents.
“Revolving Commitment”
means, as to each Lender (other than the Swingline Lender), such
Lender’s obligation (a) to make Revolving Loans pursuant to
Section 2.1, (b) to
issue (in the case of the Lender then acting as the L/C Issuer) or
participate in (in the case of the other Lenders) Letters of Credit
pursuant to Sections
2.2(a) and 2.2(i), respectively (but in
the case of the Lender acting as the L/C Issuer excluding the
aggregate amount of participations in the Letters of Credit held by
the other Lenders), and (c) to participate in Swingline Loans
pursuant to Section
2.3(e), in each case, in an amount up to, but not exceeding,
the amount set forth for such Lender on Schedule 3 as such
Lender’s “Revolving Commitment Amount” (as such
Schedule 3 may be
updated from time to time by the Administrative Agent) or as set
forth in the applicable Assignment and Acceptance Agreement, as the
same may be increased from time to time pursuant to Section 2.15 or reduced from
time to time pursuant to Section 2.11 or as appropriate
to reflect any assignments to or by such Lender effected in
accordance with Section
13.5.
33
“Revolving Credit Exposure”
means, as to any Lender at any time, the aggregate principal amount
at such time of its outstanding Revolving Loans and such
Lender’s participation in Letter of Credit Liabilities and
Swingline Loans at such time, and the aggregate Revolving Credit
Exposure means all such amounts for all Lenders at such
time.
“Revolving Credit Facility”
means the aggregate Revolving Commitments and Revolving Loans of
the Lenders.
“Revolving Loan” means a
loan made by a Lender to the Borrower pursuant to Section 2.1(a).
“Revolving Note” has the
meaning given that term in Section 2.10(a).
“Sanctioned Entity” means
(a) an agency of the government of, (b) an organization directly or
indirectly Controlled by, or (c) a Person resident in, in each
case, a country that is subject to a sanctions program identified
on the list maintained by the OFAC or other Sanctions and published
from time to time, as such program may be applicable to such
agency, organization or Person.
“Sanctioned Person” means
any Person that is (i) listed on OFAC’s List of Specially
Designated Nationals and Blocked Persons, (ii) otherwise the
subject or target of Sanctions, to the extent United States persons
are prohibited from engaging in transactions with such a Person,
and (iii) 50 percent or greater owned or controlled by a Person
described in clause (i) or (ii) above
“Sanctions” means any
applicable sanctions prohibitions or requirements imposed by any
applicable executive order or by any applicable sanctions program
administered by the OFAC, the United States Department of State,
the Unites States Treasury, the United Nations Security Council,
the European Union or Her Majesty’s Treasury.
“Secured Indebtedness”
means, with respect to a Person as of any given date, the aggregate
principal amount of all Indebtedness of such Person outstanding at
such date and that is secured in any manner by any
Lien
“Securities Act” means the
Securities Act of 1933, as amended from time to time, together with
all rules and regulations issued thereunder.
“Series B Preferred” means
the 10.00% Series B Preferred Stock issued by the Parent Guarantor,
par value $0.01 per share, as provided for in the Parent
Guarantor’s Articles of Incorporation.
34
“SNDA” means a
Subordination, Non-Disturbance and Attornment
Agreement.
“Solvent” means, when used
with respect to any Person, that (a) the fair value and the fair
salable value of its assets are each in excess of the fair
valuation of its total liabilities (including all contingent
liabilities computed at the amount which, in light of all the facts
and circumstances existing at such time, represents the amount that
could reasonably be expected to become an actual and matured
liability); (b) such Person is able to pay its debts or other
obligations in the ordinary course as they mature; and (c) such
Person has capital not unreasonably small to carry on its business
and all business in which it proposes to be engaged.
“Specified Derivatives
Contract” means any Derivatives Contract, together
with any documentation relating directly thereto, that is made or
entered into at any time, or in effect at any time now or
hereafter, whether as a result of an assignment or transfer or
otherwise, between the Borrower and a Specified Derivatives
Provider.
“Specified Derivatives
Obligations” means all indebtedness, liabilities,
obligations, covenants and duties of the Borrower under or in
respect of any Specified Derivatives Contract, whether direct or
indirect, absolute or contingent, due or not due, liquidated or
unliquidated, and whether or not evidenced by any written
confirmation. Notwithstanding the foregoing, for any applicable
Loan Party, the Specified Derivatives Obligations shall not include
Swap Obligations that constitute Excluded Swap Obligations with
respect to such Loan Party.
“Specified Derivatives
Provider” means any Lender, or any Affiliate of a
Lender, that is a party to a Derivatives Contract at the time the
Derivatives Contract is entered into. For the avoidance of doubt,
any such Person that ceases to be a Lender, or an Affiliate of a
Lender, shall no longer be a Specified Derivatives
Provider.
“S&P” means Standard
& Poor’s Rating Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc., and its successors.
“Stated Amount” means the
amount available to be drawn by a beneficiary under a Letter of
Credit from time to time, as such amount may be increased or
reduced from time to time in accordance with the terms of such
Letter of Credit.
“Subsidiary” means, for any
Person, any corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of
the Equity Interests having ordinary voting power for the election
of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a
contingency) are at the time beneficially owned, or the management
of which is otherwise Controlled, directly, or indirectly through
one or more intermediaries, or both, by such Person, and shall
include all Persons the accounts of which are consolidated with
those of such Person pursuant to GAAP.
35
“Supported QFC” has the meaning
assigned to it in Section
13.20.
“Swap
Obligation” means any obligation to pay or perform
under any agreement, contract or transaction that constitutes a
“swap” within the meaning of section 1a(47) of the
Commodity Exchange Act.
“Swingline Commitment” means
the Swingline Lender’s obligation to make Swingline Loans
pursuant to Section
2.3 in an aggregate principal amount not to exceed
$10,000,000.
“Swingline Lender” means
KeyBank, together with its respective successors and
assigns.
“Swingline Loan” means a
loan made by the Swingline Lender to the Borrower pursuant to
Section
2.3(a).
“Swingline Note” means the
promissory note of the Borrower payable to the Swingline Lender in
a principal amount equal to the amount of the Swingline Commitment
as originally in effect and otherwise duly completed, substantially
in the form of Exhibit
G.
“Swingline Termination Date”
means the date which is 7 Business Days prior to the Termination
Date for Revolving Commitments.
“Taking” means the taking or
appropriation (including by deed in lieu of condemnation) of any
Borrowing Base Property, or any part thereof or interest therein,
whether permanently or temporarily, for public or quasi-public use
under the power of eminent domain, by reason of any public
improvement or condemnation proceeding, or in any other manner or
any damage or injury or diminution in value through condemnation,
inverse condemnation or other exercise of the power of eminent
domain.
“Tangible Net Worth” means,
on any date of determination, on a Consolidated basis for the
Parent Guarantor and its Subsidiaries, the sum of (a) consolidated
Total Asset Value on such date minus (b) the Consolidated
Total Indebtedness of the Parent Guarantor and its Subsidiaries on
such date.
“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.
“Termination
Date” means the date upon
which all Commitments have terminated, no Letters of Credit are
outstanding, and the Loans and Reimbursement Obligations, together
with all interest and fees related thereto and other Obligations
(other than unasserted, contingent indemnification obligations as
to which no unsatisfied claim has been asserted), have been
indefeasibly paid in full in cash.
36
“Titled Agent” means KeyBanc
Capital Markets Inc. in its capacity as Sole Bookrunner and Lead
Arranger.
“Total Asset Value” means,
on any date of determination, the sum (without duplication), on a
Consolidated basis, of (a) all unrestricted and unencumbered Cash
and Cash Equivalents of the Parent Guarantor and its Subsidiaries
on such date, (b) with respect to Borrowing Base Properties on such
date, the aggregate Borrowing Base Property Value of all such
Borrowing Base Properties on such date, (c) with respect to any
Non-Borrowing Base Properties on any such date, (i) to the extent
that the applicable Loan Party has delivered to a third party
lender a current (within the prior 12 months) M.A.I. appraisal
(prepared by a professional appraiser having at least the minimum
qualifications required under the applicable Governmental
Authority, including without limitation, FIRREA), the “as
is” valuation of such Real Estate Asset evidenced by such
appraisal; or (ii) if no such appraisal is obtained, at the
undepreciated book value of such Real Estate Asset, determined in
accordance with GAAP, in each case as reasonably acceptable to the
Administrative Agent, and (d) subject to the limitations set forth
in Section 10.4,
the net book value of other assets of the type described in such
Section 10.4 of the
Parent Guarantor and its Subsidiaries as of such date, as
determined in accordance with GAAP; with Total Asset Value being
adjusted to include the Parent Guarantor’s and its
Subsidiaries’ Equity Percentage of the items covered by the
foregoing clauses (a) through (d) attributable to any
non-Wholly-Owned Subsidiary or Unconsolidated Affiliate on such
date; it being agreed that Cash and Cash Equivalents held in the
Operating Account and the tax and insurance Reserve Account (if
applicable) shall be treated as unrestricted and unencumbered for
purposes of this definition so long as they are otherwise
unencumbered and are available to be applied by the Borrower or the
Administrative Agent to satisfy the applicable obligations and no
Event of Default has occurred or is continuing.
Notwithstanding the
foregoing, for purposes of calculating Total Asset Value, (A) Total
Asset Value attributable to Unimproved Land shall not equal or
exceed 5.0% of Total Asset Value, (B) Total Asset Value
attributable to Development Assets shall not equal or exceed 5.0%
of Total Asset Value, (C) Total Asset Value attributable to
Mortgage Notes shall not equal or exceed 10.0% of Total Asset
Value; provided,
that in the case of any Mortgage Note in respect of which the
obligor is in default of any payment obligation or otherwise fails
to meet the requirements of the definition of Mortgage Note, the
value of such Mortgage Note shall be zero, (D) Total Asset Value
attributable to Investments by the Parent Guarantor and its
Subsidiaries in Unconsolidated Affiliates and non-Wholly-Owned
Subsidiaries shall not equal or exceed 10% of Total Asset Value,
and (E) the aggregate amount of Total Asset Value attributable to:
(i) Unimproved Land, (ii) Development Assets, (iii) Mortgage Notes,
and (iv) Investments by the Parent Guarantor and its Subsidiaries
in Unconsolidated Affiliates and non-Wholly-Owned Subsidiaries
shall not equal or exceed 25% of Total Asset Value.
37
“Total Leverage Ratio”
means, on any date of determination, (a) Consolidated Total
Indebtedness of the Parent Guarantor and its Subsidiaries on such
date divided by (b)
Total Asset Value of the Parent Guarantor and its Subsidiaries on
such date.
“Type” with respect to any
portion of a Revolving Loan, refers to whether such Loan is a LIBOR
Loan or Base Rate Loan.
“UCC” means the Uniform
Commercial Code as in effect in any applicable
jurisdiction.
“Unconsolidated Affiliate”
means, with respect to any Person, any other Person in which such
Person holds an Equity Interest, the financial results of which
Equity Interest would not be consolidated under GAAP with the
financial results of such Person on the consolidated financial
statements of such Person.
“Unimproved Land” means any
Real Estate Asset consisting of raw land that is not improved by
buildings, structures or improvements intended for income
production.
“United States” means the
United States of America (excluding territories
thereof).
“Unsecured Indebtedness”
means Indebtedness which is not Secured Indebtedness.
“U.S. Tax Compliance Certificate”
has the meaning specified in Section
3.12(c)(ii)(C).
“Weighted Average Remaining Lease
Term” means the average remaining lease term for the
Borrowing Base Properties, including both soft and firm term, and
including option or extension periods only to the extent they have
been validly exercised, with the lease term for each Borrowing Base
Property weighted by the Borrowing Base Adjusted NOI attributable
to such Borrowing Base Property. For any Borrowing Base Property
with more than one tenant Lease on such property, the allocation of
Borrowing Base Adjusted NOI associated with each such Lease shall
be made at the time such Borrowing Base Property is added to the
calculation of Borrowing Base Availability and calculated based on
the percentage of aggregate annual rental revenue of each
tenant.
“Wholly-Owned Subsidiary”
means any Subsidiary of a Person in respect of which all of the
equity securities or other ownership interests (other than, in the
case of a corporation, directors’ qualifying shares) are at
the time directly or indirectly owned or Controlled by such Person
or one or more other Subsidiaries of such Person or by such Person
and one or more other Subsidiaries of such Person.
“Withdrawal Liability” means
any liability as a result of a complete or partial withdrawal from
a Multiemployer Plan as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.
“Write-Down
and Conversion Powers” means, with respect to any EEA
Resolution Authority, the write-down and conversion powers of such
EEA Resolution Authority from time to time under the Bail-In
Legislation for the applicable EEA Member Country, which write-down
and conversion powers are described in the EU Bail-In Legislation
Schedule.
38
Unless
otherwise indicated, all accounting terms, ratios and measurements
shall be interpreted or determined in accordance with GAAP;
provided that, if at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any
Loan Document, and either the Borrower or the Requisite Lenders
shall so request, the Administrative Agent, the Lenders and the
Borrower shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of
such change in GAAP (subject to the approval of the Requisite
Lenders); provided further that, until so amended, (i) such ratio
or requirement shall continue to be computed in accordance with
GAAP prior to such change therein and (ii) the Borrower shall
provide to the Administrative Agent and the Lenders financial
statements and other documents required under this Agreement or as
reasonably requested hereunder setting forth a reconciliation
between calculations of such ratio or requirement made before and
after giving effect to such change in GAAP. Without limiting the
foregoing, leases (including capital leases) shall continue to be
classified and accounted for on a basis consistent with that
reflected in the financial statements delivered by the Loan Parties
to the Administrative Agent prior to such change in GAAP
notwithstanding any change in GAAP relating thereto, for all
purposes under this Agreement unless the parties hereto shall enter
into a mutually acceptable amendment addressing such changes, as
provided for above. References in this Agreement (including the
schedules hereto) to “Sections”,
“Articles”, “Exhibits” and
“Schedules” are to sections, articles, exhibits and
schedules herein and hereto unless otherwise indicated. References
in this Agreement (including the schedules hereto) to any document,
instrument or agreement (a) shall include all exhibits, schedules
and other attachments thereto, (b) shall include all documents,
instruments or agreements issued or executed in replacement
thereof, to the extent permitted hereby and (c) shall mean such
document, instrument or agreement, or replacement or predecessor
thereto, as amended, supplemented, restated or otherwise modified
as of the date of this Agreement and from time to time thereafter
to the extent not prohibited hereby and in effect at any given
time. Wherever from the context it appears appropriate, each term
stated in either the singular or plural shall include the singular
and plural, and pronouns stated in the masculine, feminine or
neuter gender shall include the masculine, the feminine and the
neuter. The words “include,” “includes” and
“including” shall be deemed to be followed by the
phrase “without limitation.” Unless explicitly set
forth to the contrary, a reference to “Subsidiary”
means a Subsidiary of the Borrower or a Subsidiary of such
Subsidiary and a reference to an “Affiliate” means a
reference to an Affiliate of the Borrower. Titles and captions of
Articles, Sections, subsections and clauses in this Agreement are
for convenience only, and neither limit nor amplify the provisions
of this Agreement. Unless otherwise indicated, all references to
time are references to Eastern Time. 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 any election under Statement of Financial Accounting
Standards 159 (or any other financial accounting standard
promulgated by the Financial Accounting Standards Board having a
similar result or effect) to value any Indebtedness or other
liabilities of any Loan Party or any of its Subsidiaries at
“fair value”, as defined therein. Notwithstanding
anything to the contrary contained herein, in the event of a change
in GAAP after the Effective Date requiring all leases to be
capitalized, only those leases (assuming for purposes of this
sentence that they were in existence on the Effective Date) that
would constitute capital leases on the Effective Date shall be
considered capital leases (and all other such leases shall
constitute operating leases) and all calculations and deliverables
under this Agreement or the other Loan Documents shall be made in
accordance therewith (other than the financial statements delivered
pursuant to this Agreement; provided that, all such
financial statements delivered to the Administrative Agent and the
Lenders in accordance with the terms of this Agreement after the
date of such change in GAAP shall contain a schedule showing the
adjustments necessary to reconcile such financial statements with
GAAP as in effect immediately prior to such change).
Any
reference herein to a merger, transfer, amalgamation,
consolidation, assignment, sale, disposition or transfer, or
similar term, shall be deemed to apply to a division of or by a
limited liability company, limited partnership or trust, or an
allocation of assets to a series of a limited liability company,
limited partnership or trust (or the unwinding of such a division
or allocation) (each, a “Division”), as if it were a
merger, transfer, amalgamation, consolidation, assignment, sale or
transfer, or similar term, as applicable, to, of or with a separate
Person. Any Division of a limited liability company, limited
partnership or trust shall constitute a separate Person hereunder
(and each Division of any limited liability company, limited
partnership or trust that is a Subsidiary, joint venture or any
other like term shall also constitute such a Person or
entity).
Notwithstanding any
other provision of this Agreement or the other Loan Documents to
the contrary, when determining compliance with any financial
covenant (and in each case, related definitions and definitional
interpretations) or any availability calculation contained in any
of the Loan Documents, only the Parent Guarantor’s and its
Subsidiaries’ Equity Percentage of the financial attributes
of a Subsidiary that is a non-Wholly-Owned Subsidiary or an
Unconsolidated Affiliate shall be included, or, with respect to
Indebtedness of such non Wholly-Owned Subsidiary or Unconsolidated
Affiliate and related obligations, such greater percentage or
amount as to which such Person has agreed to be liable by way of an
arm’s length guaranty, indemnity for borrowed money, stop
loss agreement or other agreement.
39
ARTICLE II.
(a) Generally.
Subject to the terms and conditions hereof, including without
limitation Section
2.12, during the period from the Effective Date to but
excluding the Maturity Date, each Lender severally and not jointly
agrees to make Revolving Loans in Dollars to the Borrower in an
aggregate principal amount at any one time outstanding up to, but
not exceeding, the amount of such Lender’s Revolving
Commitment. Subject to the terms and conditions of this Agreement,
during the period from the Effective Date to but excluding the
Maturity Date, the Borrower may borrow, repay and reborrow
Revolving Loans hereunder.
(b) Requesting
Revolving Loans. The
Borrower shall give the Administrative Agent notice pursuant to a
Notice of Borrowing or telephonic notice of each borrowing of
Revolving Loans. Each Notice of Borrowing shall be delivered to the
Administrative Agent before 11:00 a.m. (i) in the case of LIBOR
Loans, on the date three Business Days prior to the proposed date
of such borrowing and (ii) in the case of Base Rate Loans, on the
date one Business Day prior to the proposed date of such borrowing.
Any such telephonic notice shall include all information to be
specified in a written Notice of Borrowing and shall be promptly
confirmed in writing by the Borrower pursuant to a Notice of
Borrowing sent to the Administrative Agent by facsimile or
electronic mail on the same day of the giving of such telephonic
notice. The Administrative Agent will transmit by posting to an
electronic platform or otherwise by facsimile or other electronic
transmission the Notice of Borrowing (or the information contained
in such Notice of Borrowing) to each Lender promptly upon receipt
by the Administrative Agent (but in any event no later than 2:00
p.m. on the date of receipt by the Administrative Agent). Each
Notice of Borrowing or telephonic notice of each borrowing shall be
irrevocable once given and binding on the Borrower.
(c) Disbursements
of Revolving Loan Proceeds. No later than 12:00 p.m. on the date
specified in the Notice of Borrowing, each Lender will make
available for the account of its applicable Lending Office to the
Administrative Agent at the Principal Office, in immediately
available funds, the proceeds of the Revolving Loan to be made by
such Lender. Subject to satisfaction of the applicable conditions
set forth in Article
VI for such borrowing, the Administrative Agent will make
the proceeds of such borrowing available to the Borrower no later
than 2:00 p.m. on the date and at the account specified by the
Borrower in such Notice of Borrowing.
40
(d) Assumptions
Regarding Funding by Lenders. With respect to Revolving Loans to be
made on or after the Effective Date, in the event that there is
more than one Lender at such time, unless the Administrative Agent
shall have been notified by any Lender that such Lender will not
make available to the Administrative Agent a Loan to be made by
such Lender in connection with any borrowing, the Administrative
Agent may assume that such Lender will make the proceeds of such
Loan available to the Administrative Agent in accordance with this
Section, and the Administrative Agent may (but shall not be
obligated to), in reliance upon such assumption, make available to
the Borrower the amount of such Loan to be provided by such Lender.
In such event, if such Lender does not make available to the
Administrative Agent the proceeds of such Loan, then such Lender
and the Borrower agree to pay to the Administrative Agent on demand
the amount of such Loan with interest thereon, for each day from
and including the date such Loan is made available to the Borrower
but excluding the date of payment to the Administrative Agent, at
(i) in the case of a payment to be made by such Lender, the greater
of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on
interbank compensation and (ii) in the case of a payment to be made
by the Borrower, the interest rate applicable to Base Rate Loans.
If the Borrower and such Lender shall pay the amount of such
interest to the Administrative Agent for the same or overlapping
period, the Administrative Agent shall promptly remit to the
Borrower the amount of such interest paid by the Borrower for
such period. If such Lender pays to the Administrative Agent the
amount of such Loan, the amount so paid shall constitute such
Lender’s Loan included in the borrowing. Any payment by the
Borrower shall be without prejudice to any claim the Borrower may
have against a Lender that shall have failed to make available the
proceeds of a Revolving Loan to be made by such
Lender.
(a) Letters
of Credit. Subject to
the terms and conditions of this Agreement, including without
limitation, Section
2.14, the L/C Issuer, on behalf of the Lenders, agrees to
issue for the account of the Borrower during the period from and
including the Effective Date to, but excluding, the date thirty
(30) days prior to the Maturity Date for Revolving Loans and
Revolving Commitments one or more letters of credit (each a
“Letter of
Credit”) up to a maximum aggregate Stated Amount at
any one time outstanding not to exceed the L/C Commitment
Amount.
(b) Terms
of Letters of Credit.
At the time of issuance, the amount, form, terms and conditions of
each Letter of Credit, and of any drafts or acceptances thereunder,
shall be subject to approval by the L/C Issuer and the Borrower.
Notwithstanding the foregoing, in no event may the expiration date
of any Letter of Credit extend beyond the earlier of (i) the date
one year from its date of issuance (or longer period as approved by
the Administrative Agent) or (ii) the Maturity Date for Revolving
Loans and Revolving Commitments; provided, however, a Letter of
Credit may contain a provision providing for the automatic
extension of the expiration date in the absence of a notice of
non-renewal from the L/C Issuer but in no event shall any such
provision permit the extension of the expiration date of such
Letter of Credit beyond the Maturity Date, unless otherwise agreed
to by all Lenders with a Revolving Commitment and subject to such
conditions as they may require in their sole and absolute
discretion.
41
(c) Requests
for Issuance of Letters of Credit. The Borrower shall give the
Administrative Agent and the L/C Issuer written notice at least 5
Business Days (or such shorter period as may be acceptable to
Administrative Agent in its sole discretion) prior to the requested
date of issuance of a Letter of Credit, such notice to describe in
reasonable detail the proposed terms of such Letter of Credit and
the nature of the transactions or obligations proposed to be
supported by such Letter of Credit, and in any event shall set
forth with respect to such Letter of Credit the proposed (i) Stated
Amount, (ii) beneficiary, and (iii) expiration date. The Borrower
shall also execute and deliver such customary letter of credit
application forms and other forms and agreements as reasonably
requested from time to time by the L/C Issuer. Provided the
Borrower has given the notice prescribed by the first sentence of
this subsection and delivered such forms and agreements referred to
in the preceding sentence, subject to the other terms and
conditions of this Agreement, including satisfaction of any
applicable conditions precedent set forth in Article VI, the L/C Issuer
shall issue the requested Letter of Credit on the requested date of issuance
for the benefit of the stipulated beneficiary but in no event prior
to the date 5 Business Days (or such shorter period as may be
acceptable to the Administrative Agent in its sole discretion)
following the date after which the L/C Issuer has received all of
the items required to be delivered to it under this subsection. The
L/C Issuer shall not at any time be obligated to issue any Letter
of Credit if such issuance would conflict with, or cause the
Administrative Agent or any Lender to exceed any limits imposed by,
any Applicable Law. References herein to “issue” and
derivations thereof with respect to Letters of Credit shall also
include extensions or modifications of any outstanding Letters of
Credit, unless the context otherwise requires. Upon the written
request of the Borrower, the L/C Issuer shall deliver to the
Borrower a copy of each issued Letter of Credit within a reasonable
time after the date of issuance thereof. To the extent any term of
a Letter of Credit Document is inconsistent with a term of any Loan
Document, the term of such Loan Document shall
control.
(d) Reimbursement
Obligations. Upon
receipt by the L/C Issuer from the beneficiary of a Letter of
Credit of any demand for payment under such Letter of Credit, the
L/C Issuer shall promptly notify the Borrower of the amount to be
paid by the L/C Issuer as a result of such demand and the date on
which payment is to be made by the L/C Issuer to such beneficiary
in respect of such demand; provided, however, the L/C
Issuer’s failure to give, or delay in giving, such notice
shall not discharge the Borrower in any respect from the applicable
Reimbursement Obligation. The Borrower hereby absolutely,
unconditionally and irrevocably agree to pay and reimburse the L/C
Issuer for the amount of each demand for payment under such Letter
of Credit on or prior to the date on which payment is to be made by
the L/C Issuer to the beneficiary thereunder, without presentment,
demand, protest or other formalities of any kind (other than notice
as provided in this subsection). Upon receipt by the L/C Issuer of
any payment in respect of any Reimbursement Obligation, the L/C
Issuer shall promptly pay to each Lender that has acquired a
participation therein under the second sentence of Section 2.2(i) such
Lender’s Commitment Percentage of such payment.
(e) Manner
of Reimbursement.
Upon its receipt of a notice referred to in the immediately
preceding subsection
(d), the Borrower shall advise the Administrative Agent and
the L/C Issuer whether or not the Borrower intends to borrow
hereunder to finance their obligation to reimburse the L/C Issuer
for the amount of the related demand for payment and, if they do,
the Borrower shall submit a timely request for such borrowing as
provided in the applicable provisions of this Agreement. If the
Borrower fails to so advise the Administrative Agent and the L/C
Issuer, or if the Borrower fails to reimburse the L/C Issuer for a
demand for payment under a Letter of Credit by the date of such
payment, then (i) if the applicable conditions contained in
Article VI would
permit the making of Revolving Loans, the Borrower shall be deemed
to have requested a borrowing of Revolving Loans (which shall be
Base Rate Loans) in an amount equal to the unpaid Reimbursement
Obligation and the Administrative Agent shall give each Lender
prompt notice of the amount of the Revolving Loan to be made
available to the L/C Issuer not later than 1:00 p.m. and (ii) if
such conditions would not permit the making of Revolving Loans, the
provisions of subsection
(j) of this Section shall apply. The limitations of
Section 3.5(a)
shall not apply to any borrowing of Revolving Loans under this
subsection.
(f) Effect
of Letters of Credit on Commitments. Upon the issuance by the L/C Issuer of
any Letter of Credit and until such Letter of Credit shall have
expired or been terminated, the Revolving Commitment of each Lender
shall be deemed to be utilized for all purposes of this Agreement
in an amount equal to the product of (i) such Lender’s
Commitment Percentage and (ii) the sum of (A) the Stated Amount of
such Letter of Credit plus (B) any related Reimbursement
Obligations then outstanding.
42
(g) L/C
Issuer’s Duties Regarding Letters of Credit; Unconditional
Nature of Reimbursement Obligations. In examining documents
presented in connection with drawings under Letters of Credit and
making payments under Letters of Credit against such documents, the
L/C Issuer shall only be required to use the same standard of care
as it uses in connection with examining documents presented in
connection with drawings under letters of credit in which it has
not sold participations and making payments under such letters of
credit. Neither the
Administrative Agent nor any of the Lenders shall be responsible
for, and the Borrower’s obligations in respect of the Letters
of Credit shall not be affected in any manner by, any acts or
omissions of, or misuse of the Letters of Credit by, the respective
beneficiaries of such Letters of Credit. In furtherance and not in
limitation of the foregoing, neither the L/C Issuer, the
Administrative Agent nor any of the Lenders shall be responsible
for, and the Borrower’s obligations in respect of the Letters
of Credit shall not be affected in any manner by, any of the
following except to the extent resulting from the gross negligence
or willful misconduct of the L/C Issuer, Administrative Agent or a
Lender, as applicable, as determined by a court of competent
jurisdiction in a final, non-appealable judgment: (i) the form,
validity, sufficiency, accuracy, genuineness or legal effects of
any document submitted by any party in connection with the
application for and issuance of or any drawing honored under any
Letter of Credit even if it should in fact prove to be in any or
all respects invalid, insufficient, inaccurate, fraudulent or
forged; (ii) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any
Letter of Credit, or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason; (iii) failure of the beneficiary of any
Letter of Credit to comply fully with conditions required in order
to draw upon such Letter of Credit; (iv) errors, omissions,
interruptions or delays in transmission or delivery of any
messages, by mail, cable, facsimile, electronic mail, telecopy or
otherwise, whether or not they be in cipher; (v) errors in
interpretation of technical terms; (vi) any loss or delay in the
transmission or otherwise of any document required in order to make
a drawing under any Letter of Credit, or of the proceeds thereof;
(vii) the misapplication by the beneficiary of the proceeds of any
drawing under any Letter of Credit; or (viii) any consequences
arising from causes beyond the control of the L/C Issuer, the
Administrative Agent or the Lenders. None of the above shall
affect, impair or prevent the vesting of any of the L/C
Issuer’s, Administrative Agent’s or any Lender’s
rights or powers hereunder. Any action taken or omitted to be taken
by the L/C Issuer under or in connection with any Letter of Credit,
if taken or omitted in the absence of gross negligence or willful
misconduct (as determined by a court of competent jurisdiction in a
final, non-appealable judgment), shall not create against the L/C
Issuer, the Administrative Agent or any Lender any liability to the
Borrower or any Lender. In this regard, the obligation of
the Borrower to reimburse the L/C Issuer for any drawing made under
any Letter of Credit, and to repay any Revolving Loan made pursuant
to the second sentence of the preceding subsection (e), shall be
absolute, unconditional and irrevocable and shall be paid strictly
in accordance with the terms of this Agreement and any other
applicable Letter of Credit Document under all circumstances
whatsoever, including without limitation, the following
circumstances: (A) any lack of validity or enforceability of any
Letter of Credit Document or any term or provisions therein; (B) any
amendment or waiver of or any consent to departure from all or any
of the Letter of Credit Documents; (C) the existence of any claim,
setoff, defense or other right which the Borrower may have at any
time against the L/C Issuer, the Administrative Agent, any Lender,
any beneficiary of a Letter of Credit or any other Person, whether
in connection with this Agreement, the transactions contemplated
hereby or in the Letter of Credit Documents or any unrelated
transaction; (D) any breach of contract or dispute between the
Borrower, the L/C Issuer, the Administrative Agent, any Lender or
any other Person; (E) any demand, statement or any other document
presented under a Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement
therein or made in connection therewith being untrue or inaccurate
in any respect whatsoever; (F) any non-application or
misapplication by the beneficiary of a Letter of Credit of the
proceeds of any drawing under such Letter of Credit; (G) payment by
the L/C Issuer under any Letter of Credit against presentation of a
draft or certificate which does not strictly comply with the terms
of such Letter of Credit; and (H) any other act, omission to act,
delay or circumstance whatsoever that might, but for the provisions
of this Section, constitute a legal or equitable defense to or
discharge of the Borrower’s Reimbursement
Obligations. Notwithstanding anything to the
contrary contained in this Section or Section 13.9, but not in
limitation of the Borrower’s unconditional obligation to
reimburse the L/C Issuer for any drawing made under a Letter of
Credit as provided in this Section and to repay any Revolving Loan
made pursuant to the second sentence of the preceding subsection (e), the Borrower
shall have no obligation to indemnify the L/C Issuer in respect of
any liability incurred by the L/C Issuer arising solely out of the
gross negligence or willful misconduct of the L/C Issuer in respect
of a Letter of Credit as determined by a court of competent
jurisdiction in a final, non-appealable judgment. Except as
otherwise provided in this Section, nothing in this Section shall
affect any rights the Borrower may have with respect to the gross
negligence or willful misconduct of the L/C Issuer with respect to
any Letter of Credit.
(h) Amendments,
Etc. The issuance by
the L/C Issuer of any amendment, supplement or other modification
to any Letter of Credit shall be subject to the same conditions
applicable under this Agreement to the issuance of new Letters of
Credit (including, without limitation, that the request therefor be
made through the Administrative Agent), and no such amendment,
supplement or other modification shall be issued unless either (i)
the respective Letter of Credit affected thereby would have
complied with such conditions had it originally been issued
hereunder in such amended, supplemented or modified form or (ii)
the L/C Issuer and the Requisite Lenders (or all of the Lenders if
required by Section
13.6) shall have consented thereto. In connection with any
such amendment, supplement or other modification, the Borrower
shall pay the Fees, if any, payable under the last sentence of
Section
3.6(b).
43
(i) Lenders’
Participation in Letters of Credit. Immediately upon the issuance by the
L/C Issuer of any Letter of Credit each Lender shall be deemed to
have irrevocably and unconditionally purchased and received from
the L/C Issuer, without recourse or warranty, an undivided interest
and participation to the extent of such Lender’s Commitment
Percentage of the liability of the L/C Issuer with respect to such
Letter of Credit, and each Lender thereby shall absolutely,
unconditionally and irrevocably assume, as primary obligor and not
as surety, and shall be unconditionally obligated to the L/C Issuer
to pay and discharge when due, such Lender’s Commitment
Percentage of the L/C Issuer’s liability under such Letter
of Credit. In addition,
upon the making of each
payment by a Lender to the L/C Issuer in respect of any Letter of
Credit pursuant to the immediately following subsection (j), such Lender
shall, automatically and without any further action on the part of
the L/C Issuer or such Lender, acquire (i) a participation in an
amount equal to such payment in the Reimbursement Obligation owing
to the L/C Issuer by the Borrower in respect of such Letter of
Credit and (ii) a participation in a percentage equal to such
Lender’s Commitment Percentage in any interest or other
amounts payable by the Borrower in respect of such Reimbursement
Obligation (other than the Fees payable to the L/C Issuer pursuant
to the last sentence of Section 3.6(b)).
(j) Payment
Obligation of Lenders. Each Lender severally agrees to pay
to the L/C Issuer on demand in immediately available funds in
Dollars the amount of such Lender’s Commitment Percentage of
each drawing paid by the L/C Issuer under each Letter of Credit to
the extent such amount is not reimbursed by the Borrower pursuant
to Section 2.2(d);
provided, however, that in respect of any drawing under any Letter
of Credit, the maximum amount that any Lender shall be required to
fund, whether as a Revolving Loan or as a participation, shall not
exceed such Lender’s Commitment Percentage of such drawing.
If the notice referenced in the second sentence of Section 2.2(e) is received by a
Lender not later than 11:00 a.m., then such Lender shall make such
payment available to the L/C Issuer not later than 2:00 p.m. on the
date of demand therefor; otherwise, such payment shall be made
available to the L/C Issuer not later than 1:00 p.m. on the next
succeeding Business Day. Each Lender’s obligation to make
such payments to the L/C Issuer under this subsection, and the L/C
Issuer’s right to receive the same, shall be absolute,
irrevocable and unconditional and shall not be affected in any way
by any circumstance whatsoever, including without limitation, (i)
the failure of any other Lender to make its payment under this
subsection, (ii) the financial condition of any Loan Party, (iii)
the existence of any Default or Event of Default, including any
Event of Default described in Section 11.1(f) or 11.1(g) or (iv) the termination
of the Commitments. Each such payment to the L/C Issuer shall be
made without any offset, abatement, withholding or deduction
whatsoever.
(k) Information
to Lenders. Upon the
request of any Lender from time to time, the L/C Issuer shall
deliver to such lender information reasonably requested by such
Lender with respect to each Letter of Credit issued by the L/C
Issuer then outstanding. Other than as set forth in this
subsection, the L/C Issuer shall have no duty to notify the Lenders
regarding the issuance or other matters regarding Letters of Credit
issued hereunder. The failure of the L/C Issuer to perform its
requirements under this subsection shall not relieve any Lender
from its obligations under Section 2.2(j).
(a) Swingline
Loans. Subject to the terms and conditions hereof, including
without limitation, Section 2.14, during the period
from the Effective Date to but excluding the Swingline Termination
Date, the Swingline Lender agrees to make Swingline Loans to the
Borrower in an aggregate principal amount at any one time
outstanding up to, but not exceeding, the amount of the Swingline
Commitment. If at any time the aggregate principal amount of the
Swingline Loans outstanding at such time exceeds the Swingline
Commitment in effect at such time, the Borrower shall immediately
pay the Administrative Agent for the account of the Swingline
Lender the amount of such excess. The aggregate outstanding
principal amount of Swingline Loans and Revolving Loans shall not
at any time exceed the aggregate Revolving Commitment. Subject to
the terms and conditions of this Agreement, the Borrower may
borrow, repay and reborrow Swingline Loans hereunder.
44
(b) Procedure
for Borrowing Swingline Loans. The Borrower shall give the
Administrative Agent and the Swingline Lender notice pursuant to a
Notice of Swingline Borrowing or telephonic notice of each
borrowing of a Swingline Loan. Each Notice of Swingline Borrowing
shall be delivered to the Swingline Lender no later than 1:00 p.m.
on the proposed date of such borrowing. Any such notice given
telephonically shall include all information to be specified in a
written Notice of Swingline Borrowing and shall be promptly
confirmed in writing by the Borrower pursuant to a Notice of
Swingline Borrowing sent to the Swingline Lender by facsimile or
electronic mail on the same day of the giving of such telephonic
notice. On the date of the requested Swingline Loan and subject to
satisfaction of the applicable conditions set forth in Article VI for such borrowing,
the Swingline Lender will make the proceeds of such Swingline Loan
available to the Borrower in Dollars, in immediately available
funds, at the account specified by the Borrower in the Notice of
Swingline Borrowing not later than 4:00 p.m. on such date (or 1:00
p.m. if the Borrower delivered the applicable Notice of Swingline
Borrowing to the Swingline Lender before 10:00 a.m. on the proposed
date of such borrowing).
(c) Interest.
Swingline Loans shall bear interest at a per annum rate equal to
the Base Rate plus the Applicable Margin. Interest payable on
Swingline Loans is solely for the account of the Swingline Lender.
All accrued and unpaid interest on Swingline Loans shall be payable
on the dates and in the manner provided in Section 2.4 with respect to
interest on Base Rate Loans (except as the Swingline Lender and the
Borrower may otherwise agree in writing in connection with any
particular Swingline Loan).
(d) Swingline
Loan Amounts, Etc.
Each Swingline Loan shall be in the minimum amount of $100,000 and
integral multiples of $100,000 or such other minimum amounts agreed
to by the Swingline Lender and the Borrower. Any voluntary
prepayment of a Swingline Loan must be in integral multiples of
$50,000 or the aggregate principal amount of all outstanding
Swingline Loans (or such other minimum amounts upon which the
Swingline Lender and the Borrower may agree) and in connection with
any such prepayment, the Borrower must give the Swingline Lender
prior written notice thereof no later than 2:00 p.m. on the date of
such prepayment. The Swingline Loans shall, in addition to this
Agreement, be evidenced by the Swingline Note.
45
(e) Repayment
and Participations of Swingline Loans. The Borrower agrees to repay each
Swingline Loan within five (5) Business Days after the date such
Swingline Loan was made; provided, that the proceeds of a Swingline
Loan may not be used to repay a Swingline Loan. Notwithstanding the
foregoing, the Borrower shall repay the entire outstanding
principal amount of, and all accrued but unpaid interest on, the
Swingline Loans on the Swingline Termination Date (or such earlier
date as the Swingline Lender and the Borrower may agree in
writing). In lieu of demanding repayment of any outstanding
Swingline Loan from the Borrower, the Swingline Lender may, on
behalf of the Borrower (which hereby irrevocably directs the
Swingline Lender to act on its behalf for such purpose), request a
borrowing of Revolving Loans that are Base Rate Loans from the
Lenders in an amount equal to the principal balance of such
Swingline Loan. The amount limitations of Section 3.5(a) shall not apply
to any borrowing of Revolving Loans that are Base Rate Loans made
pursuant to this subsection. The Swingline Lender shall give notice
to the Administrative Agent of any such borrowing of Revolving
Loans not later than 12:00 noon on the proposed date of such
borrowing and the Administrative Agent shall give prompt notice of
such borrowing to the Lenders. No later than 2:00 p.m. on such
date, each Lender will make available to the Administrative Agent
at the Principal Office for the account of the Swingline Lender, in
immediately available funds, the proceeds of the Revolving Loan to
be made by such Lender and, to the extent of such Revolving Loan,
such Lender’s participation in the Swingline Loan so repaid
shall be deemed to be funded by such Revolving Loan. The
Administrative Agent shall pay the proceeds of such Revolving Loans
to the Swingline Lender, which shall apply such proceeds to repay
such Swingline Loan. At the time each Swingline Loan is made, each
Lender shall automatically (and without any further notice or
action) be deemed to have purchased from the Swingline Lender,
without recourse or warranty, an undivided interest and
participation to the extent of such Lender’s Commitment
Percentage in such Swingline Loan. If the Lenders are prohibited from
making Revolving Loans required to be made under this subsection
for any reason, including without limitation, the occurrence of any
Default or Event of Default described in Section 11.1(f) or 11.1(g), upon notice from the
Administrative Agent or the Swingline Lender, each Lender severally
agrees to pay to the Administrative Agent for the account of the
Swingline Lender in respect of such participation the amount of
such Lender’s Commitment Percentage of each outstanding
Swingline Loan. If such amount is not in fact made available to the
Administrative Agent by any Lender, the Swingline Lender shall be
entitled to recover such amount on demand from such Lender,
together with accrued interest thereon for each day from the date
of demand thereof, at the Federal Funds Effective Rate. If such
Lender does not pay such amount forthwith upon demand therefor by
the Administrative Agent or the Swingline Lender, and until such
time as such Lender makes the required payment, the Swingline
Lender shall be deemed to continue to have outstanding Swingline
Loans in the amount of such unpaid participation obligation for all
purposes of the Loan Documents (other than those provisions
requiring the other Lenders to purchase a participation therein).
Further, such Lender shall be deemed to have assigned any and all
payments made of principal and interest on its Loans, and any other
amounts due such Lender hereunder, to the Swingline Lender to fund
Swingline Loans in the
amount of the participation in Swingline Loans that such Lender
failed to purchase pursuant to this Section until such amount has been purchased (as a
result of such assignment or otherwise). A Lender’s
obligation to make payments in respect of a participation in a
Swingline Loan shall be absolute and unconditional and shall not be
affected by any circumstance whatsoever, including without
limitation, (i) any claim of setoff, counterclaim, recoupment,
defense or other right which such Lender or any other Person may
have or claim against the Administrative Agent, the Swingline
Lender or any other Person whatsoever, (ii) the occurrence or
continuation of a Default or Event of Default (including without
limitation, any of the Defaults or Events of Default described in
Section 11.1.(f) or
11.1.(g)) or the
termination of the Commitments of any Lender, (iii) the existence
(or alleged existence) of an event or condition which has had or
could have a Material Adverse Effect, (iv) any breach of any Loan
Document by the Administrative Agent, any Lender or the Borrower or
(v) any other circumstance, happening or event whatsoever, whether
or not similar to any of the foregoing.
(a) Rates.
The Borrower shall pay to the Administrative Agent for the account
of each Lender interest on the unpaid principal amount of each Loan
made by such Lender for the period from and including the date of
the making of such Loan to but excluding the date such Loan shall
be paid in full, at the following per annum rates:
46
(i) during
such periods as such Loan is a Base Rate Loan, at the Base Rate (as
in effect from time to time) plus the Applicable
Margin;
(ii) during
such periods as such Loan is a LIBOR Loan (other than a Daily LIBOR
Loan), at LIBOR for such Loan for the Interest Period therefor plus
the Applicable Margin; and
(iii) during
such periods as such Loan is a Daily LIBOR Loan, at the Daily LIBOR
Rate plus the Applicable Margin.
Notwithstanding
the foregoing, while an Event of Default exists and upon the
request of the Requisite Lenders (and automatically in the case of
any Event of Default under Section 11.1(a), (f) or (g)), the
Borrower shall pay to the Administrative Agent for the account of
each Lender, the L/C Issuer, the Swingline Lender, and the
Administrative Agent, as the case may be, interest at the
Post-Default Rate on the outstanding principal amount of any Loan
made by such Lender, on all Reimbursement Obligations and on any
other amount payable by the Borrower hereunder or under the Notes
held by such Lender to or for the account of such Lender (including
without limitation, accrued but unpaid interest to the extent
permitted under Applicable Law).
(b) Accrual
and Payment of Interest. Interest shall accrue on any Loan from
and including the date such Loan is made to but excluding the date
of any prepayment or repayment thereof and shall be payable by the
Borrower on each Interest Payment Date. Accrued and unpaid interest
payable at the Post-Default Rate shall be payable from time to time
on demand. Promptly after the determination of any interest rate
provided for herein or any change therein, the Administrative Agent
shall give notice thereof to the Lenders to which such interest is
payable and to the Borrower. All determinations by the
Administrative Agent of an interest rate hereunder shall be
conclusive and binding on the Lenders and the Borrower for all
purposes, absent manifest error.
(c) Late
Charges. The Borrower
shall pay to the Administrative Agent for the account of each
applicable Lender, upon billing therefor, a late charge equal to
five percent (5%) of the amount of any payment of principal,
interest, or both, which is not paid within 5 days after the due
date therefor (other than any such payment constituting a bullet
payment due on the Maturity Date). Such late charge (i) shall be
payable in addition to, and not in limitation of, the Post-Default
Rate, (ii) shall be intended to compensate the Administrative Agent
and the Lenders for administrative and processing costs incident to
late payments, (iii) does not constitute interest, and (iv) shall
not be subject to refund or rebate or credited against any other
amount due.
There
may be no more than five different Interest Periods (inclusive of
any Daily Interest Periods) outstanding at the same
time.
The
Borrower shall repay the entire outstanding principal amount of,
and all accrued but unpaid interest on, the Loans on the Maturity
Date, or, if earlier, the date of the termination of the Revolving
Commitments and acceleration of the Loans in accordance with the
provisions of this Agreement.
47
(a) Optional.
Subject to Section
4.4, the Borrower may prepay any Loan at any time without
premium or penalty. The Borrower shall give the Administrative
Agent at least one Business Day’s prior written notice of the
prepayment of any Revolving Loan.
(b) Mandatory.
(i) If
at any time (A) the aggregate Revolving Credit Exposure exceeds the Borrowing Base
Availability at such time or (B) the aggregate Revolving Credit
Exposure exceeds the aggregate Revolving Commitments of all Lenders
at such time, then in either case, the Borrower shall, within two
(2) Business Days after the occurrence of such excess, pay to the
Administrative Agent for the accounts of the applicable Lenders the
amount of such excess.
(ii) To
the extent provided in Sections 8.15(a) and
(b), as applicable,
in the event there shall have occurred a casualty or a Taking with
respect to any Borrowing Base Property, insurance proceeds and
Condemnation Proceeds, as applicable, shall be applied to prepay
the Loans at the time and in the amount required pursuant to the
relevant provisions of Section 8.15.
(c) Application
of Prepayments.
Amounts paid under the preceding subsection (b) shall be applied
to pay all amounts of principal outstanding on the Swingline Loans
first; then to the Revolving Loans and any Reimbursement
Obligations pro rata to the Lenders in accordance with Section 3.2 second; and
finally, if any Letters of Credit are outstanding at such time, any
remaining amount shall be deposited into the L/C Collateral Account
for application to any Letter of Credit Liabilities. If the
Borrower is required to pay any outstanding LIBOR Loans by reason
of this Section prior to the end of the applicable Interest Period
therefor, the Borrower shall pay all amounts due under Section 4.4.
(d) Derivatives
Contracts. No
repayment or prepayment pursuant to this Section shall affect the
Borrower’s (or other Loan Party’s) obligations under
any Derivatives Contract between the Borrower (or other Loan Party)
and any Lender (or any Affiliate of any Lender).
48
So long
as no Event of Default shall exist, unless otherwise elected by the
Borrower in accordance with the provisions of this Section, upon
the expiration of the then-applicable one-month Interest Period,
all outstanding LIBOR Loans shall automatically be continued as
LIBOR Loans for the next successive one-month Interest Period,
provided that the Borrower may on any Business Day, with respect to
any LIBOR Loan, elect to maintain such LIBOR Loan or any portion
thereof as a LIBOR Loan by selecting a new Daily Interest Period or
two-, three-, or six-month Interest Period for such LIBOR Loan.
Each new Interest Period selected (or automatically continued)
under this Section shall commence on the last day of the
immediately preceding Interest Period. Unless a one-month Interest
Period is being continued automatically in accordance with the
terms hereof, each selection of a new Interest Period shall be made
by the Borrower giving to the Administrative Agent a Notice of
Continuation not later than 11:00 a.m. on the fourth Business Day
prior to the date of any such Continuation. Such notice by the
Borrower of a Continuation shall be by telephone or telecopy,
confirmed immediately in writing if by telephone, in the form of a
Notice of Continuation, specifying (a) the proposed date of such
Continuation, (b) the LIBOR Loans and portions thereof subject to
such Continuation and (c) the duration of the selected Interest
Period, all of which shall be specified in such manner as is
necessary to comply with all limitations on Loans outstanding
hereunder. Each Notice of Continuation shall be irrevocable by and
binding on the Borrower once given. Promptly after receipt of a
Notice of Continuation, the Administrative Agent shall notify each
Lender of the proposed Continuation (it being agreed that no such
notice shall be required for the automatic continuation of
one-month LIBOR Interest Periods). If the Borrower shall fail to
select in a timely manner a new Interest Period for any LIBOR Loan
having a two-month, three-month or six-month Interest Period in
accordance with this Section, then (x) so long as no Event of
Default shall exist, such Loan will be Converted to a LIBOR Loan
with a one-month Interest Period on the last day of the current
Interest Period therefor, and (y) if an Event of Default shall
exist, such Loan will automatically, on the last day of the current
Interest Period therefor, Convert into a Base Rate Loan
notwithstanding the first sentence of Section 2.9 or the
Borrower’s failure to comply with any of the terms of such
Section. In addition, Daily LIBOR Loans shall be automatically
continued as Daily LIBOR Loans, absent contrary direction from the
Borrower or the existence of an Event of Default.
The
Borrower may on any Business Day, upon the Borrower’s giving
of a Notice of Conversion to the Administrative Agent, Convert all
or a portion of a Revolving Loan of one Type into a Loan of another
Type; provided, however, that (i) if a Default shall exist, then a
Base Rate Loan may only be Converted to a LIBOR Loan with a
one-month Interest Period, and (ii) if an Event of Default shall
exist, then a Base Rate Loan may not be Converted to a LIBOR Loan.
Any Conversion of a LIBOR Loan into a Base Rate Loan shall be made
on, and only on, the last day of an Interest Period for such LIBOR
Loan. Each such Notice of Conversion shall be given not later than
11:00 a.m. on the Business Day prior to the date of any proposed
Conversion into Base Rate Loans and on the third Business Day prior
to the date of any proposed Conversion into LIBOR Loans. Promptly
after receipt of a Notice of Conversion, the Administrative Agent
shall notify each Lender of the proposed Conversion. Subject to the
restrictions specified above, each Notice of Conversion shall be by
telephone (confirmed immediately in writing) or email in the form
of a Notice of Conversion specifying (a) the requested date of such
Conversion, (b) the Type of Loan to be Converted, (c) the portion
of such Type of Loan to be Converted, (d) the Type of Loan such
Loan is to be Converted into and (e) if such Conversion is into a
LIBOR Loan, the requested duration of the Interest Period of such
Loan. Each Notice of Conversion shall be irrevocable by and binding
on the Borrower once given.
(a) Revolving
Notes. Upon the
request of any Lender through the Administrative Agent, the
Borrower shall execute and deliver to such Lender (through the
Administrative Agent) a promissory note substantially in the form
of Exhibit H (each
a “Revolving
Note”), which shall evidence such Lender’s
Revolving Loans and Revolving Commitment.
49
(b) Records.
The date, amount, interest rate, Type and duration of Interest
Periods (if applicable) of each Loan made by each Lender to the
Borrower, and each payment made on account of the principal
thereof, shall be recorded by such Lender on its books and such
entries shall be binding on the Borrower, absent manifest error;
provided, however, that the failure of a Lender to make any such
record shall not affect the obligations of the Borrower under any
of the Loan Documents.
(c) Lost,
Stolen, Destroyed or Mutilated Notes. Upon receipt by the Borrower of (i)
written notice from a Lender that a Note of such Lender has been
lost, stolen, destroyed or mutilated, and (ii) (A) in the case of
loss, theft or destruction, an unsecured agreement of indemnity
from such Lender in form reasonably satisfactory to the Borrower,
or (B) in the case of mutilation, upon surrender and cancellation
of such Note, the Borrower shall execute and deliver to such Lender
a new Note dated the date of such lost, stolen, destroyed or
mutilated Note.
Subject
to Section 2.14,
the Borrower shall have the right to terminate or reduce the
aggregate unused amount of the Revolving Commitments (for which
purpose use of the Revolving Commitments shall be deemed to include
the aggregate amount of Letter of Credit Liabilities and the
aggregate principal amount of all outstanding Swingline Loans) at
any time and from time to time without penalty or premium upon not
less than 3 Business Days prior written notice to the
Administrative Agent of each such termination or reduction, which
notice shall specify
the effective date thereof and the amount of any such reduction and
shall be irrevocable once given and effective only upon receipt by
the Administrative Agent; provided that unless otherwise
in connection with Borrower’s payment in full of the
Obligations in cash and termination of the Commitments, the
Borrower shall not voluntarily reduce the aggregate Revolving
Commitments to an aggregate amount of less than $30,000,000 at any
time. The Administrative Agent will promptly transmit such notice
to each Lender. The Revolving Commitments, once terminated or
reduced, may not be increased or reinstated.
If on
the date the Revolving Commitments are terminated or reduced to
zero (whether voluntarily, by reason of the occurrence of an Event
of Default, on the Maturity Date or otherwise), there are any
Letters of Credit outstanding hereunder, the Borrower shall, on
such date, pay to the Administrative Agent, for the benefit of the
Administrative Agent and the Lenders, an amount of money equal to
105% of the aggregate Stated Amount of such Letter(s) of Credit for
deposit into the L/C Collateral Account.
50
The
Borrower shall have the right, which may be exercised one (1) time,
to extend the Maturity Date by one twelve-month period. The
Borrower may exercise such right only by executing and delivering
to the Administrative Agent at least sixty (60) days but not more
than two hundred (200) days prior to the initial Maturity Date, a
written request for such extension (an “Extension Request”). The
Administrative Agent shall notify the Lenders if it receives an
Extension Request promptly upon receipt thereof. Subject to
satisfaction of the following conditions, the applicable Maturity
Date shall be extended for one twelve-month period effective upon
receipt by the Administrative Agent of the Extension Request and
payment of the fee referred to in the following clause (iv) (which fee shall be
due and payable on or before the initial Maturity Date then being
extended and as a condition to such extension): (i) immediately
prior to the date of such extension on the initial Maturity Date
and immediately after giving effect thereto, (x) no Default or
Event of Default shall exist, and (y) the representations and
warranties made or deemed made by the Borrower and each other Loan
Party in the Loan Documents to which any of them is a party, shall
be true and correct in all material respects (or in all respects to
the extent that such representations and warranties are already
subject to concepts of materiality) on and as of the date of such
extension with the same force and effect as if made on and as of
such date, except to the extent that such representations and
warranties expressly relate solely to an earlier date (in which
case such representations and warranties shall have been true and
correct in all material respects on and as of such earlier date),
(ii) unless otherwise agreed by the Administrative Agent, the
Administrative Agent shall have received, at least thirty (30) days
prior to the initial Maturity Date (or such shorter period as
agreed to in writing by the Administrative Agent), an updated
Appraisal for any Borrowing Base Property for which the Appraisal
previously delivered to the Administrative Agent is dated more than
twelve (12) months prior to the date of the Extension Request,
(iii) the Borrower shall have
delivered, a pro forma Compliance Certificate evidencing
compliance with the covenants set forth in Sections 10.1 through
10.4, and (iv) the
Borrower shall have paid the Fees payable under Section 3.6(c). On the date of
delivery of the Extension Request and immediately prior to the
effectiveness of the extension, the Borrower shall deliver to the
Administrative Agent a certificate from a Responsible Officer of
the Borrower certifying the matters referred to in the immediately
preceding clauses
(i)(x) and (i)(y).
Notwithstanding any
other term of this Agreement or any other Loan Document, no Lender
shall be required to make a Revolving Loan, the Swingline Lender
shall not be required to make a Swingline Loan, the L/C Issuer
shall not be required to issue, increase or extend a Letter of
Credit, and no reduction of the Revolving Commitments pursuant to
Section 2.11 shall
take effect, if immediately after the making of such Loan, the
issuance, increase or extension of such Letter of Credit or such
reduction in the Revolving Commitments, (a) the aggregate principal
amount of all outstanding Loans, together with the aggregate amount
of all Letter of Credit Liabilities, would exceed Borrowing Base
Availability at such time or (b) the aggregate principal amount of
all outstanding Loans, together with the aggregate amount of all
Letter of Credit Liabilities, would exceed the aggregate Revolving
Commitments of all Lenders at such time.
51
(a) Expansion
Requests. The
Borrower may from time to time elect to increase the Revolving
Commitments so long as, after giving effect thereto, the aggregate
amount of the Revolving Commitments hereunder does not exceed
$200,000,000. The Borrower may arrange for any such Revolving
Commitment increase to be provided by one or more Lenders (each
Lender so agreeing to an increase in its Revolving Commitment, an
“Increasing
Lender”), or by one or more new banks, financial
institutions or other entities (each such new bank, financial
institution or other entity, an “Augmenting Lender”) to
increase their existing Revolving Commitments, or extend Revolving
Commitments, as the case may be, provided that no Lender shall
be required to increase its existing Revolving Commitment;
provided,
further, that (i)
each Augmenting Lender shall be subject to the approval of the
Borrower, the Administrative Agent, the Swingline Lender and the
L/C Issuer and the increase in Revolving Commitments of each
Increasing Lender shall be subject to the approval of the Swingline
Lender and the L/C Issuer, and (ii) (A) in the case of an
Increasing Lender, the Borrower and such Increasing Lender execute
an agreement substantially in the form of Exhibit I, and (B) in the case
of an Augmenting Lender, the Borrower and such Augmenting Lender
execute an agreement substantially in the form of Exhibit J hereto. No consent of
any Lender (other than the Lenders participating in such Revolving
Commitment increase) shall be required for any such increase
pursuant to this Section
2.15.
(b) Conditions
to Effectiveness.
Revolving Commitment increases and new Revolving Commitments
created pursuant to this Section 2.15 shall become
effective on the date agreed by the Borrower, the Administrative
Agent and the relevant Increasing Lenders or Augmenting Lenders,
and the Administrative Agent shall notify each Lender thereof.
Notwithstanding the foregoing, no increase in the Revolving
Commitments (or in the Revolving Commitment of any Lender) shall
become effective under this paragraph unless (i) on the proposed
date of the effectiveness of such Revolving Commitment increase,
both immediately before and immediately after giving effect
thereto, (A) no Default or Event of Default exists and (B) the
representations and warranties made or deemed made by the Borrower
and each other Loan Party in the Loan Documents to which any of
them is a party, are true and correct in all material respects with
the same force and effect as if made on and as of such date except
to the extent that such representations and warranties expressly
relate solely to an earlier date (in which case such
representations and warranties shall have been true and correct in
all material respects on and as of such earlier date), and the
Administrative Agent shall have received a certificate executed by
a Responsible Officer of the Borrower certifying the satisfaction
of such conditions, (ii) the Administrative Agent shall have
received documents (including legal opinions) consistent with those
delivered on the Effective Date as to the corporate power and
authority of the Borrower to borrow hereunder and the Guarantors to
guarantee such additional obligations immediately after giving
effect to such Revolving Commitment increase and the Borrower shall have executed such other
modifications and documents and made such other deliveries as are
necessary to evidence and effectuate such new or increased
Revolving Commitments as are reasonably requested by the
Administrative Agent, including, if requested by the
Administrative Agent, a pro forma Compliance Certificate evidencing
compliance with the covenants set forth in Sections 10.1 through
10.4 after giving
effect to the increase, (iii) the Borrower shall have entered into
supplements to or modifications of
this Agreement to reflect the increase in the Revolving Commitments
and shall have entered into modifications of the Mortgages and
other Loan Documents to reflect the increase in the Revolving
Commitments, if requested by the Administrative Agent, and the
Borrower shall have paid any and all Other Taxes imposed in
connection with the recording of the Mortgages and modifications of
the Mortgages or increase in the Revolving Commitments and the
Administrative Agent shall have received evidence satisfactory to
it that all Liens in favor of Lender are and remain first priority
Liens, and (iv) the Borrower shall have paid any fees
associated with such increase, as mutually agreed by the Borrower
and the applicable Lenders.
52
(c) Funding
and Reallocations. On
the effective date of any increase in the Revolving Commitments,
(i) each relevant Increasing Lender and Augmenting Lender shall
make available to the Administrative Agent such amounts in
immediately available funds as the Administrative Agent shall
determine, for the benefit of the other Lenders, as being required in order to cause, after giving
effect to such Revolving Commitment increase and the use of such
amounts to make payments to such other Lenders, each Lender’s
portion of the outstanding Revolving Loans of all the Lenders to
equal its Commitment Percentage of such outstanding Revolving
Loans, and (ii) if necessary to keep the outstanding Revolving
Loans ratable with any revised Commitment Percentages arising from
any nonratable increase in the Commitments under this Section, the
Borrower shall be deemed to have repaid and reborrowed any
outstanding Revolving Loans as of the date of any increase in the
Revolving Commitments (with such reborrowing to consist of the
Types of Revolving Loans, with related Interest Periods if
applicable, specified in a notice delivered by the Borrower, in
accordance with the requirements of Section 2.1(b) in order to
maintain such ratability). The deemed payments made pursuant to
clause (ii) of the
immediately preceding sentence shall be accompanied by payment of
all accrued interest on the amount prepaid and, in respect of each
LIBOR Loan, shall be subject to indemnification by the Borrower
pursuant to the provisions of Section 4.4 if the deemed
payment occurs other than on the last day of the related
Interest Periods.
(d) Documentation.
Increases in the Revolving Commitments may be made hereunder
pursuant to an amendment (an “Increase Amendment”) of
this Agreement and, as appropriate, the other Loan Documents,
executed by the Borrower, each Increasing Lender participating in
such increase, if any, each Augmenting Lender participating in such
increase, if any, and the Administrative Agent. Each Increase
Amendment may, without the consent of any other Lenders, effect
such amendments to this Agreement and the other Loan Documents as
may be necessary or appropriate, in the reasonable opinion of the
Administrative Agent, to effect the provisions of this Section 2.15. Nothing contained
in this Section
2.15 shall constitute, or otherwise be deemed to be, a
commitment on the part of any Lender to increase its Revolving
Commitment hereunder at any time.
(a) Generally.
The Borrower hereby authorizes the Administrative Agent to disburse
the proceeds of any Loan made by the Lenders or any of their
Affiliates pursuant to the Loan Documents as requested by an
authorized representative of the Borrower to any of the accounts
designated by the Borrower. The Borrower agrees to be bound by any
transfer request: (i) authorized or transmitted by the Borrower;
or, (ii) made in the Borrower’s name and accepted by the
Administrative Agent in good faith and in compliance with these
transfer instructions, even if not properly authorized by the
Borrower. The Borrower further agrees and acknowledges that the
Administrative Agent may rely solely on any bank routing number or
identifying bank account number or name provided by the Borrower to
effect a wire of funds transfer. The Administrative Agent is not
obligated or required in any way to take any actions to detect
errors in information provided by the Borrower. If the
Administrative Agent takes any actions in an attempt to detect
errors in the transmission or content of transfer requests or takes
any actions in an attempt to detect unauthorized funds transfer
requests, the Borrower agrees that no matter how many times the
Administrative Agent takes these actions the Administrative Agent
will not in any situation be liable for failing to take or
correctly perform these actions in the future and such actions
shall not become any part of the transfer disbursement procedures
authorized under this provision, the Loan Documents, or any
agreement between the Administrative Agent and the Borrower. The
Borrower agrees to notify the Administrative Agent of any errors in
the transfer of any funds or of any unauthorized or improperly
authorized transfer requests within fourteen (14) days after the
Administrative Agent’s confirmation to the Borrower of such
transfer.
53
(b) Funds
Transfer. The
Administrative Agent will, in its sole discretion, determine the
funds transfer system and the means by which each transfer will be
made. The Administrative Agent may delay or refuse to accept a
funds transfer request if the transfer would: (i) violate the terms
of this authorization; (ii) require the use of a bank unacceptable
to the Administrative Agent or any Lender or prohibited by any
Governmental Authority; (iii) cause the Administrative Agent or any
Lender, in their reasonable judgment, to violate any regulatory
risk control program or guideline promulgated by the Board of
Governors of the Federal Reserve System or any other similar
program or guideline; or (iv) otherwise cause the Administrative
Agent or any Lender to violate any Applicable Law.
(c) Limitation
of Liability. Neither
the Administrative Agent nor any Lender shall be liable to the
Borrower or any other parties for (i) errors, acts or failures to
act of others, including other entities, banks, communications
carriers or clearinghouses, through which the Borrower’s
transfers may be made or information received or transmitted, and
no such entity shall be deemed an agent of the Administrative Agent
or any Lender, (ii) any loss, liability or delay caused by fires,
earthquakes, wars, civil disturbances, power surges or failures,
acts of government, labor disputes, failures in communications
networks, legal constraints or other events beyond Administrative
Agent’s or any Lender’s control, or (iii) any special,
consequential, indirect or punitive damages, whether or not (x) any
claim for these damages is based on tort or contract or (y) the
Administrative Agent, any Lender or the Borrower knew or should
have known the likelihood of these damages in any situation;
provided, however, that, the Administrative Agent and the Lenders
shall be liable to the extent any of the above were the result of
the Administrative Agent’s or Lenders’ gross negligence
or willful misconduct as determined by a court of competent
jurisdiction in a final, non-appealable judgment. Neither the
Administrative Agent nor any Lender makes any representations or
warranties other than those expressly made in this
Agreement.
ARTICLE III.
(a) Payments
by the Borrower.
Except to the extent otherwise provided herein, all payments of
principal, interest and other amounts to be made by the Borrower
under this Agreement or any other Loan Document shall be made in
Dollars, in immediately available funds, without deduction, set-off
or counterclaim, to the Administrative Agent at its Principal
Office, not later than 2:00 p.m. on the date on which such payment
shall become due (each such payment made after such time on such
due date to be deemed to have been made on the next succeeding
Business Day). Subject to Section 11.4, the Borrower
shall, at the time of making each payment under this Agreement or
any other Loan Document, specify to the Administrative Agent the
amounts payable by the Borrower hereunder to which such payment is
to be applied. Each payment received by the Administrative Agent
for the account of a Lender under this Agreement or any other Loan
Document shall be paid to such Lender by wire transfer of
immediately available funds in accordance with the wiring
instructions provided by such Lender to the Administrative Agent
from time to time, for the account of such Lender at the applicable
Lending Office of such Lender. If the Administrative Agent fails to
pay such amounts to such Lender, within one Business Day of receipt
of such amounts, the Administrative Agent shall pay interest on
such amount at a rate per annum equal to the Federal Funds
Effective Rate from time to time in effect. If the due date of any
payment under this Agreement or any other Loan Document would
otherwise fall on a day which is not a Business Day such date shall
be extended to the next succeeding Business Day and interest shall
be payable for the period of such extension.
54
(b) Presumptions
Regarding Payments by Borrower. Unless the Administrative Agent shall
have received notice from the Borrower prior to the date on which
any payment is due to the Administrative Agent for the account of
the Lenders hereunder that the Borrower will not make such payment,
the Administrative Agent may assume that the Borrower has made such payment on
such date in accordance herewith and may (but shall not be
obligated to), in reliance upon such assumption, distribute to the
Lenders the amount due. In such event, if the Borrower has not in
fact made such payment, then each of the Lenders severally agrees
to repay to the Administrative Agent on demand that amount so
distributed to such Lender, with interest thereon, for each day
from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Effective Rate and a rate determined
by the Administrative Agent in accordance with banking industry
rules on interbank compensation.
Except
to the extent otherwise provided herein: (a) each borrowing from
the Lenders under Sections
2.1(a), 2.2(e) and 2.3(e) shall be made from the
Lenders, each payment of the Fees under Section 3.6(a) and the first
sentence of Section
3.6(b) shall be made for the account of the applicable
Lenders, and each termination or reduction of the amount of the
Revolving Commitments under Section 2.11 shall be applied
to the respective Revolving Commitments of the Lenders, in each
case pro rata according to the amounts of their respective
Revolving Commitments; (b) each payment or prepayment of principal
of Revolving Loans by the Borrower shall be made for the account of
the Lenders pro rata in accordance with the respective unpaid
principal amounts of the Revolving Loans held by them; (c) each
payment of interest on Revolving Loans by the 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) the Conversion and Continuation of
Revolving Loans of a particular Type (other than Conversions
provided for by Section
4.6) shall be made pro rata among the Lenders according to
the amounts of their respective Revolving Loans, and the then
current Interest Period for each Lender’s portion of each
such Loan of such Type shall be coterminous; (e) the Lenders’
participation in, and payment obligations in respect of, Letters of
Credit under Section
2.2, shall be pro rata in accordance with their respective
Revolving Commitments; and (f) the Lenders’ participation in,
and payment obligations in respect of, Swingline Loans under
Section 2.3, shall
be pro rata in accordance with their respective Revolving
Commitments. All payments of principal, interest, fees and other
amounts in respect of the Swingline Loans shall be for the account
of the Swingline Lender only (except to the extent any Lender shall
have acquired and funded a participating interest in any such
Swingline Loan pursuant to Section 2.3(e), in which case
such payments shall be pro rata in accordance with such
participating interests).
55
If a
Lender shall obtain payment of any principal of, or interest on,
any Loan made by it to the Borrower under this Agreement, or shall
obtain payment on any other Obligation owing by any Loan Party
through the exercise of any right of set-off, banker’s lien
or counterclaim or similar right or otherwise or through voluntary
prepayments directly to a Lender or other payments made by any Loan
Party to a Lender (other than any payment in respect of Specified
Derivatives Obligations) not in accordance with the terms of this
Agreement and such payment should be distributed to the Lenders pro
rata in accordance with Section 3.2 or Section 11.4, as applicable,
such Lender shall promptly purchase from the other Lenders
participations in (or, if and to the extent specified by such
Lender, direct interests in) the Loans made by the other Lenders or
other Obligations owed to such other Lenders in such
amounts, and make such other adjustments from time to time as shall
be equitable, to the end that all the Lenders shall, subject to
Section 3.11 if
applicable, share the benefit of such payment (net of any
reasonable expenses which may be incurred by such Lender in
obtaining or preserving such benefit) pro rata in accordance with
Section 3.2 or
Section 11.4, as
applicable. To such end, all the Lenders shall make appropriate
adjustments among themselves (by the resale of participations sold
or otherwise) if such payment is rescinded or must otherwise be
restored. The Borrower agrees that any Lender so purchasing a
participation (or direct interest) in the Loans or other
Obligations owed to such other Lenders may exercise all rights of
set-off, banker’s lien, counterclaim or similar rights with
respect to such participation as fully as if such Lender were a
direct holder of Loans in the amount of such participation. Nothing
contained herein shall require any Lender to exercise any such
right or shall affect the right of any Lender to exercise, and
retain the benefits of exercising, any such right with respect to
any other indebtedness or obligation of the Borrower.
No
Lender shall be responsible for the failure of any other Lender to
make a Loan or to perform any other obligation to be made or
performed by such other Lender hereunder, and the failure of any
Lender to make a Loan or to perform any other obligation to be made
or performed by it hereunder shall not relieve the obligation of
any other Lender to make any Loan or to perform any other
obligation to be made or performed by such other
Lender.
(a) Borrowings
and Conversions.
Except as set forth in Sections 2.2(e), 2.3(d), and 2.3(e), each borrowing of
Base Rate Loans shall be in an aggregate minimum amount of $500,000
and integral multiples of $50,000 in excess thereof. Each
borrowing, Conversion and Continuation of LIBOR Loans shall be in
an aggregate minimum amount of $500,000 and integral multiples of
$50,000 in excess of that amount.
(b) Prepayments.
Each voluntary prepayment of Revolving Loans shall be in an
aggregate minimum amount of $500,000 and integral multiples of
$50,000 in excess thereof (or, if less, the aggregate principal
amount of Revolving Loans then outstanding).
(c) Reductions
of Revolving Commitments. Unless otherwise approved by the
Administrative Agent, each reduction of the Revolving Commitments
under Section 2.11
shall be in an aggregate minimum amount of $5,000,000 and integral
multiples of $1,000,000 in excess thereof.
56
(d) Letters
of Credit. The initial Stated Amount of each Letter of
Credit shall be at least $100,000 (or such lesser amount as may be
acceptable to the Borrower and the L/C Issuer).
(a) Unused
Fees. The Borrower
agrees to pay the Administrative Agent for the account of the
Lenders having a Revolving Commitment (other than a Defaulting
Lender for such period of time as such Lender is a Defaulting
Lender) in accordance with their respective Commitment Percentages
a facility unused fee calculated at the rate per annum as set forth
below on the actual daily amount by which the aggregate Revolving
Commitments of all Lenders exceeds the aggregate outstanding
principal amount of all Revolving Loans (excluding Swingline Loans,
for the avoidance of doubt) during each calendar quarter or portion
thereof commencing on the date hereof and ending on the Maturity
Date (the “Unused Fee”). The facility unused fee shall
be calculated for each day based on the ratio (expressed as a
percentage) of (a) the actual daily amount of the aggregate
outstanding principal amount of the Revolving Loans during such
quarter to (b) the aggregate Revolving Commitments, and if such
ratio is less than or equal to fifty percent (50%), the facility
unused fee shall be payable at the rate of 0.30% per annum, and if
such ratio is greater than fifty percent (50%), the facility unused
fee shall be payable at the rate of 0.25% per annum. The facility
unused fee shall accrue from and after the Effective Date and shall
be payable quarterly in arrears on the first (1st) day of each
calendar quarter for the immediately preceding calendar quarter or
portion thereof (commencing on the first such date following the
Effective Date), and on any earlier date on which the Revolving
Commitments shall be reduced or shall terminate as provided in
Section 2.11, with
a final payment on the Maturity Date.
(b) Letter
of Credit Fees. The
Borrower agrees to pay to the Administrative Agent for the account
of the Lenders a letter of credit fee at a rate per annum equal to
the Applicable Margin in respect of Revolving Loans that are LIBOR
Loans (or while an Event of Default exists and upon the request of
the Requisite Lenders (and automatically in the case of any Event
of Default under Section 11.1(a), (f) or (g)), at a per annum rate
equal to the Applicable Margin in respect of Revolving Loans that
are LIBOR Loans plus 2.0%) times the daily actual Stated Amount of
each Letter of Credit for the period from and including the date of
issuance of such Letter of Credit (x) through and including the
date such Letter of Credit expires or is terminated or (y) to but
excluding the date such Letter of Credit is drawn in full and is
not subject to reinstatement, as the case may be. The fees provided
for in the immediately preceding sentence shall be nonrefundable
and payable in arrears on (i) the first Business Day of each
calendar quarter, (ii) the Maturity Date, (iii) the date the
Revolving Commitments are terminated or reduced to zero and (iv)
thereafter from time to time on demand of the L/C Issuer. The
Borrower shall pay directly to the L/C Issuer, for its own account
and not the account of any Lender, (i) an issuance fee in an amount
equal to 0.125% on the face amount of each Letter of Credit,
payable upon issuance of such Letter of Credit and (ii) from time
to time on demand all charges, costs and expenses in the amounts
customarily charged by the L/C Issuer from time to time in like
circumstances with respect to the issuance of each Letter of
Credit, drawings, amendments and other transactions relating
thereto.
57
(c) Extension
Fee. If the Borrower
exercises its right to extend the Maturity Date for Revolving Loans
and Revolving Commitments in accordance with Section 2.13, the Borrower
agrees to pay to the Administrative Agent for the account of each
Lender (other than a Lender that at such time is a Defaulting
Lender), a fee equal to 0.20% of the amount of such Lender’s
Revolving Commitment (whether or not utilized) as of the date of
such extension. Such fee shall be due and payable in full no later
than the effective date of such extension pursuant to Section 2.13, as a condition
precedent to such extension.
(d) Fee
Letter. The Borrower
agrees to pay the fees set forth in the Fee Letter, in the amounts,
to the Persons and for the account of the Persons identified
therein.
Unless
otherwise expressly set forth herein, any accrued interest on any
Loan, any Fees or any other Obligations due hereunder shall be
computed on the basis of a year of 360 days and the actual number
of days elapsed; provided, however, interest on Base Rate Loans
shall be computed on the basis of a year of 365 or 366 days, as
applicable, and the actual number of days elapsed.
In no
event shall the amount of interest due or payable on the Loans or
other Obligations exceed the maximum rate of interest allowed by
Applicable Law and, if any such payment is paid by any Loan Party
or received by any Lender, then such excess sum shall be credited
as a payment of principal, unless the Borrower notifies the
respective Lender in writing that the Borrower elects to have such
excess sum returned to it forthwith. It is the express intent of
the parties hereto that the Borrower not pay and the Lenders not
receive, directly or indirectly, in any manner whatsoever, interest
in excess of that which may be lawfully paid by the Borrower under
Applicable Law.
The
parties hereto hereby agree and stipulate that the only charge
imposed upon the Borrower for the use of money in connection with
this Agreement is and shall be the interest specifically described
in Sections
2.4(a)(i), (ii) and (iii) and Section 2.3(c). Notwithstanding
the foregoing, the parties hereto further agree and stipulate that
all agency fees, syndication fees, unused fees, closing fees,
letter of credit fees, underwriting fees, default charges, funding
or “breakage” charges, increased cost charges,
attorneys’ fees and reimbursement for costs and expenses paid
by the Administrative Agent or any Lender to third parties or for
damages incurred by the Administrative Agent or any Lender, in each
case in connection with the transactions contemplated by this
Agreement and the other Loan Documents, are charges made to
compensate the Administrative Agent or any such Lender for
underwriting or administrative services and costs or losses
performed or incurred, and to be performed or incurred, by the
Administrative Agent and the Lenders in connection with this
Agreement and shall under no circumstances be deemed to be charges
for the use of money. All charges other than charges for the use of
money shall be fully earned and nonrefundable when
due.
58
The
Administrative Agent will endeavor to account to the Borrower
monthly with a statement of Loans, accrued interest and Fees,
charges and payments made pursuant to this Agreement and the other
Loan Documents, and such account rendered by the Administrative
Agent shall be deemed conclusive upon the Borrower absent manifest
error, provided
that the failure of the Administrative Agent to deliver such a
statement of accounts shall not relieve or discharge the Borrower
from any of its obligations hereunder.
Notwithstanding
anything to the contrary contained in this Agreement, if any Lender
becomes a Defaulting Lender, then, until such time as such Lender
is no longer a Defaulting Lender, to the extent permitted by
Applicable Law:
(a) Waivers
and Amendments. Such
Defaulting Lender’s right to approve or disapprove any
amendment, waiver or consent with respect to this Agreement shall
be restricted as set forth in the definition of Requisite
Lenders.
(b) Defaulting
Lender Waterfall. Any
payment of principal, interest, Fees or other amounts received by
the Administrative Agent for the account of such Defaulting Lender
(whether voluntary or mandatory, at maturity, pursuant to
Article XI or
otherwise) or received by the Administrative Agent from a
Defaulting Lender pursuant to Section 13.3 shall be applied
at such time or times as may be determined by the Administrative
Agent as follows: first, to the payment of any
amounts owing by such Defaulting Lender to the Administrative Agent
hereunder; second,
to the payment on a pro rata basis of any amounts owing by such
Defaulting Lender to the L/C Issuer in respect of Letters of Credit
hereunder or the Swingline Lender hereunder; third, to Cash Collateralize
the L/C Issuer’s Fronting Exposure with respect to such
Defaulting Lender in accordance with subsection (e) below;
fourth, as the
Borrower may request (so long as no Default or Event of Default
exists), to the funding of any Loan in respect of which such
Defaulting Lender has failed to fund its portion thereof as
required by this Agreement, as determined by the Administrative
Agent; fifth, if so
determined by the Administrative Agent and the Borrower, to be held
in a deposit account and released pro rata in order to (x) satisfy
such Defaulting Lender’s potential future funding obligations
with respect to Loans under this Agreement and (y) Cash
Collateralize the L/C Issuer’s future Fronting Exposure with
respect to such Defaulting Lender with respect to future Letters of
Credit issued under this Agreement, in accordance with subsection
(e) below; sixth,
to the payment of any amounts owing to the Lenders, the
Administrative Agent, the L/C Issuer or the Swingline Lender as a
result of any judgment of a court of competent jurisdiction
obtained by any Lender, the Administrative Agent, the L/C Issuer or
the Swingline Lender against such Defaulting Lender as a result of
such Defaulting Lender’s breach of its obligations under this
Agreement; seventh,
so long as no Default or Event of Default exists, to the payment of
any amounts owing to the Borrower as a result of any judgment of a
court of competent jurisdiction obtained by the Borrower against
such Defaulting Lender as a result of such Defaulting
Lender’s breach of its obligations under this Agreement; and
eighth, to such
Defaulting Lender or as otherwise directed by a court of competent
jurisdiction; provided that if (x) such
payment is a payment of the principal amount of any Loans or
amounts owing by such Defaulting Lender under Section 2.2(j) in
respect of Letters of Credit (such amounts “L/C Disbursements”), in
respect of which such Defaulting Lender has not fully funded its
appropriate share, and (y) such Loans were made or the related
Letters of Credit were issued at a time when the conditions set
forth in Article VI
were satisfied or waived, such payment shall be applied solely to
pay the Loans of, and L/C Disbursements owed to, all Non-Defaulting
Lenders on a pro rata basis prior to being applied to the payment of
any Loans of, and L/C Disbursements owed to, such Defaulting Lender
until such time as all Loans and funded and unfunded participations
in Letter of Credit Liabilities and Swingline Loans are held by the
Lenders pro rata in accordance with their respective Commitment
Percentages (without giving effect to subsection (d) of this
Section 3.11). Any
payments, prepayments or other amounts paid or payable to a
Defaulting Lender that are applied (or held) to pay amounts owed by
a Defaulting Lender or to post Cash Collateral pursuant to this
subsection shall be deemed paid to and redirected by such
Defaulting Lender, and each Lender irrevocably consents
hereto.
59
(c) Certain
Fees. (i) No Defaulting Lender shall be
entitled to receive any Fee payable under Section 3.6(a) or (c) for any period during which
that Lender is a Defaulting Lender (and the Borrower shall not be
required to pay any such fee that otherwise would have been
required to be paid to such Defaulting Lender).
(ii) Each
Defaulting Lender shall be entitled to receive the Fee payable
under Section
3.6(b) for any period during which that Lender is a
Defaulting Lender only to the extent allocable to its Commitment
Percentage of the stated amount of Letters of Credit for which it
has provided Cash Collateral pursuant to subsection (e) of this
Section
3.11.
(iii) With
respect to any Fee not required to be paid to any Defaulting Lender
pursuant to the immediately preceding clauses (i) or (ii), the Borrower shall (x)
pay to each Lender that is a Non-Defaulting Lender that portion of
any such Fee otherwise payable to such Defaulting Lender with
respect to such Defaulting Lender’s participation in Letter
of Credit Liabilities or Swingline Loans that has been reallocated
to such Non-Defaulting Lender pursuant to the immediately following
subsection (d), (y)
pay to the Administrative Agent for the account of the L/C Issuer
and Swingline Lender, as applicable, the amount of any such Fee
otherwise payable to such Defaulting Lender to the extent allocable
to the L/C Issuer’s or Swingline Lender’s Fronting
Exposure to such Defaulting Lender, and (z) not be required to pay
the remaining amount of any such Fee.
(d) Reallocation
of Participations to Reduce Fronting Exposure. All or any part of such Defaulting
Lender’s participation in Letter of Credit Liabilities and
Swingline Loans shall be reallocated among the Lenders that are
Non-Defaulting Lenders in accordance with their respective
Commitment Percentages (determined without regard to such
Defaulting Lender’s Commitment) but only to the extent that
(x) the conditions set forth in Article VI are satisfied at the
time of such reallocation (and, unless the Borrower shall have
otherwise notified the Administrative Agent at such time, the
Borrower shall be deemed to have represented and warranted that
such conditions are satisfied at such time), and (y) such
reallocation does not cause the aggregate Revolving Credit Exposure
of any Lender that is a Non-Defaulting Lender to exceed such
Non-Defaulting Lender’s Revolving Commitment. No reallocation
hereunder shall constitute a waiver or release of any claim of any
party hereunder against a Defaulting Lender arising from that
Lender having become a Defaulting Lender, including any claim of a
Non-Defaulting Lender as a result of such Non-Defaulting
Lender’s increased exposure following such
reallocation.
60
(e) Cash
Collateral, Repayment of Swingline Loans.
(i) If
the reallocation described in the immediately preceding
subsection (d)
above cannot, or can only partially, be effected, the Borrower
shall, without prejudice to any right or remedy available to them
hereunder or under law, (x) first, prepay Swingline Loans in an
amount equal to the Swingline Lender’s Fronting Exposure and
(y) second, Cash Collateralize the L/C Issuer’s Fronting
Exposure in accordance with the procedures set forth in this
subsection.
(ii) At
any time that there shall exist a Defaulting Lender, within 1
Business Day following the written request of the Administrative
Agent or the L/C Issuer (with a copy to the Administrative Agent),
the Borrower shall Cash Collateralize the L/C Issuer’s
Fronting Exposure with respect to such Defaulting Lender
(determined after giving effect to the immediately preceding
subsection (d) and
any Cash Collateral provided by such Defaulting Lender) in an
amount not less than 105% of the aggregate Fronting Exposure of the
L/C Issuer with respect to Letters of Credit issued and outstanding
at such time.
(iii) The
Borrower, and to the extent provided by any Defaulting Lender, such
Defaulting Lender, hereby grant to the Administrative Agent, for
its own benefit, and agree to maintain, a first priority security
interest in all such Cash Collateral as security for the Defaulting
Lenders’ obligations to fund participations in respect of
Letter of Credit Liabilities, to be applied pursuant to the
immediately following clause (iv). If at any time the
Administrative Agent determines that Cash Collateral is subject to
any right or claim of any Person other than the Administrative
Agent as herein provided, or that the total amount of such Cash
Collateral is less than 105% of such aggregate Fronting Exposure of
the L/C Issuer with respect to Letters of Credit issued and
outstanding at such time, the Borrowers will, promptly upon demand
by the Administrative Agent, pay or provide to the Administrative
Agent additional Cash Collateral in an amount sufficient to
eliminate such deficiency (after giving effect to any Cash
Collateral provided by the applicable Defaulting
Lender).
(iv) Notwithstanding
anything to the contrary contained in this Agreement, Cash
Collateral provided under this Section in respect of Letters of
Credit shall be applied to the satisfaction of the applicable
Defaulting Lender’s obligation to fund participations in
respect of Letter of Credit Liabilities (including, as to Cash
Collateral provided by a Defaulting Lender, any interest accrued on
such obligation) for which the Cash Collateral was so provided,
prior to any other application of such property as may otherwise be
provided for herein.
(v) Cash
Collateral (or the appropriate portion thereof) provided to reduce
the L/C Issuer’s Fronting Exposure shall no longer be
required to be held as Cash Collateral pursuant to this subsection
following (x) the elimination of the applicable Fronting Exposure
(including by the termination of Defaulting Lender status of the
applicable Lender), or (y) the determination by the Administrative
Agent that there exists excess Cash Collateral; provided, that, subject to the
other provisions of this Section 3.11, the Person
providing Cash Collateral, the L/C Issuer and the Administrative
Agent may agree that Cash Collateral shall be held to support
future anticipated Fronting Exposure or other obligations and
provided further that to the extent that such Cash Collateral was
provided by the Borrower, such Cash Collateral shall remain subject
to the security interest granted pursuant hereto and the Collateral
Documents.
61
(f) Defaulting
Lender Cure. If the Borrower and the Administrative Agent,
the L/C Issuer and the Swingline Lender agree in writing that a
Lender is no longer a Defaulting Lender, the Administrative Agent
will so notify the parties hereto, whereupon as of the effective
date specified in such notice and subject to any conditions set
forth therein (which may include arrangements with respect to Cash
Collateral), that Lender will, to the extent applicable, purchase
at par that portion of outstanding Loans of the other Lenders or
take such other actions as the Administrative Agent may determine
to be necessary to cause the Loans and funded and unfunded
participations in Letters of Credit and Swingline Loans to be held
pro rata by the Lenders in accordance with their respective
Commitment Percentages (determined without giving effect to the
immediately preceding subsection (d)), whereupon such
Lender will cease to be a Defaulting Lender; provided that no adjustments
will be made retroactively with respect to Fees accrued or payments
made by or on behalf of the Borrower while that Lender was a
Defaulting Lender; and provided, further, that except to the
extent otherwise expressly agreed by the affected parties, no
change hereunder from Defaulting Lender to Lender will constitute a
waiver or release of any claim of any party hereunder arising from
that Lender’s having been a Defaulting Lender.
(g) New
Swingline Loans/Letters of Credit. So long as any Lender is
a Defaulting Lender, (i) the Swingline Lender shall not be required
to fund any Swingline Loans unless it is satisfied that it will
have no Fronting Exposure after giving effect to such Swingline
Loan and (ii) the L/C Issuer shall not be required to issue,
extend, renew or increase any Letter of Credit unless it is
satisfied that it will have no Fronting Exposure after giving
effect thereto.
(h) Purchase
of Defaulting Lender’s Commitment and
Loans. During any
period that a Lender is a Defaulting Lender, the Borrower may, by
giving written notice thereof to the Administrative Agent, the L/C
Issuer, such Defaulting Lender and the other Lenders, demand that
such Defaulting Lender assign its Commitment and Loans to an
Eligible Assignee subject to and in accordance with the provisions
of Section 13.5(b).
No party hereto shall have any obligation whatsoever to initiate
any such replacement or to assist in finding an Eligible Assignee.
In addition, any Lender who is not a Defaulting Lender may, but
shall not be obligated, in its sole discretion, to acquire the face
amount of all or a portion of such Defaulting Lender’s
Commitment and Loans via an assignment subject to and in accordance
with the provisions of Section 13.5(b). In connection
with any such assignment, such Defaulting Lender shall promptly
execute all documents reasonably requested to effect such
assignment, including an appropriate Assignment and Acceptance
Agreement and, notwithstanding Section 13.5(b), shall pay to
the Administrative Agent an assignment fee in the amount of $3,500.
The exercise by the Borrower of its rights under this Section shall
be at the Borrower’s sole cost and expense and at no cost or
expense to the Administrative Agent or any of the
Lenders.
(a) Taxes
Generally. All
payments by or on account of any obligation of the Borrower under
any Loan Document shall be made free and clear of and 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:
62
(i) shall
timely pay the full amount deducted or withheld to the relevant
Governmental Authority in accordance with Applicable
Law;
(ii) shall
promptly forward to the Administrative Agent an official receipt or
other documentation reasonably satisfactory to the Administrative
Agent evidencing such payment to such Governmental Authority;
and
(iii) if
such Tax is an Indemnified Tax, then the sum payable by the
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) the applicable recipient receives an amount equal to the
sum it would have received had no such deduction or withholding
been made.
(b) Tax
Indemnification. If
the Borrower fails to pay any Indemnified Taxes when due to the
appropriate Governmental Authority or fails to remit to the
Administrative Agent, for its account or the account of the
respective Lender, the required receipts or other required
documentary evidence, the Borrower shall indemnify the
Administrative Agent and the Lenders for the full amount of such
Indemnified Tax, including any incremental Taxes, interest or
penalties that may become payable by the Administrative Agent or
any Lender as a result of any such failure. For purposes of this
Section, a distribution hereunder by the Administrative Agent or
any Lender to or for the account of any Lender shall be deemed a
payment by the Borrower. The Administrative Agent or such Lender
agrees to furnish to the Borrower (and in the case of a Lender, to
the Administrative Agent) a certificate setting forth in reasonable
detail the basis and amount of each request by the Administrative
Agent or such Lender for compensation under this Section. Absent
manifest error, determinations by the Administrative Agent or any
Lender of compensation due under this Section shall be conclusive,
provided that such determinations are made on a reasonable basis
and in good faith.
(c) Tax
Forms. Any Lender
that is entitled to an exemption from or reduction of withholding
Tax with respect to payments made under any Loan Document shall
deliver to the Borrower and the Administrative Agent, at the time
or times reasonably requested by the Borrower or the Administrative
Agent, such properly completed and executed documentation
reasonably requested by the Borrower or the Administrative Agent as
will permit such payments to be made without withholding or at a
reduced rate of withholding. In addition, any Lender, if reasonably
requested by the Borrower or the Administrative Agent, shall
deliver such other documentation prescribed by Applicable Law or
reasonably requested by the Borrower or the Administrative Agent as
will enable the Borrower or the Administrative Agent to determine
whether or not such Lender is subject to backup withholding or
information reporting requirements. Notwithstanding anything to the
contrary in the preceding two sentences, the completion, execution
and submission of such documentation (other than such documentation
set forth in paragraphs (c)(i), (ii) and (v) of this Section) shall
not be required if in the Lender’s reasonable judgment such
completion, execution or submission would subject such Lender to
any material unreimbursed cost or expense or would materially
prejudice the legal or commercial position of such Lender. Without
limiting the generality of the foregoing:
63
(i) Any
Lender that is a “United States Person” as defined in
Section 7701(a)(30) of the Internal Revenue Code shall deliver to
the Borrower and the Administrative Agent executed copies of
Internal Revenue Service Form W-9 certifying that such Lender is
exempt from U.S. federal backup withholding tax.
(ii) Prior
to the date that any Foreign Lender becomes a party hereto (and
from time to time thereafter upon the reasonable request of the
Borrower or the Administrative Agent), such Foreign Lender shall,
to the extent it is legally entitled to do so, deliver to the
Borrower and the Administrative Agent (in such number of copies as
shall be requested by the recipient), whichever of the following is
applicable:
(A) in
the case of a Foreign Lender claiming the benefits of an income tax
treaty to which the United States is a party (x) with respect to
payments of interest under any Loan Document, an executed copy of
IRS Form W-8BEN or W-8BEN-E, as applicable, establishing an
exemption from, or reduction of, U.S. federal withholding Tax
pursuant to the “interest” article of such tax treaty
and (y) with respect to any other applicable payments under any
Loan Document, IRS Form W-8BEN or W-8BEN-E, as applicable,
establishing an exemption from, or reduction of, U.S. Federal
withholding Tax pursuant to the “business profits” or
“other income” article of such tax treaty;
(B) an
executed copy of IRS Form W-8ECI;
(C) in
the case of a Foreign Lender claiming the benefits of the exemption
for portfolio interest under Section 881(c) of the Code, (x) a
certificate substantially in the form of Exhibit P-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 such 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) an executed copy of IRS Form
W-8BEN or W-8BEN-E, as applicable; or
64
(D) to
the extent a Foreign Lender is not the Beneficial Owner, an
executed copy of Form W-8IMY, accompanied by IRS Form W-8ECI, IRS
Form W-8BEN, W-8BEN-E, a U.S. Tax Compliance Certificate
substantially in the form of Exhibit P-2 or Exhibit P-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 P-4 on behalf of each
such direct and indirect partner;
(iii) Each
such Foreign Lender shall, to the extent it is legally entitled to
do so, (x) deliver to the Borrower and the Administrative Agent (in
such number of copies as shall be requested by the recipient) on or
prior to the date on which such Foreign Lender becomes a Lender
under this Agreement (and from time to time thereafter upon the
reasonable request of the Borrower or the Administrative Agent),
executed originals or (if copies are equally valid for the purpose)
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
Borrower or the Administrative Agent to determine the withholding
or deduction required to be made, (y) deliver further copies of
such forms or other appropriate certifications on or before the
date that any such forms expire or become obsolete and after the
occurrence of any event requiring a change in the most recent form
delivered to the Borrower or the Administrative Agent, and (z)
obtain such extensions of the time for filing, and renew such forms
and certifications thereof, as may be reasonably requested by the
Borrower or the Administrative Agent.
(iv) If
any such Lender, to the extent it may lawfully do so, fails to
deliver the above forms or other documentation, then the
Administrative Agent may withhold from any payments to such Lender
under any of the Loan Documents such amounts as are required by the
Internal Revenue Code. If any Governmental Authority asserts that
the Administrative Agent did not properly withhold or backup
withhold, as the case may be, any Tax or other amount from payments
made to or for the account of any Lender, such Lender shall
indemnify the Administrative Agent therefor, including all
penalties and interest, any Taxes imposed by any jurisdiction on
the amounts payable to the Administrative Agent under this Section,
and costs and expenses (including all reasonable fees and
disbursements of any law firm or other external counsel and the
allocated cost of internal legal services and all disbursements of
internal counsel) of the Administrative Agent.
65
(v) If
a payment made to a Lender under any Loan Document would be subject
to withholding Tax imposed by FATCA if such Lender were to fail to
comply with the applicable reporting requirements of FATCA
(including those contained in Section 1471(b) or 1472(b) of the
Internal Revenue Code, as applicable), such Lender shall deliver to
the Borrower and the Administrative Agent at the time or times
prescribed by law and at such time or times reasonably requested by
the Borrower or the Administrative Agent such documentation
prescribed by Applicable Law (including as prescribed by Section
1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional
documentation reasonably requested by the Borrower or the
Administrative Agent as may be necessary for the Borrower and the
Administrative Agent to comply with their obligations under FATCA
and to determine that such Lender has complied with such
Lender’s obligations under FATCA or to determine the amount,
if any, to deduct and withhold from such payment. Solely for
purposes of this clause, “FATCA” shall include any
amendments made to FATCA after the date of this
Agreement.
(vi) The
obligation of the Lenders under this Section shall survive the
termination of the Commitments, repayment of all Obligations and
the resignation or replacement of the Administrative
Agent.
(d) Treatment
of Certain Refunds. If any party determines, in its sole
discretion exercised in good faith, that it has received a refund
(or credit in lieu thereof) of any Taxes as to which it has been
indemnified pursuant to this Section (including by the payment
of additional amounts pursuant to this Section), it shall pay to
the indemnifying party an amount equal to such refund (but only to
the extent of indemnity payments made under this Section with
respect to the Taxes giving rise to such refund), net of all
out-of-pocket expenses (including taxes) of such indemnified party
and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund). Such
indemnifying party, upon the request of such indemnified party,
shall repay to such indemnified party the amount paid over pursuant
to this paragraph (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 paragraph, in no event will the indemnified party be required
to pay any amount to an indemnifying party pursuant to this
paragraph the payment of which would place the indemnified
party in a less favorable net after-tax position than the
indemnified party would have been in if the Tax subject to
indemnification and giving rise to such refund had not been
deducted, withheld or otherwise imposed and the indemnification
payments or additional amounts with respect to such Tax had never
been paid. This paragraph 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 reasonably deems
confidential) to the indemnifying party or any other
Person.
(e) USA
Patriot Act Notice; Compliance. In order for the Administrative Agent
to comply with the USA Patriot Act of 2001 (Public Law 107-56),
prior to any Lender or Participant that is organized under the laws
of a jurisdiction outside of the United States of America becoming
a party hereto, the Administrative Agent may request, and such
Lender or Participant shall provide to the Administrative Agent,
its name, address, tax identification number and/or such other
identification information as shall be necessary for the
Administrative Agent to comply with federal law.
66
ARTICLE IV.
(a) Capital
Adequacy. If any
Lender or any Participant determines that compliance with any
Regulatory Change affects or would affect the amount of capital or
liquidity required or expected to be maintained by such Lender or
such Participant, or any corporation Controlling such Lender or
such Participant, as a consequence of, or with reference to, such
Lender’s or such Participant’s or such
corporation’s Commitments or its making or maintaining Loans
or participating in Letters of Credit below the rate which such
Lender or such Participant or such corporation Controlling such
Lender or such Participant could have achieved but for such
Regulatory Change (taking into account the policies of such Lender
or such Participant or such corporation with regard to capital and
liquidity), then the Borrower shall, from time to time, within
thirty (30) calendar days after written demand by such Lender or
such Participant, pay to such Lender or such Participant additional
amounts sufficient to compensate such Lender or such Participant or
such corporation Controlling such Lender or such Participant for
such reduction suffered to the extent that such Lender
or such Participant
determines such increase in capital is allocable to such
Lender’s or such Participant’s obligations
hereunder. Any Participant’s right to receive compensation
pursuant to this subsection (a) is limited by
the terms of Section
13.5(d).
(b) Additional
Costs. In addition
to, and not in limitation of the immediately preceding subsection (a), the Borrower
shall promptly pay to the Administrative Agent for the account of
each affected Lender from time to time such amounts as such Lender
may determine to be necessary to compensate such Lender for any
costs incurred by such Lender that it determines are attributable
to its making, continuing, converting or maintaining of any LIBOR
Loans or its obligation to make any LIBOR Loans hereunder, any
reduction in any amount receivable by such Lender under this
Agreement or any of the other Loan Documents in respect of any of
such Loans or such obligation or the maintenance by such Lender of
capital in respect of its Loans or its Commitments (such new or
increases in costs and reductions in amounts receivable being
herein called “Additional Costs”), to
the extent resulting from any Regulatory Change that: (i) changes
the basis of taxation of any amounts payable to such Lender under
this Agreement or any of the other Loan Documents in respect of any
of such Loans or its Commitments (other than (A) Indemnified Taxes,
(B) Taxes described in clauses (b) through (d) of the definition of
Excluded Taxes, and (C) Connection Income Taxes); or (ii) imposes
or modifies any reserve, special deposit or similar requirements
(other than Regulation D of the Board of Governors of the Federal
Reserve System or other reserve requirement to the extent utilized
in the determination of LIBOR for such Loan) relating to any
extensions of credit or other assets of, or any deposits with or
other liabilities of, such Lender, or any commitment of such Lender
(including, without limitation, the Commitments of such Lender
hereunder); or (iii) has or would have the effect of reducing the
rate of return on capital of such Lender to a level below that
which such Lender could have achieved but for such Regulatory
Change (taking into consideration such Lender’s policies with
respect to capital adequacy), other than, in the case of this
clause (iii), with respect to Taxes that are expressly covered in
Section
3.12.
(c) Lender’s
Suspension of LIBOR Loans. Without limiting the effect of the
provisions of the immediately preceding subsections (a) and
(b), if, by reason
of any Regulatory Change, any Lender either (i) incurs Additional
Costs based on or measured by the excess above a specified level of
the amount of a category of deposits or other liabilities of such
Lender that includes deposits by reference to which the interest
rate on LIBOR Loans is determined as provided in this Agreement or
a category of extensions of credit or other assets of such Lender
that includes LIBOR Loans or (ii) becomes subject to restrictions
on the amount of such a category of liabilities or assets that it
may hold, then, if such Lender so elects by notice to the Borrower
(with a copy to the Administrative Agent), the obligation of such
Lender to make or Continue, or to Convert any other Type of Loans
into, LIBOR Loans hereunder shall be suspended until such
Regulatory Change ceases to be in effect (in which case the
provisions of Section
4.6 shall apply).
67
(d) Additional
Costs in Respect of Letters of Credit. Without limiting the obligations of
the Borrower under the preceding subsections of this Section (but
without duplication), if as a result of any Regulatory Change or
any risk-based capital guideline or other requirement heretofore or
hereafter issued by any Governmental Authority there shall be
imposed, modified or deemed applicable any tax, reserve, special
deposit, capital adequacy or similar requirement against or with
respect to or measured by reference to Letters of Credit and the
result shall be to increase the cost to the L/C Issuer of issuing
(or any Lender of purchasing participations in) or maintaining its
obligation hereunder to issue (or purchase participations in) any
Letter of Credit or reduce any amount receivable by the L/C Issuer
or any Lender hereunder in respect of any Letter of Credit, then,
upon demand by the L/C Issuer or such Lender, the Borrower shall
pay promptly, and in any event within 3 Business Days of demand, to
the L/C Issuer for its account or the account of such Lender, as
applicable, from time to time as specified by the L/C Issuer or a
Lender, such additional amounts as shall be sufficient to
compensate the L/C Issuer or such Lender for such increased costs
or reductions in amount.
(e) Notification
and Determination of Additional Costs. Each of the Administrative Agent and
each Lender and each Participant, as the case may be, agrees to
notify the Borrower of any event occurring after the Agreement Date
entitling the Administrative Agent or such Lender or such
Participant to compensation (the “Additional
Compensation”) under any of the preceding subsections of this
Section as promptly as practicable. The Administrative Agent or
such Lender or such Participant agrees to furnish to the Borrower
(and in the case of a Lender or a Participant, to the
Administrative Agent) a certificate setting forth in reasonable
detail the basis and amount of each request by the Administrative
Agent or such Lender for such Additional Compensation. Absent
manifest error, determinations by the Administrative Agent or any
Lender or any Participant of the effect of any Regulatory Change
shall be conclusive, provided that such determinations are made on
a reasonable basis and in good faith.
(a) Except
as otherwise provided in Sections 4.2(c)-(f) with
respect to the LIBOR Termination Date, if any Lender shall
determine (which determination shall, upon notice thereof to the
Borrower and the Administrative Agent, be conclusive and binding on
the Borrower) that, after the Effective Date, (i) the introduction
of or any change in or in the interpretation of any law makes it
unlawful, or (ii) any Governmental Authority asserts that it is
unlawful, for such Lender to make or continue any Loan as, or to
convert (if permitted pursuant to this Agreement) any Loan into, a
LIBOR Loan, the obligations of such Lender to make, continue or
convert into any such LIBOR Loan shall, upon such determination, be
suspended until such Lender shall notify the Administrative Agent
that the circumstances causing such suspension no longer exist, and
all outstanding LIBOR Loans payable to such Lender shall
automatically convert (if conversion is permitted under this
Agreement) into a Base Rate Loan, or be repaid (if no conversion is
permitted) at the end of the then current Interest Periods with
respect thereto or sooner, if required by law or such
assertion.
68
(b) Except
as otherwise provided in Sections 4.2(c)-(f) with
respect to the LIBOR Termination Date, if the Administrative
Agent or the Requisite Lenders
determine that for any reason adequate and reasonable means do not
exist for determining LIBOR or the Daily LIBOR Rate for any
requested Interest Period with respect to a proposed LIBOR
Loan, or that LIBOR or the Daily LIBOR
Rate for any requested Interest Period with respect to a
proposed LIBOR Loan does not
adequately and fairly reflect the cost to the Lenders of funding
such Loan, the Administrative Agent will promptly so notify the Borrower
and each Lender. Thereafter, the
obligation of the Lenders to make or maintain such LIBOR
Loan shall be suspended until
the Administrative Agent (upon the
instruction of the Requisite Lenders) revokes such notice. Upon
receipt of such notice, the Borrower may revoke any pending request for a borrowing of,
conversion to or continuation of such LIBOR Loan
or, failing that, will be deemed to
have converted such request into a request for a borrowing of a
Base Rate Loan in the amount specified therein.
(c) Notwithstanding
the foregoing, if the Administrative Agent determines (which
determination shall be final and conclusive, absent manifest error)
that either (x)(i) the circumstances set forth in Section 4.2(b)
have arisen and such circumstances are unlikely to be temporary, or
(ii) the circumstances set forth in Section 4.2(b) have not arisen
but the applicable supervisor or administrator (if any) of LIBOR
or the Daily LIBOR Rate or a
Governmental Authority having jurisdiction over the Administrative
Agent has made a public statement identifying the specific date
after which LIBOR or the Daily LIBOR
Rate shall no longer be used for determining interest rates
for loans (either such date, a “LIBOR Termination Date”), or (y) a
rate other than LIBOR and the Daily
LIBOR Rate has become a widely recognized benchmark rate for
newly originated loans in Dollars in the U.S. market, then the
Administrative Agent may (in consultation with the Borrower) choose
a replacement index for LIBOR and the
Daily LIBOR Rate and make adjustments to applicable margins
and related amendments to this Agreement as referred to below such
that, to the extent practicable, the all-in interest rate based on
the replacement index will be substantially equivalent to the
all-in LIBOR based interest rate in effect prior to its
replacement.
(d) The
Administrative Agent and the Borrower shall enter into an amendment
to this Agreement to reflect the replacement index, the adjusted
margins and such other related amendments as may be appropriate, in
the discretion of the Administrative Agent, for the implementation
and administration of the replacement index-based rate.
Notwithstanding anything to the contrary in this Agreement or the
other Loan Documents (including, without limitation, Section 13.6), such amendment
shall become effective without any further action or consent of any
other party to this Agreement at 5:00 p.m. (Cleveland, Ohio time)
on the tenth (10) Business Day after the date a draft of the
amendment is provided to the Lenders, unless the Administrative
Agent receives, on or before such tenth (10) Business Day, a
written notice from the Requisite Lenders stating that such Lenders
object to such amendment.
(e) Selection
of the replacement index, adjustments to the applicable margins,
and amendments to this Agreement (i) will be determined with due
consideration to the then-current market practices for determining
and implementing a rate of interest for newly originated loans in
the United States and loans converted from a LIBOR based rate to a
replacement index-based rate, and (ii) may also reflect adjustments
to account for (x) the effects of the transition from LIBOR to the
replacement index and (y) yield or risk-based differences between
LIBOR and the replacement index.
69
(f) Until
an amendment reflecting a new replacement index in accordance with
this Section 4.2 is
effective, each advance, conversion and renewal of a LIBOR Loan
will continue to bear interest with reference to LIBOR or the Daily LIBOR Rate, provided however, that if the
Administrative Agent determines (which determination shall be final
and conclusive, absent manifest error) that a LIBOR Termination
Date has occurred, then following the LIBOR Termination Date, all
LIBOR Loans shall automatically be converted to Base Rate Loans
until such time as an amendment reflecting a replacement index and
related matters as described above is implemented.
(g) Notwithstanding
anything to the contrary contained herein, if at any time the
replacement index is less than zero, at such times, such index
shall be deemed to be zero for purposes of this
Agreement.
The
Borrower shall pay to the Administrative Agent for the account of
each Lender, within 15 days after the Borrower receives a request
for such payment accompanied by the certificate described in the
final paragraph of this Section, such amount or amounts as shall be
sufficient (in the reasonable opinion of such Lender) to compensate
it for any loss, cost or expense that such Lender reasonably
determines is attributable to:
(a) any
payment or prepayment (whether mandatory or optional) of a LIBOR
Loan or Conversion of a LIBOR Loan, made by such Lender for any
reason (including, without limitation, acceleration) on a date
other than the last day of the Interest Period for such Loan;
or
(b) any
failure by the Borrower for any reason (including, without
limitation, the failure of any of the applicable conditions
precedent specified in Article VI to be satisfied) to
borrow a LIBOR Loan from such Lender on the requested date for such
borrowing, or to Convert a Base Rate Loan into a LIBOR Loan or
Continue a LIBOR Loan on the requested date of such Conversion or
Continuation (it being acknowledged that, subsequent to the
Borrower’s initial election of a one-month Interest Period,
until the Borrower makes an election otherwise in accordance with
Section 2.8, a one-month Interest Period will be applicable to
LIBOR Loans and such LIBOR Loans will be automatically continued
for successive one-month Interest Periods, subject to the terms of
Section 2.8.
Not in
limitation of the foregoing, such compensation shall include,
without limitation, an amount equal to the then present value of
(a) the amount of interest that would have accrued on such LIBOR
Loan for the remainder of the applicable Interest Period at the
rate applicable to such LIBOR Loan, less (b) the amount of interest
that would accrue on the same LIBOR Loan or for the same period if
LIBOR were set on the date on which such LIBOR Loan was repaid,
prepaid or Converted or the date on which the Borrower failed to
borrow, Convert or Continue such LIBOR Loan, calculating present
value by using as a discount rate LIBOR quoted on such date. Any
Lender requesting compensation under this Section shall provide the
Borrower with a statement setting forth in reasonable detail the
basis for requesting such compensation and the method for
determining the amount thereof. Absent manifest error,
determinations by any Lender in any such statement shall be
conclusive, provided that such determinations are made on a
reasonable basis and in good faith.
70
If (a)
a Lender requests compensation pursuant to Section 3.12 or 4.1, and the Requisite Lenders
are not also doing the same, or (b) the obligation of any Lender to
make LIBOR Loans or to Continue, or to Convert Base Rate Loans
into, LIBOR Loans shall be suspended pursuant to Sections 4.1(c), 4.2(a) or 4.3 but the obligation of the
Requisite Lenders shall not have been suspended under such
Sections, or (c) a Lender is a Non-Consenting Lender, then, so long
as there does not then exist any Default or Event of Default, the
Borrower may demand that such Lender (the “Affected Lender”), and
upon such demand the Affected Lender shall promptly, assign its
Revolving Commitment and Loans to an Eligible Assignee (who, in the
case of an assignment resulting from a Lender becoming a
Non-Consenting Lender, shall have consented to the applicable
amendment, waiver or consent) subject to and in accordance with the
provisions of Section
13.5(b) for a purchase price equal to the aggregate
principal balance of all Loans then owing to the Affected Lender
plus any accrued but unpaid interest thereon and accrued but unpaid
fees owing to the Affected Lender, or any other amount as may be
mutually agreed upon by such Affected Lender and Eligible Assignee.
Each of the Administrative Agent and the Affected Lender shall
reasonably cooperate in effectuating the replacement of such
Affected Lender under this Section, but at no time shall the
Administrative Agent, such Affected Lender nor any other Lender be
obligated in any way whatsoever to initiate any such replacement or
to assist in finding an Eligible Assignee. The exercise by the
Borrower of its rights under this Section shall be at the
Borrower’s sole cost and expense and at no cost or expense to
the Administrative Agent, the Affected Lender or any of the other
Lenders. The terms of this Section shall not in any way limit the
Borrower’s obligation to pay to any Affected Lender
compensation owing to such Affected Lender pursuant to Section 3.12 or 4.1 with respect to periods up
to the date of replacement.
If the
obligation of any Lender to make LIBOR Loans or to Continue, or to
Convert Base Rate Loans into, LIBOR Loans shall be suspended
pursuant to Section
4.1(c), Section
4.2(a) or Section
4.3, then such Lender’s LIBOR Loans shall be
automatically Converted into Base Rate Loans on the last day(s) of
the then current Interest Period(s) for LIBOR Loans (or, in the
case of a Conversion required by Section 4.1(c) or 4.3, on such earlier date as
such Lender may specify to the Borrower with a copy to the
Administrative Agent) and, unless and until such Lender gives
notice as provided below that the circumstances specified in
Section 4.1,
4.2(a) or
4.3 that gave rise
to such Conversion no longer exist:
(a) to
the extent that such Lender’s LIBOR Loans have been so
Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender’s LIBOR Loans shall be
applied instead to its Base Rate Loans; and
(b) all
Loans that would otherwise be made or Continued by such Lender as
LIBOR Loans shall be made or Continued instead as Base Rate Loans,
and all Base Rate Loans of such Lender that would otherwise be
Converted into LIBOR Loans shall remain as Base Rate
Loans.
71
If such
Lender gives notice to the Borrower (with a copy to the
Administrative Agent) that the circumstances specified in
Section 4.1,
4.2(a) or
4.3 that gave rise
to the Conversion of such Lender’s LIBOR Loans pursuant to
this Section no longer exist (which such Lender agrees to do
promptly upon such circumstances ceasing to exist) at a time when
LIBOR Loans made by other Lenders are outstanding, then such
Lender’s Base Rate Loans shall be automatically Converted, on
the first day(s) of the next succeeding Interest Period(s) for such
outstanding LIBOR Loans, to the extent necessary so that, after
giving effect thereto, all Loans held by the Lenders holding LIBOR
Loans and by such Lender are held pro rata (as to principal
amounts, Types and Interest Periods) in accordance with their
respective Revolving Commitments.
Each
Lender agrees that it will use reasonable efforts (consistent with
legal and regulatory restrictions) to designate an alternate
Lending Office with respect to any of its Loans affected by the
matters or circumstances described in Section 3.12, 4.1, 4.2(a) or 4.3 to reduce the liability of
the Borrower or avoid the results provided thereunder, so long as
such designation is not disadvantageous to such Lender as
determined by such Lender in its sole discretion, except that such
Lender shall have no obligation to designate a Lending Office
located in the United States of America.
Calculation of all
amounts payable to a Lender under this Article IV shall be made as
though such Lender had actually funded LIBOR Loans through the
purchase of deposits in the relevant market bearing interest at the
rate applicable to such LIBOR Loans in an amount equal to the
amount of the LIBOR Loans and having a maturity comparable to the
relevant Interest Period; provided, however, that each Lender may
fund each of its LIBOR Loans in any manner it sees fit and the
foregoing assumption shall be used only for calculation of amounts
payable under this Article
IV.
ARTICLE V.
(a) Initial
Borrowing Base Properties. The Obligations shall be secured by a
first priority lien and security interest granted in favor of the
Administrative Agent for the benefit of the Lenders, the
Administrative Agent and the Specified Derivatives Providers on the
Collateral. Each of the Eligible Properties constituting the
Initial Borrowing Base Properties shall be a Borrowing Base
Property unless and until it is released or disqualified as such
pursuant to Section
5.2(a) or (b).
(b) Additional
Borrowing Base Properties.
(i) Notice
and Due Diligence Package. If at any time the Borrower desires
that an Eligible Property be approved as a Borrowing Base Property,
the Borrower shall so notify the Administrative Agent in writing (a
“Borrowing Base
Property Request”), a copy of which the Administrative
Agent shall provide to the Lenders. In connection with each
Borrowing Base Property Request, the Borrower shall deliver to the
Administrative Agent the following due diligence package with
respect to such Eligible Property, which shall be in form and
substance reasonably satisfactory to the Administrative Agent in
its sole and absolute discretion (the “Due Diligence
Package”):
72
(A) a
new Appraisal for such Eligible Property acceptable to
Administrative Agent;
(B) current
rent rolls and cash flow and operating statement projections,
including any near term capital expenditures, showing prior year,
year-to-date and projected performance and budget;
(C) historical
operating statements and rent rolls associated with such Eligible
Property;
(D) copies
of tenant leases, certificates of occupancy, site plans, and market
information association with such Eligible Property;
(E) each
of the following: (i) a Compliance Certificate, executed by a
Responsible Officer of the Borrower, demonstrating pro forma
compliance with the covenants set forth in Section 10.1; and (ii) a pro
forma Borrowing Base Availability Certificate showing the revised
Borrowing Base Properties after giving effect to the addition of
the requested Eligible Property;
(F) each
of the following: (i) a current Phase I Environmental Report, dated
within six (6) months (or such longer time frame approved by the
Administrative Agent) of the date an Eligible Property is added as
a Borrowing Base Property, such Phase I to be acceptable to the
Requisite Lenders, (ii) a current property condition report, and
(iii) evidence of proper fee title and a current survey and
zoning report, in each case dated within twelve (12) months of the
date an Eligible Property is added as a Borrowing Base Property (or
other satisfactory survey and zoning information, together with
evidence of compliance with zoning to the extent reasonably
requested by the Administrative Agent), collectively evidencing
that such Eligible Property is free from all environmental and
structural issues (other than those accepted by the Administrative
Agent and the Requisite Lenders);
(G) to
the extent the Eligible Property is not owned by an existing Loan
Party, formation and governing documents of the Person that owns
such Eligible Property that will become a Subsidiary Guarantor, and
of each Person that holds a direct or indirect Equity Interest in
such Person;
(H) Evidence
of insurance and owners’ title insurance policies, or with
the consent of the Administrative Agent, an executed commitment to
issue a lender’s title insurance policy in a pro forma form
reasonably acceptable to Administrative Agent, which final issue
may be “held open” in anticipation of future financing
(together with copies of all exception documents); and
73
(I) any
other due diligence as reasonably requested by the Administrative
Agent.
(ii) Review
and Approval. The
Administrative Agent and the Requisite Lenders shall endeavor to
approve or reject such Borrowing Base Property Request within ten
(10) days following receipt of a complete copy of the applicable
Due Diligence Package (or such shorter time, if applicable, as the
Administrative Agent determines is reasonably practicable). Any
such approval shall be subject to the satisfaction of the
requirements set forth in Section 5.1(b)(iii). For the
avoidance of doubt, if any of the conditions set forth below are
not satisfied in the reasonable discretion of the Administrative
Agent (including any documentation delivered under the Due
Diligence Package) with respect to any Real Estate Asset, then
unless any such requirement has been waived in writing by the
Administrative Agent and the Requisite Lenders, such Real Estate
Asset shall not become a Borrowing Base Property.
(iii) Conditions
Precedent to Effectiveness. An Eligible Property that has been
approved pursuant to Section 5.1(b)(ii) shall be
included in the calculation of Borrowing Base Availability as a
Borrowing Base Property upon the satisfaction of each of the
following in form and substance satisfactory to the Administrative
Agent:
(A) if
the Eligible Property is not owned by an existing Subsidiary
Guarantor, a joinder or accession agreement to the Guaranty,
pursuant to which the Person that owns such Eligible Property (and
each other direct or indirect owner of such new Subsidiary
Guarantor that is a Subsidiary of the Borrower) becomes a
Subsidiary Guarantor;
(B) a
Pledge and Security Agreement or joinder thereto, in form and
substance reasonably satisfactory to the Administrative Agent,
reflecting the pledge of Equity Interests by the Borrower in each
such new Subsidiary Guarantor as additional Collateral, together
with, to the extent requested by the Administrative Agent,
certificates and instruments representing the Equity Interests of
each such new Subsidiary Guarantor, pledged as Collateral pursuant
to the applicable Pledge and Security Agreement, accompanied by
undated stock powers or instruments of transfer executed in
blank;
(C) a
Mortgage securing the Obligations (it being acknowledged that
certain Mortgages, with the approval of the Administrative Agent,
may provide for a limitation on the principal amount of the Loans
and Commitments secured thereby to an amount equal to 110% of the
Borrowing Base Property Value of the Eligible Property to which
such Mortgage relates);
(D) an
Environmental Indemnity in form and substance reasonably
satisfactory to the Administrative Agent;
74
(E) an
Assignment of Leases and Rents and Assignment of Licenses, Permits
and Contracts, each in form and substance reasonably satisfactory
to the Administrative Agent, as collateral security for the
Obligations of the Borrowers, provided that at the discretion
of the Administrative Agent, any such Assignment of Leases and
Rents and/or Assignment of Licenses, Permits and Contracts may be
contained within the applicable Mortgage rather than in a separate
document;
(F) the
transfer of the “landlord’s” or
“lessor’s” interest in all Leases with respect to
such Eligible Property shall have been consummated in accordance
with the terms of each thereof and all such Leases shall name the
applicable Subsidiary Guarantor as “landlord” or
“lessor” thereunder, whether by amendment, assignment
or otherwise, subject only to the consent or approval of the
Federal Agency tenant under such Leases (which consent or approval
the Loan Parties shall use commercially reasonable and diligent
efforts to obtain promptly after the date such Real Estate Asset
becomes an Eligible Property and in any event within six (6) months
after such date (or such longer period approved by the
Administrative Agent));
(G) the
Property Management Agreement with respect to such Eligible
Property and an Assignment and Subordination of Management
Agreement in respect of the same (or other property management
arrangement satisfactory to the Administrative Agent);
(H) UCC
financing statements and fixture filings required by the
Administrative Agent, in form and substance reasonably satisfactory
to the Administrative Agent;
(I) a
title insurance policy, issued by a title insurance company
reasonably acceptable to the Administrative Agent (or, as
applicable, the delivery of applicable title policy endorsements or
a new title policy with tie-in or aggregation endorsements to
existing title policies), insuring the lien of the Mortgage as a
first lien on the Eligible Property and showing no exceptions to
title unacceptable to Administrative Agent other than Eligible
Property Permitted Liens and otherwise in form and substance, and
with endorsements, satisfactory to the Administrative Agent (and
including copies of all exception documents);
(J) a
current Statement of Lease with respect to such Real Estate Asset,
and, to the extent requested by the Administrative Agent, the Loan
Parties shall use commercially reasonable and diligent efforts to
obtain an SNDA within a time period satisfactory to the
Administrative Agent after such Real Estate Asset becomes an
Eligible Property hereunder, each in form and substance reasonably
satisfactory to the Administrative Agent, with respect to each
tenant of such Eligible Property;
75
(K) with
respect to any Eligible Property already owned by a new Subsidiary
Guarantor, a copy of the Novation Agreements with each applicable
Federal Agency or to the extent such Eligible Property is being
acquired, any pre-novation assurance letters obtained by the
applicable Subsidiary Guarantor, it being agreed that such
Subsidiary Guarantor will request such assurance letters from each
Federal Agency tenant (to be followed by the applicable Novation
Letters following such Real Estate Asset becoming an Eligible
Property hereunder within a time period satisfactory to the
Administrative Agent);
(L) a
perfection certificate and/or supplements to any existing
perfection certificates with respect to each such Eligible
Property;
(M) an
opinion of counsel (including local counsel, as required by the
Administrative Agent) to the new Subsidiary Guarantor, addressed to
the Administrative Agent and the Lenders and in form and substance
reasonably satisfactory to the Administrative Agent, in the
jurisdiction in which such new Subsidiary Guarantor is organized
and an opinion of local counsel admitted to practice in the
jurisdiction in which such Eligible Property is located, in each
case unless waived by the Administrative Agent;
(N) the
deliverables described in Sections 6.1(a)(x) through
(xiii) with respect
to the new Subsidiary Guarantor unless any such item is waived by
the Administrative Agent;
(O) a
Borrowing Base Certificate calculated as of the end of the then
most recently ended Reference Period for which a Borrowing Base
Certificate has been delivered pursuant to Section 9.4 (giving pro forma
effect to the addition of such Eligible Property as a Borrowing
Base Property and any other Borrowing Base Properties added since
the end of such Reference Period);
(P) a
certificate signed by a Responsible Officer of the Borrower,
certifying the following as of the effective date of such Borrowing
Base Property Request approval, both immediately before and
immediately after giving effect thereto: (1) that no Default or
Event of Default exists, (2) that the representations and
warranties made or deemed made by each Loan Party in the Loan
Documents to which it is a party are true and correct in all
material respects (or
in all respects to the extent that such representations and
warranties are already subject to concepts of materiality) on and
as of such date with the same force and effect as if made on and as
of such date, except to the extent that such representations and
warranties expressly relate solely to an earlier date (in which
case such representations and warranties are true and correct in
such respects on and as of such earlier date), (3) that such
Eligible Property satisfies the requirements of an “Eligible
Property” set forth in the definition thereof and (4) that
all of the financial covenants set forth in this Agreement have
been satisfied (setting forth calculations demonstrating such
compliance);
76
(Q) Lien
search results (consistent with Section 6.01(a)(xv)), to the extent
requested by the Administrative Agent;
(R) any
fees payable to the Administrative Agent in connection with such
Borrowing Base Property Request (including the reasonable fees,
charges and disbursements of outside counsel to the Administrative
Agent);
(S) all
documentation and other information required by bank regulatory
authorities under applicable “know your customer” and
anti-money laundering rules and regulations, including USA PATRIOT
Act, including any SS4 to the extent requested by the
Administrative Agent, a properly completed and signed IRS Form W-8
or W-9, as applicable, and the Certification of Beneficial
Ownership for each such new Subsidiary Guarantor (together with an
updated organizational structure chart);
(T) evidence
that no portion of the Eligible Property is located in an area
designated by the Secretary of Housing and Urban Development as a
special flood hazard area, or, if any such Eligible Property is
located in such an area, unless the improvements located on such
Eligible Property are excluded from the applicable Mortgage (as
determined by the Administrative Agent in its sole discretion),
flood hazard insurance acceptable to Administrative Agent and each
Lender in its sole discretion;
(U) evidence
that the Subsidiary Guarantor that is the owner of such Eligible
Property has opened its operating account with the Administrative
Agent or a Lender;
(V) certificates
of insurance and endorsements and other evidence reasonably
satisfactory to the Administrative Agent of compliance with the
insurance requirements of this Agreement; and
(W) such
other documents, agreements and instruments related to the approval
or denial of the Borrowing Base Property Request as the
Administrative Agent on behalf of the Lenders may reasonably
request.
(iv) Cape
Canaveral Property. Notwithstanding anything to the contrary
in this Section 5.1(b), including clause (ii) above, the Cape
Canaveral Property shall be included in the calculation of
Borrowing Base Availability as a Borrowing Base Property upon the
satisfaction of each of the following in form and substance
satisfactory to the Administrative Agent (it being acknowledged
that the Due Diligence Package with respect to such property has
been received by the Administrative Agent as of the Effective Date
and the forms of the following in substantially the form exchanged
between the Borrower and Administrative Agent as of the Effective
Date are satisfactory to the Administrative Agent):
77
(A) a
Mortgage securing the Obligations (which shall include a an
Assignment of Leases and Rents and Assignment of Licenses, Permits
and Contracts);
(B) the
Cape Canaveral Consent;
(C) an
Environmental Indemnity;
(D) an
Assignment and Subordination of Management Agreement in respect of
the Property Management Agreement with respect to such Eligible
Property;
(E) UCC
financing statements and fixture filings required by the
Administrative Agent, in form and substance reasonably satisfactory
to the Administrative Agent;
(F)
a title insurance policy, issued by a title insurance company
reasonably acceptable to the Administrative Agent (or, as
applicable, the delivery of applicable title policy endorsements or
a new title policy with tie-in or aggregation endorsements to
existing title policies), insuring the lien of the Mortgage as a
first lien on the Eligible Property and showing no exceptions to
title unacceptable to Administrative Agent other than Eligible
Property Permitted Liens and otherwise in form and substance, and
with endorsements, satisfactory to the Administrative Agent (and
including copies of all exception documents);
(G) an
opinion of Florida counsel, addressed to the Administrative Agent
and the Lenders and in form and substance reasonably satisfactory
to the Administrative Agent;
(H) Borrower
shall have commenced and diligently pursued additional
environmental assessments and any other third-party recommendations
with respect to the existing vapor migration concerns at the Cape
Canaveral Property, until such time as such concerns are resolved
in a manner satisfactory to the Administrative Agent; provided,
that the foregoing condition may be waived, or the time period for
compliance therefore may be extended, by the Administrative Agent
to add the Cape Canaveral Property as a Borrowing Base Property
during such period;
(I) a
Borrowing Base Certificate calculated as of the end of the then
most recently ended Reference Period for which a Borrowing Base
Certificate has been delivered, or if no such period is applicable,
the Closing Date (giving pro forma effect to the addition of such
Eligible Property as a Borrowing Base Property and any other
Borrowing Base Properties added since the end of such Reference
Period);
78
(J) a
certificate signed by a Responsible Officer of the Borrower,
certifying that, as of the date the Cape Canaveral Property shall
be included in the calculation of Borrowing Base Availability as a
Borrowing Base Property, both immediately before and immediately
after giving effect thereto: (1) no Default or Event of Default
exists, (2) the representations and warranties made or deemed made
by each Loan Party in the Loan Documents to which it is a party are
true and correct in all material respects (or in all respects to
the extent that such representations and warranties are already
subject to concepts of materiality) on and as of such date with the
same force and effect as if made on and as of such date, except to
the extent that such representations and warranties expressly
relate solely to an earlier date (in which case such
representations and warranties are true and correct in such
respects on and as of such earlier date), (3) the Cape Canaveral
Property satisfies the requirements of an “Eligible
Property” set forth in the definition thereof, and (4) all of
the financial covenants set forth in this Agreement have been
satisfied (setting forth calculations demonstrating such
compliance); and
(K) a
current Statement of Lease with respect to the Cape Canaveral
Property.
In
connection with the addition of the Eligible Property as a
Borrowing Base Property and the execution and delivery of the
Mortgage and other applicable Collateral Documents, the Borrower
shall be responsible for any reasonable, actual out-of-pocket fees,
costs or expenses incurred by Administrative Agent (including the
reasonable fees, charges and disbursements of outside counsel to
the Administrative Agent); any required mortgage recording,
intangibles or transfer taxes; any title insurance premiums; any
recording charges or other amounts payable in connection with the
recording of the Mortgages and Collateral Documents.
(a) Release
of Borrowing Base Properties. From time to time the Borrower may
request, upon not less than 10 Business Days’ prior written
notice to the Administrative Agent (or such shorter period to which
the Administrative Agent may agree in its sole discretion), that a
Borrowing Base Property ceases to be a Borrowing Base Property and
that the Mortgage and the other Collateral Documents on or relating
to the affected Borrowing Base Property be discharged (solely with
respect to such Borrowing Base Property), which release may be
effected by the Administrative Agent, without further consent of
the Lenders, if all of the following conditions are satisfied as of
the date of such release:
(i) The
Borrower has certified that no Default or Event of Default exists
or will exist immediately after giving effect to such release and
the reduction of Borrowing Base Availability by reason of such
release;
79
(ii) the
Borrower shall have delivered to the Administrative Agent a
Borrowing Base Certificate demonstrating on a pro forma basis that
the aggregate principal amount of all outstanding Loans will not
exceed the Borrowing Base Availability or the aggregate Revolving
Commitments of all Lenders, in each case after giving effect to
such release and any prepayment required pursuant to Section 2.7(b) to be made
and/or the acceptance of any Eligible Property as an additional or
replacement Borrowing Base Property to be given concurrently with
such request;
(iii) the
Borrower shall have delivered to the Administrative Agent a
Compliance Certificate demonstrating that the covenants set forth
in Section 10.1,
will continue to be satisfied, after giving effect to such
release;
(iv) the
Borrower shall have paid any amounts as are required in order to
ensure that the aggregate principal amount of all outstanding Loans
will not exceed the Borrowing Base Availability or the aggregate
Revolving Commitments of all Lenders, in each case after giving
effect to such release; and
(v) the
Borrower shall have paid to the Administrative Agent all reasonable
costs and expenses, including reasonable outside attorneys’
fees, incurred by the Administrative Agent in connection with such
release.
Upon
satisfaction of the foregoing conditions, Administrative Agent
shall, as soon as is reasonably practicable, execute such documents
and take such actions as necessary to effectuate the release of
such Borrowing Base Property from the Lien in favor of
Administrative Agent pursuant to the Loan Documents and to release
such Borrowing Base Property from the requirements of a
“Borrowing Base Property” hereunder and thereunder and
the Loan Party owning such Borrowing Base Property from obligations
solely with respect to the Borrowing Base Property, other than
obligations that survive the payment of the Loans and all other
amounts payable hereunder or under the other Loan Documents and the
termination of this Agreement.
(b) Disqualification
of Borrowing Base Properties. A Borrowing Base Property immediately
and automatically shall cease to be a Borrowing Base Property and
shall be excluded from the calculation of Borrowing Base
Availability if (i) such Borrowing Base Property ceases to be an
Eligible Property or (ii) the Administrative Agent ceases to hold a
valid and perfected first priority Lien (subject to Eligible
Property Permitted Liens) on the fee interest in such Borrowing
Base Property pursuant to a Mortgage.
(c) Release
of Subsidiary Guarantor. In
the event that all Borrowing Base Properties owned by a Subsidiary
Guarantor shall have been released as Collateral for the
Obligations in accordance with the terms of this Agreement, then
such Subsidiary Guarantor shall, upon the written request of the
Borrower, be released by the Administrative Agent from liability
under this Agreement and the other Loan Documents, other
than obligations that survive the payment of the Loans and the
termination of this Agreement.
Initially,
Borrowing Base Availability shall be the amount set forth as such
in the Borrowing Base Certificate delivered under Section 6.1(a)(xvii).
Thereafter, Borrowing Base Availability shall be the amount set
forth as such in the Borrowing Base Certificate most recently
delivered under Sections
5.1, 5.2 and
9.4 or otherwise as
required by this Agreement.
80
ARTICLE VI.
The
obligation of the Lenders to effect or permit the occurrence of the
initial making of Loans or issuance of a Letter of Credit hereunder
is subject to the following conditions precedent:
(a) The
Administrative Agent shall have received each of the following, in
form and substance satisfactory to the Administrative Agent and the
Lenders:
(i) Original
counterparts of (1) this Agreement, (2) the Guaranty, (3) the
Pledge and Security Agreement; (4) with respect to each Initial
Borrowing Base Property, the (A) Mortgage, which shall include an
Assignment of Licenses, Permits and Contracts and an Assignment of
Leases and Rents, (B) the Environmental Indemnity, (C) to the
extent required by the Administrative Agent, Property Management
Agreements for each Borrowing Base Property (which may be PDF
counterparts), and (D) to the extent required by the Administrative
Agent, an Assignment of Property Management Agreement for each
Property Management Agreement (which may be PDF counterparts); and
(5) the Deposit Account Pledge Agreement, in each case executed and
delivered by each of the parties hereto and thereto, as
applicable;
(ii) Original
Revolving Notes executed by the Borrower, payable to each Lender
that has requested a Revolving Note at least one (1) Business Day
prior to closing and an original Swingline Note in favor of the
Swingline Lender;
(iii) A
lender’s title insurance policy, issued by a title insurance
company reasonably acceptable to the Administrative Agent, insuring
the Lien of the Mortgage as a first priority lien on each of the
Initial Borrowing Base Properties, and otherwise showing no
exceptions to title unacceptable to Administrative Agent, or with
the consent of the Administrative Agent, an executed commitment to
issue an owner’s title insurance policy in pro forma form
reasonably acceptable to the Administrative Agent (it being
acknowledged that the Mortgages may be recorded promptly following
the Effective Date so long as the title company has issued the
title policies (or arrangements satisfactory to the Administrative
Agent shall have been made therefor)), and all taxes, fees and
other charges then due and payable in connection with the recording
of the Mortgages shall have been paid in full;
(iv) A
current survey of each Initial Borrowing Base Property or other
survey documentation acceptable to the Administrative
Agent;
(v) An
Appraisal of each Initial Borrowing Base Property in form and
substance acceptable to the Administrative Agent and completed
within sixty (60) days prior to the Effective Date, or such earlier
date as the Administrative Agent shall accept;
81
(vi) A
current Phase I Environmental Report, reasonably acceptable to the
Administrative Agent for each Initial Borrowing Base
Property;
(vii) Proper
UCC-1 financing statements and fixture filings in form appropriate
for filing under the Uniform Commercial Code of all jurisdictions
that the Administrative Agent may deem necessary or desirable in
order to perfect the Liens created under the Collateral Documents
covering the Collateral; and arrangements satisfactory to the
Administrative Agent shall have been made for the recording or
filing of the Collateral Documents (and/or proper notices or UCC-1
financing statements or fixture filings in respect thereof) in
order to perfect the Liens of the Administrative Agent in the
Collateral as determined by the Administrative Agent;
(viii) To
the extent requested by the Administrative Agent, a perfection
certificate with respect to the Borrower and the Initial Borrowing
Base Properties;
(ix) Opinions
of counsel (including local counsel as required by the
Administrative Agent) to the Loan Parties addressed to the
Administrative Agent, the L/C Issuer and the Lenders and their
respective successors and permitted assigns;
(x) The
articles of incorporation, articles of organization, certificate of
limited partnership, declaration of trust or other comparable
organizational instrument (if any) of each Loan Party certified as
of a recent date by the Secretary of State (or comparable official)
of the state of formation of such Loan Party;
(xi) A
certificate of good standing or certificate of similar meaning with
respect to each Loan Party issued as of a recent date by the
Secretary of State (or comparable official) of the state of
formation of each such Loan Party and certificates of qualification
to transact business or other comparable certificates issued by
each Secretary of State (or comparable official and any state
department of taxation, as applicable) of each state in which such
Loan Party is required to be so qualified;
(xii) A
certificate of incumbency signed by the Secretary or Assistant
Secretary (or other individual performing similar functions) of
each Loan Party (or the Secretary or Assistant Secretary of such
Loan Party’s sole member, sole manager or general partner)
with respect to each of the officers of such Loan Party authorized
to execute and deliver the Loan Documents to which such Loan Party
is a party, and in the case of the Borrower, the officers of the
Borrower (or of the Parent Guarantor acting in its capacity as the
sole general partner of the Borrower) then authorized to deliver
Notices of Borrowing, Notices of Continuation, Notices of
Conversion and notices of prepayment;
82
(xiii) Copies
certified by the Secretary or Assistant Secretary (or other
individual performing similar functions) of each Loan Party (or the
Secretary or Assistant Secretary of such Loan Party’s sole
member, sole manager or general partner) of (x) the partnership
agreement, by-laws, or limited liability company operating
agreement, as applicable, and/or other comparable document in the
case of any other form of legal entity and (y) all partnership,
corporate, member or other necessary action taken by such Loan
Party to authorize the execution, delivery and performance of the
Loan Documents to which it is a party;
(xiv) Payment
of the Fees then due and payable under the Fee Letter payable to
the Administrative Agent, the Titled Agent and the Lenders on or
prior to the Effective Date, and of the costs and expenses of the
Administrative Agent and the Titled Agent (including, without
limitation, the reasonable fees, charges and disbursements of
outside counsel to the Administrative Agent) to the extent invoiced
or reflected on the Administrative Agent’s Flow of Funds
statement at least one (1) Business Day prior to the Effective
Date;
(xv) The
results of (A) a recent UCC lien search in the jurisdiction of
organization of each Loan Party (or direct or indirect parent
thereof), which search results shall reveal no Liens on any of the
assets or the direct or indirect Equity Interests of the Loan
Parties (through the Parent Guarantor) except for Liens permitted
by Section 10.6 or
Liens as to which satisfactory arrangements have been made for the
discharge on or promptly after the Effective Date pursuant to a
payoff letter or other documentation reasonably satisfactory to the
Administrative Agent, and (B) recent tax (state and federal),
judgment, litigation and bankruptcy searches against each Loan
Party in all relevant jurisdictions;
(xvi) A
Compliance Certificate calculated as of the Effective Date (giving
pro forma effect to the financing contemplated by this Agreement
and the use of the proceeds of the Loans to be funded on the
Effective Date);
(xvii) A
Borrowing Base Certificate calculated as of the Effective Date, for
the Initial Borrowing Base Properties;
(xviii) A
certificate signed by a Responsible Officer of the Borrower,
certifying that the conditions set forth in Section 6.1(b) have been
satisfied (assuming for this purpose that the Administrative Agent
and the Lenders are satisfied with or have approved the items or
matters requiring their satisfaction or approval
therein);
(xix) To
the extent requested by the Administrative Agent, a Due Diligence
Package, to the extent of any items not specifically listed in this
Section 6.1(a) and not otherwise provided hereunder, for each of
the Initial Borrowing Base Properties, and satisfactory review and
approval of the same by each of the Administrative Agent and
Lenders in their sole discretion;
(xx) The
financial statements described in Section 7.11;
(xxi) Payoff
letters for any Indebtedness listed on Schedule 6.1(a), and payment
in full of such Indebtedness with the proceeds of the Loans in
accordance with the Notice of Borrowing and a tri-party letter with
a satisfactory title company relating thereto;
83
(xxii) Evidence
that no portion of any Initial Borrowing Base Property is located
in an area designated by the Secretary of Housing and Urban
Development as a special flood hazard area, or flood hazard
insurance acceptable to Administrative Agent in its sole
discretion;
(xxiii) A
solvency certificate in the form attached hereto as Exhibit L;
(xxiv) All
documentation and other information required by the Administrative
Agent or any Lender in connection with the requirements of bank
regulatory authorities under applicable “know your
customer” and anti-money laundering rules and regulations,
including USA PATRIOT Act, and a properly completed and signed IRS
Form W-8 or W-9, as applicable, for each Loan Party (and each
holder, directly or indirectly, of 25% or more of the Equity
Interests of any Loan Party), and the Certification of Beneficial
Ownership for each Loan Party;
(xxv) Certificates
of insurance and endorsements and other evidence reasonably
satisfactory to the Administrative Agent of compliance with the
insurance requirements set forth in Section 8.5;
(xxvi) an
amendment to, or amendment and restatement of, the loan documents
evidencing the HCM Mezzanine Debt (as in effect immediately prior
to the Effective Date) in form and substance satisfactory to the
Administrative Agent in its sole discretion, together with
collateral releases with respect to all security interests,
guaranty terminations and related documentation required by the
Administrative Agent;
(xxvii) Evidence
of the absence of any action, suit, investigation or proceeding,
pending or threatened, in any court or before any arbitrator or
Governmental Authority that purports to affect the Loan Parties in
a materially adverse manner or any transaction contemplated under
this Agreement, or that could reasonably be expected to have a
Material Adverse Effect on the Loan Parties or any transaction
contemplated hereby or on the ability of the Loan Parties to
perform their obligations under the Loan Documents (and the Loan
Parties shall certify that, as of the Effective Date, they do not
reasonably expect that the proceedings described on Schedule 7.9 will have a
Material Adverse Effect on any Loan Party or on any Loan
Party’s ability to perform its obligations under the Loan
Documents);
(xxviii)
An organizational chart, capitalization table, prospectus, and any
other documents detailing the corporate model and asset composition
of the Loan Parties and their Subsidiaries, and satisfactory review
and approval of the same by each of the Administrative Agent and
Lenders in their sole discretion;
84
(xxix)
Formal credit approval by each Lender party hereto on the Effective
Date; and
(xxx) Such
other documents, agreements and instruments as the Administrative
Agent on behalf of the Lenders may deem necessary.
In
connection with the recordation of the Mortgage and other
Collateral Documents, the Loan Parties shall be responsible on a
joint and several basis for any required mortgage recording,
intangibles or transfer taxes; any title insurance premiums; and
any recording charges or other amounts payable in connection with
the recording of the Mortgages and Collateral
Documents.
(b)
The Administrative
Agent and the Lenders shall be satisfied that:
(i) Both
immediately before and immediately after giving effect to the
financing contemplated by this Agreement and the use of the
proceeds of the Loans to be funded on the Effective Date, (A) no
Default or Event of Default exists, (B) the representations and
warranties made or deemed made by each Loan Party in the Loan
Documents to which it is a party are true and correct in all
respects on and as of the Effective Date, except to the extent that
such representations and warranties expressly relate solely to an
earlier date (in which case such representations and warranties are
true and correct in all respects on and as of such earlier
date);
(ii) There
shall not have occurred any material adverse change since December
31, 2018 in the business, assets, operations or condition
(financial or otherwise) of any Loan Party and there shall be no
materially adverse information that has become known that is
inconsistent with the results of the due diligence review of the
Administrative Agent or the Lenders or other information provided
by or at the direction of the Loan Parties;
(iii) After
giving effect to the financing contemplated by this Agreement and
the use of the proceeds of the Loans to be funded or Letter of
Credit to be issued on the Effective Date, there shall not have
occurred any event or condition that constitutes an “event of default”
(howsoever defined) or that, with the giving of any notice, the
passage of time, or both, would be an “event of
default” under the HCM Mezzanine Debt Documents (after giving
effect to the amendment and/or amendment and restatement thereof
entered into on the Effective Date) or under any of the Loan
Parties’ other material financial obligations in existence on
the Effective Date; and
(iv) Each
of the Loan Parties and its Subsidiaries shall have received all
approvals, consents and waivers, and shall have made or given all
necessary filings and notices, as shall be required to consummate
the transactions contemplated hereby without the occurrence of any
default under, conflict with or violation of (1) any Applicable Law
applicable to the Loan Parties or its assets including, without
limitation, the Borrowing Base Properties, or (2) any material
agreement, document or instrument to which any Loan Party is a
party or by which any Loan Party or its properties is
bound.
85
The
obligations of the Lenders to make any Loans and of the L/C Issuer
to issue Letters of Credit, are all subject to the further
conditions precedent that: (a) no Default or Event of Default shall
exist as of the date of the making of such Loan or date of issuance
of such Letter of Credit or would exist immediately after giving
effect thereto (including compliance with the Borrowing Base
Availability after giving effect to the making of the requested
Loans or Letter of Credit issuance); (b) the representations and
warranties made or deemed made by each Loan Party in the Loan
Documents to which it is a party shall be true and correct in all
material respects (or in all respects to the extent that such
representations and warranties are already subject to concepts of
materiality) on and as of the date of the making of such Loan or
date of issuance of such Letter of Credit with the same force and
effect as if made on and as of such date except to the extent that
such representations and warranties expressly relate solely to an
earlier date (in which case such representations and warranties
shall have been true and correct in all material respects on and as
of such earlier date); and (c) in the case of the issuance of a
Letter of Credit or the making of a Swingline Loan, no Lender shall
be a Defaulting Lender; provided, however, in the case of the
issuance of a Letter of Credit, the L/C Issuer may, in its sole and
absolute discretion, waive this condition precedent on behalf of
itself and all Lenders. Each Credit Event and request by the
Borrower therefor shall constitute a certification, representation
and warranty by the Borrower to the effect set forth in
clauses (a) and
(b) of the
preceding sentence (both as of the date of the giving of notice
relating to such Credit Event and, unless the Borrower otherwise
notifies the Administrative Agent prior to the date of such Credit
Event, as of the date of the occurrence of such Credit
Event).
ARTICLE VII.
In
order to induce the Administrative Agent, the L/C Issuer and each
Lender to enter into this Agreement and to make Loans, each of the
Loan Parties jointly and severally represents and warrants to the
Administrative Agent and each Lender as follows:
Each of
the Loan Parties and each of their respective Subsidiaries (a) is a
partnership, corporation, trust or other legal entity, duly
organized or formed, validly existing and in good standing under
the jurisdiction of its incorporation or formation, has the power
and authority to own or lease its respective properties and to
carry on its respective business as now being and hereafter
proposed to be conducted, and (b) is duly qualified and is in good
standing as a foreign corporation, partnership, trust or other
legal entity, and authorized to do business, in each jurisdiction
in which the character of its properties or the nature of its
business requires such qualification or authorization except to the
extent the failure to satisfy the foregoing clause (b) could,
either individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect (but including, in any event, each
Loan Party that owns a Borrowing Base Property is so qualified in
the jurisdiction in which such Borrowing Base Property is
located).
86
(i) As
of the Agreement Date, Part I of Schedule 7.2 is a complete and
correct list of all Subsidiaries of each of the Loan Parties and an
organizational chart, setting forth for each Loan Party and its
respective Subsidiaries (a) the jurisdiction of organization of
each such Loan Party or Subsidiary, (b) each Person directly or
indirectly holding any Equity Interests in such Loan Party or
Subsidiary through the level of ownership shown on such
organizational chart, (c) the nature of the Equity Interests held
by each such Person and (d) the percentage of ownership of such
Loan Party or Subsidiary represented by such Equity Interests.
Without limitation of the foregoing, Part I of Schedule 7.2 sets forth the
holders of the Series B Preferred and the percentage of Series B
Preferred held by each such holder as of the Agreement Date. Except
as disclosed in such Schedule as of the Agreement Date, (w) no
Person (together with such Person’s Affiliates) directly
holds 10% or more of the Equity Interests in any Loan Party or its
respective Subsidiaries, (x) each of the Loan Parties and each of
their respective Subsidiaries owns, free and clear of all Liens,
and has the unencumbered right to vote, all outstanding Equity
Interests in each Person shown to be held by it on such Schedule,
(y) all of the issued and outstanding capital stock of each such
Person organized as a corporation is validly issued, fully paid and
nonassessable and (z) there are no outstanding subscriptions,
options, warrants, commitments, preemptive rights, proxies or
agreements of any kind (including, without limitation, any
investment advisory, stockholders’ or voting trust
agreements) for the issuance, sale, registration, disposition or
voting of, or outstanding securities convertible into, any shares
of capital stock of any class, or partnership or other ownership
interests of any type in, any such Person, except in the case of
this clause (z) for the investment advisory agreements, proxies and
other contractual arrangements between certain holders of
outstanding shares of capital stock of the Parent Guarantor and the
Person identified on such Schedule as of the Agreement Date as the
counterparty thereto or beneficiary thereof (such identified
Person, without regard to any subsequent update to such Schedule as
contemplated below, the “Schedule 7.2 Party”). Without
limitation of the foregoing, Part I of Schedule 7.2 sets forth the
Person Controlling the Schedule 7.2 Party as of the Agreement Date
(such Person, without regard to any subsequent update to such
Schedule as contemplated below, the “Schedule 7.2 Party Control
Person”). None of the Equity Interests of any
Subsidiary of the Loan Parties are certificated. Part I of Schedule 7.2 shall be updated
quarterly with each Compliance Certificate delivered pursuant to
Section 9.3
hereof.
(ii) As
of the Effective Date, Part II of Schedule 7.2 correctly sets
forth all Unconsolidated Affiliates of the Loan Parties, including
the correct legal name of such Person, the type of legal entity
which each such Person is, and all Equity Interests in such Person
held directly or indirectly by the applicable Loan Party. As of the
Effective Date, Part
III of Schedule
7.2 correctly sets forth the name and capital commitment and
unfunded capital commitment of each investor in the Loan Parties.
Schedule 7.2,
Parts II and
III shall be
updated quarterly with each Compliance Certificate delivered
pursuant to Section
9.3 hereof.
87
The
Borrower has the right and power, and has taken all necessary
action to authorize it, to borrow and obtain other extensions of
credit hereunder. Each Loan Party has the right and power, and has
taken all necessary action to authorize it, to execute, deliver and
perform each of the Loan Documents to which it is a party in
accordance with their respective terms and to consummate the
transactions contemplated hereby and thereby, including granting
Liens on its assets as required by the Loan Documents. The Loan
Documents to which any Loan Party is a party have been duly
executed and delivered by the duly authorized officers of such
Person and each is a legal, valid and binding obligation of such
Person enforceable against such Person in accordance with its
respective terms except as the same may be limited by bankruptcy,
insolvency, and other similar laws affecting the rights of
creditors generally and the availability of equitable remedies for
the enforcement of certain obligations (other than the payment of
principal) contained herein or therein and as may be limited by
equitable principles generally.
The
execution, delivery and performance of this Agreement and the other
Loan Documents to which any Loan Party is a party in accordance
with their respective terms (including the joint and several
liability for the Obligations of the other Loan Parties as set
forth herein) and the borrowings and other extensions of credit
hereunder, do not and will not, by the passage of time, the giving
of notice, or both, (a) require any Governmental Approval or
violate any Applicable Law (including all Environmental Laws and
ERISA) relating to any Loan Party; (b) conflict with, result in a
breach of, constitute a default under, or require any consent
under, the articles of incorporation, bylaws, partnership
agreement, trust indenture, operating agreement or other similar
organizational documents of any Loan Party, any Management
Agreement, or any indenture, agreement or other instrument to which
any Loan Party or any of their respective Subsidiaries is a party
or by which any of them or any of their respective properties may
be bound (including, in any event, the agreements and other
documents listed on Schedule 7.7), or conflict with
any judgment, order or decree that is binding upon any Loan Party
or any of their respective properties; or (c) result in or require
the creation or imposition of any Lien upon or with respect to any
property now owned or hereafter acquired by any Loan Party other
than Liens created under the Loan Documents. The exercise by the
Administrative Agent and/or the Lenders of their rights and
remedies under the Collateral Documents and other Loan Documents
(including the foreclosure of the Liens thereunder and the sale of
any of the Collateral to a third party) do not conflict with,
result in a breach of, constitute a default under, or require any
consent under, the organizational documents of any Loan Party or
any Affiliate thereof or any Management Agreement.
Each
Loan Party, each of their respective Subsidiaries and each
Borrowing Base Property is in compliance in all material respects
with each Governmental Approval applicable to it and in compliance
in all material respects with all other Applicable Laws (including,
without limitation, Environmental Laws) relating to each Loan Party
or such Subsidiary.
88
As of
the Agreement Date, Part
I of Schedule
7.6 is a complete and correct listing of all of the real
property owned or leased by any Loan Party and its Subsidiaries,
including the name and address of each Real Estate Asset owned by
each Loan Party, the full legal name of each Loan Party owning any
Real Estate Asset, the ownership interest (direct and/or indirect,
as applicable) of such Loan Party therein, and the Total Asset
Value of each such Real Estate Asset. Each such Person has good,
marketable and legal title to, or a valid leasehold interest in,
its respective assets. As of the Agreement Date, there are no Liens
against any assets of the Loan Parties or any of their respective
Subsidiaries, except for Permitted Liens. Part I of Schedule 7.6 shall be deemed to
have been updated with each Compliance Certificate delivered
pursuant to Section
9.3 hereof (and such Compliance Certificate shall attach an
updated Schedule
7.6, if applicable).
The
Loan Parties and their respective properties are insured with
financially sound and reputable insurance companies that are not
Affiliates of the Borrower, against such risks and in such amounts
as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where the
Loan Parties operate and in each case in compliance with the terms
of Section 8.5. A
true and complete listing of such insurance as of the Agreement
Date, including issuers, coverages and deductibles, is set forth on
Part II of
Schedule
7.6.
Without
limitation of Section
10.3, Schedule
7.7 is, as of the Agreement Date, a complete and correct
listing of all Indebtedness of the Loan Parties and their
respective Subsidiaries, including without limitation, Guarantees
of the Loan Parties and their respective Subsidiaries, and
indicating whether such Indebtedness is Secured Indebtedness (and
if so whether such Indebtedness is Non-Recourse Indebtedness or
Recourse Indebtedness) or Unsecured Indebtedness.
Schedule 7.8 is, as of the
Agreement Date, a true, correct and complete listing of all
Material Contracts. Each of the Loan Parties and each of their
respective Subsidiaries that is a party to any Material Contract
has performed and is in compliance in all material respects with
all of the terms of such Material Contract. No default or event of
default, or event or condition which with the giving of notice, the
lapse of time, or both, would constitute such a default or event of
default, exists with respect to any Material Contract. Without
limitation of the foregoing, the Loan Parties have furnished to the
Administrative Agent a true, correct and complete copy of each
Management Agreement to which any Loan Party is a
party.
As of
the Effective Date, there are no actions, suits, investigations or
proceedings pending (nor, to the knowledge of any Loan Party, are
there any actions, suits or proceedings threatened) against or in
any other way relating adversely to or affecting any Loan Party or
any of their respective Subsidiaries or any of their respective
properties in any court or before any arbitrator of any kind or
before or by any other Governmental Authority (each a
“Proceeding”) except as disclosed on Schedule 7.9. There are no
Proceedings (including any Proceedings disclosed on Schedule 7.9 and any
developments with respect thereto on or after the Effective Date)
which, either individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect. There are no strikes,
slow-downs, work stoppages or walkouts or other labor disputes in
progress nor, to the knowledge of any Loan Party or threatened
relating to any Loan Party or any of its Subsidiaries which could,
either individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
89
All
Federal, state and other material tax returns of each of the Loan
Parties and their respective Subsidiaries required by Applicable
Law to be filed have been duly filed, and all federal, state and
other Taxes (other than de minimis amounts) upon such Loan Parties
and such Subsidiaries and their respective properties, income,
profits and assets which are due and payable have been paid, except
any such nonpayment which is at the time permitted under
Section 8.6. As of
the Agreement Date, none of the United States income tax returns of
any Loan Party or any of its Subsidiaries is under audit. All
charges, accruals and reserves on the books of each Loan Party and
its Subsidiaries in respect of any taxes or other governmental
charges are in accordance with GAAP.
The
Borrower has furnished to the Administrative Agent and each Lender
copies of (a) the audited consolidated balance sheet of the Parent
Guarantor and its Subsidiaries for the fiscal year ended
December 31, 2018, and the related audited consolidated
statements of operations, cash flows and shareholders’ equity
of the Parent Guarantor and its Subsidiaries for the fiscal year
ended on such date, with the
unqualified opinion thereon of independent certified public
accountants of recognized national standing, and (b) the
management-prepared unaudited consolidated balance sheet of the
Parent Guarantor and its Subsidiaries as of June 30, 2019 and the
related consolidated statements of income and cash flow for the
period then ended, certified by a Responsible Officer, and (c)
projections of the Parent Guarantor and the other Loan Parties for
the 1-year period following the Effective Date. All consolidated
financial statements of Parent Guarantor and its Subsidiaries
heretofore or hereafter delivered to the Lenders were prepared in
accordance with GAAP in effect on the preparation date of such
statements and fairly present the consolidated financial condition
and operations of the Parent Guarantor and its Subsidiaries at such
date and the consolidated results of their operations for the
period then ended, subject, in the case of interim financial
statements, to normal and customary year-end adjustments and the
absence of footnotes. All projections and other forward-looking
statements prepared by or on behalf of the Parent Guarantor or any
of its Subsidiaries were prepared in good faith based on reasonable
assumptions and no Responsible Officer of the Borrower or any other
Loan Party has any reason to believe that such financial statements
or information are incorrect or misleading in any material respect
(it being recognized by the Administrative Agent and Lenders that
such projections as to future events are not to be viewed as facts
and that actual results during the period or periods covered by any
such projections may differ from the projected results).
Neither the Parent Guarantor nor any of its Subsidiaries has any
material contingent liabilities, liabilities, liabilities for
taxes, unusual or long-term commitments or unrealized or forward
anticipated losses from any unfavorable commitments that would be
required to be set forth in its financial statements or in the
notes thereto.
90
From
the preparation date of the most recent financial statements
delivered to the Lenders, there has been no material adverse change
in the business, assets, operations or condition (financial or
otherwise) of any Loan Party. Each of the Borrower and the Parent
Guarantor, individually, and the Loan Parties taken as a whole, is
Solvent, both before and after giving effect to the making of any
Loan or other Credit Event hereunder. No Loan Party is entering
into any of the transactions contemplated by the Loan Documents
with the actual intent to hinder, delay, or defraud any creditor.
The transaction evidenced by this Agreement and the other Loan
Documents is in the best interests of the Parent Guarantor, the
Borrower and each Subsidiary Guarantor. The direct and indirect
benefits to inure to Borrower and the Subsidiary Guarantors
pursuant to this Agreement and the other Loan Documents constitute
substantially more than “reasonably equivalent value”
(as such term is used in §548 of the Bankruptcy Code of 1978,
as amended) and “valuable consideration,” “fair
value,” and “fair consideration” (as such terms
are used in any applicable state fraudulent conveyance law), in
exchange for the benefits to be provided to the Borrower and the
Subsidiary Guarantors pursuant to this Agreement and the other Loan
Documents, and but for the willingness of each Subsidiary Guarantor
to guaranty the Obligations, the Borrower would be unable to obtain
the financing contemplated hereunder which financing will enable
the Borrower and its Subsidiaries to have available financing to
conduct and expand their business. The Borrower and its
Subsidiaries constitute a single integrated financial enterprise
and receive a benefit from the availability of credit under this
Agreement.
(a) Except
where such failure could not reasonably be expected to result in
liability in excess of $500,000, individually or in the aggregate,
(i) each Benefit Arrangement and Plan is in compliance in all
material respects with the applicable provisions of ERISA, the
Internal Revenue Code and other Applicable Laws; and (ii) each
Qualified Plan (A) has received a favorable determination letter
from the Internal Revenue Service, (B) has timely filed for a
favorable determination letter from the Internal Revenue Service
and such application is currently being processed by the Internal
Revenue Service, or (C) is maintained under a prototype plan and
may rely upon a favorable opinion letter issued by the Internal
Revenue Service with respect to such prototype plan, in each case
to the effect that the form of such Qualified Plan is qualified
under Section 401(a) of the Internal Revenue Code and the trust
related thereto has been determined by the Internal Revenue Service
to be exempt from federal income tax under Section 501(a) of the
Internal Revenue Code. To the best knowledge of the Borrower and
the other Loan Parties, nothing has occurred which would cause the
loss of its reliance on each Qualified Plan’s favorable
determination letter or opinion letter or that would prevent or
cause the loss or denial of the Qualified Plan’s tax
qualified status under Sections 401(a) and 501(a) of the Internal
Revenue Code.
(b) With
respect to any Benefit Arrangement that is a retiree welfare
benefit arrangement, all amounts have been accrued on the
applicable ERISA Group’s financial statements in accordance
with customary accounting standards. The unfunded benefit
liabilities of all Plans does not exceed in the aggregate $500,000,
as determined pursuant to the customary accounting standards
utilized by the accountant for the Plans.
91
(c) Except
where such failure could not reasonably be expected to result in
liability in excess of $500,000, individually or in the aggregate,
(i) no ERISA Event has occurred or is reasonably expected to occur;
(ii) except as could not reasonably be expected, either
individually or in the aggregate, to result in liability in excess
of $500,000, there are no pending, or to the best knowledge of the
Borrower and the other Loan Parties, threatened, claims, actions or
lawsuits or other action by any Governmental Authority, plan
participant or beneficiary with respect to a Benefit Arrangement or
Plan; (iii) there are no violations of the fiduciary responsibility
rules with respect to any Benefit Arrangement or Plan; and (iv) to
the best knowledge of the Borrower and the other Loan Parties after
due inquiry, no member of the ERISA Group has engaged in a
non-exempt “prohibited transaction,” as defined in
Section 406 of ERISA and Section 4975 of the Internal Revenue Code,
in connection with any
Benefit Arrangement or Plan, that would subject any member of the
ERISA Group to a tax on prohibited transactions imposed by Section
502(i) of ERISA or Section 4975 of the Internal Revenue
Code.
(d) None
of the assets of the Loan Parties or any of their respective
Subsidiaries, or any other member of the ERISA Group, constitutes
“plan assets” within the meaning of Section 3(42) of
ERISA, the Internal Revenue Code and the respective guidance
promulgated thereunder. Assuming that no Lender funds any amount
payable by it hereunder with “plan assets,” as that
term is defined in 29 C.F.R. 2510.3-101, the execution, delivery
and performance of this Agreement and the other Loan Documents, and
the extensions of credit and repayment of amounts hereunder, do not
and will not constitute “prohibited transactions” under
ERISA or the Internal Revenue Code.
(e) The
Borrower and any applicable member of the ERISA Group (i) has made
all contributions required to be made by it to any Multiemployer
Plan to which such Person is obligated to make contributions and
(ii) has not been assessed Withdrawal Liability under any
Multiemployer Plan in excess of $500,000.
No Loan
Party or any of its Subsidiaries is in default under its
partnership agreement, articles of incorporation, articles of
organization, bylaws, limited liability company agreement, or other
similar organizational documents. No event has occurred, which has
not been remedied, cured or waived, which, in any such case,
constitutes, or which with the passage of time, the giving of
notice, or both, would constitute, a default or event of default by
a Loan Party or any of its Subsidiaries under any agreement (other
than this Agreement) or judgment, decree or order to which a Loan
Party or any of its Subsidiaries is a party or by which any Loan
Party or any of its Subsidiaries or any of their respective
properties may be bound where such default or event of default
could, either individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. Without limitation of
the foregoing, no Default or Event of Default exists.
92
Each of
the Loan Parties and each of their respective Subsidiaries has
obtained all Governmental Approvals which are required under
Environmental Laws and is in compliance in all material respects
with the terms and conditions of such Governmental Approvals.
Except for any of the following matters that could not be
reasonably expected to result in liability in excess of $250,000
individually (with respect to any Borrowing Base Property) or
$500,000 in the aggregate, (a) no Loan Party has received notice
of, and neither is otherwise aware of, any past, present, or future
events, conditions, circumstances, activities, practices,
incidents, actions, or plans which, with respect to any Loan Party
or any of its Subsidiaries, are reasonably expected to interfere
with or prevent compliance or continued compliance with
Environmental Laws, or may give rise to any common-law or legal
liability, or otherwise form the basis of any claim, action,
demand, suit, proceeding, hearing, study, or investigation, based
on or related to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, or handling or the
emission, discharge, release or threatened release into the
environment, of any Hazardous Material; and (b) there is no civil,
criminal, or administrative action, suit, demand, claim, hearing,
notice, or demand letter, notice of violation, investigation, or
proceeding pending or, to any Loan Party’s knowledge after
due inquiry, threatened, against any Loan Party or any of its
Subsidiaries relating in any way to Environmental Laws. To the
knowledge of the Loan Parties, no Hazardous Materials generated at
or transported from any Real Estate Asset of the Loan Parties or
any of their respective Subsidiaries is or has been transported to,
or disposed of at, any location that is listed or proposed for listing on
the National Priority List, 40 C.F.R. Section 300 Appendix B, or
any analogous state or local priority list, or any other
location that is or has been the subject of a clean-up, removal or
remedial action pursuant to any Environmental Law, except to the
extent that such transportation or disposal could not reasonably be
expected to result in liability in excess of $500,000.
No Loan
Party or any of its Subsidiaries is (a) an “investment
company” or a company “controlled” by an
“investment company” within the meaning of the
Investment Company Act of 1940, as amended or (b) subject to any
other Applicable Law which purports to regulate or restrict its
ability to borrow money or to consummate the transactions
contemplated by this Agreement or to perform its obligations under
any Loan Document to which it is a party.
No Loan
Party 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” within the meaning of
Regulation U of the Board of Governors of the Federal Reserve
System.
Except
as permitted by Section
10.11, no Loan Party nor any of its Subsidiaries is a party
to any transaction with an Affiliate.
93
Each of
the Loan Parties and each of their respective Subsidiaries owns or
has the right to use, under valid license agreements or otherwise,
all material patents, licenses, franchises, trademarks, trademark
rights, service marks, service ▇▇▇▇ rights, trade names, trade name
rights, trade secrets and copyrights (collectively,
“Intellectual
Property”) necessary to the conduct of its businesses
as now conducted and as contemplated by the Loan Documents, without
known conflict with any patent, license, franchise, trademark,
trademark right, service ▇▇▇▇, service ▇▇▇▇ right, trade secret,
trade name, copyright or other proprietary right of any other
Person. Each of the Loan Parties and each of their respective
Subsidiaries have taken all such steps as they deem reasonably
necessary to protect their respective rights under and with respect
to such Intellectual Property. No material claim has been asserted
by any Person with respect to the use of any such Intellectual
Property by any Loan Party or any of its Subsidiaries, or
challenging or questioning the validity or effectiveness of any
such Intellectual Property. To the best knowledge of the Loan
Parties after due inquiry, the use of such Intellectual Property by
the Loan Parties and their respective Subsidiaries does not
infringe on the rights of any Person, subject to such infringements
as do not give rise to any liabilities on the part of any Loan
Party that could, either individually or in the aggregate,
reasonably be expected to have a Material Adverse
Effect.
Each of
the Loan Parties and their respective Subsidiaries are solely
engaged in the business of acquiring, developing, owning, and
operating income producing properties in the United States that are
leased to the U.S. Federal Government through either the General
Services Administration or other federal government agencies,
together with other business activities incidental thereto or
otherwise permitted under Section 10.5.
No
broker’s or finder’s fee, commission or similar
compensation will be payable with respect to the transactions
contemplated hereby. No other similar fees or commissions will be
payable by any Loan Party for any other services rendered to the
Parent Guarantor or any of its Subsidiaries ancillary to the
transactions contemplated hereby.
No
written information, report or other papers or data (excluding
financial projections and other forward looking statements)
furnished to the Administrative Agent or any Lender by or on behalf
of, or at the direction of, any Loan Party or any of its
Subsidiaries in connection with, pursuant to or relating in any way
to this Agreement, contained any untrue statement of a fact
material to the creditworthiness of any Loan Party or any of its
Subsidiaries or omitted to state a material fact necessary in order
to make such statements contained therein, in light of the
circumstances under which they were made, not misleading. All
financial statements (including in each case all related schedules
and notes) furnished to the Administrative Agent or any Lender by,
on behalf of, or at the direction of, any Loan Party or any of its
Subsidiaries in connection with, pursuant to or relating in any way
to this Agreement, present fairly the financial position of the
Persons involved as at the date thereof and the results of
operations for such periods in accordance with GAAP, consistently
applied throughout the periods involved (subject, as to interim
statements, to changes resulting from normal year-end audit
adjustments). All financial projections and other forward-looking
statements prepared by or on behalf of any Loan Party or any of its
Subsidiaries that have been or may hereafter be made available to
the Administrative Agent or any Lender were or will be prepared in
good faith based on reasonable assumptions. As of the Effective
Date, no fact is known to any Loan Party which has had, or may in
the future have (so far as any Loan Party can reasonably foresee),
a Material Adverse Effect which has not been set forth in the
financial statements referred to in Section 7.11 or in such
information, reports or other papers or data or otherwise disclosed
in writing to the Administrative Agent and the
Lenders.
94
(a) No
Loan Party, any of their respective Subsidiaries or any of their
respective Affiliates, and, to their knowledge, any directors or
officers of any thereof, nor any Person that has an interest
therein, (a) is a Sanctioned Person or a Sanctioned Entity, (b)
derives any of its funds, capital, assets or operating income from
investments in or transactions with any such Sanctioned Person or
Sanctioned Entity or in violation of Applicable Law, including
Sanctions or Anti-Terrorism Laws, or (c) is owned or controlled,
directly or indirectly, by any Sanctioned Person or Sanctioned Entity. None of the
proceeds of the Loans will be used (i) to finance any operations,
investments or activities in, or make any payments to, any
Sanctioned Person or Sanctioned Entity, (ii) in violation of or to
evade the prohibitions contained in any Sanctions, Anti-Terrorism
Laws or Anti-Corruption Laws, or (iii) in violation of any other
Applicable Law.
Schedule 2 contains a correct
and complete list of all Borrowing Base Properties as of the
Effective Date, including applicable ownership information. With
respect to each Borrowing Base Property from time to
time:
(a) no
Borrowing Base Property is located in an area that has been
identified by the Secretary of Housing and Urban Development as an
area having special flood hazards and in which flood insurance has
been made available under the National Flood Insurance Act of 1968
or the Flood Disaster Protection Act of 1973, as amended, or any
successor law or, if any portion of the buildings on such Borrowing
Base Properties are located within any such area, the Borrower or
applicable Subsidiary Guarantor has obtained and will maintain
through the Maturity Date the flood insurance prescribed in
Section 8.5 hereof
(including Schedule
8.5);
(b) each
of the Borrowing Base Properties and the present use and occupancy
thereof are in material compliance with all zoning ordinances
(without reliance upon adjoining or other properties), health, fire
and building codes, land use laws (including those regulating
parking) and Environmental Laws (except as disclosed on the
environmental assessments delivered to the Administrative Agent and
accepted by the Administrative Agent and the Requisite Lenders
pursuant to this Agreement or as otherwise permitted under the
definition of Eligible Property) and other Applicable
Laws;
(c) each
of the Borrowing Base Properties is served by all utilities
required for the current or contemplated use thereof;
(d) all
public roads and streets necessary for service of and access to
each of the Borrowing Base Properties for the current or
contemplated use thereof have been completed, and are open for use
by the public, or appropriate insured private easements are in
place;
(e) the
Borrower is not aware of any material latent or patent structural
or other significant deficiency of the Borrowing Base
Properties;
95
(f) each
of the Borrowing Base Properties is free of damage and waste that
would materially and adversely affect the value of such Borrowing
Base Property, is in good condition and repair subject to any items
set forth in any property condition report delivered to and
approved by the Administrative Agent and the Requisite Lenders or
as otherwise permitted under the definition of Eligible Property,
and to the Borrower’s knowledge, there is no deferred
maintenance other than ordinary wear and tear;
(g) each
of the Borrowing Base Properties is free from damage caused by fire
or other casualty that is not covered by proceeds of, or valid
claims under, the insurance required by Section 8.5;
(h) to
the Borrower’s knowledge, all liquid and solid waste
disposal, septic and sewer systems located on the Borrowing Base
Properties are (i) in a good and safe condition and repair and (ii)
in material compliance with all Applicable Laws with respect to
such systems;
(i) all
improvements on the Borrowing Base Properties lie within the
boundaries and building restrictions of the legal descriptions of
record of the Borrowing Base Properties, no improvements encroach
upon easements benefiting the Borrowing Base Properties other than
encroachments that do not materially adversely affect the use or
occupancy of the Borrowing Base Properties and, to the
Borrower’s knowledge, no improvements on adjoining properties
encroach upon the Borrowing Base Properties or upon easements
benefiting the Borrowing Base Properties other than encroachments
that do not materially adversely affect the use or occupancy of the
Borrowing Base Properties;
(j) (x)
there are no material delinquent property taxes, ground rents,
water charges, sewer rents, assessments, insurance premiums,
leasehold payments, or other outstanding charges affecting the
Borrowing Base Properties except to the extent such items are being
contested in good faith by appropriate proceedings and as to which
adequate reserves have been provided and there is no risk of loss,
forfeiture, or sale of any interest in the Borrowing Base
Properties during such proceedings; and (y) each of the Borrowing
Base Properties is subject to property taxes separately without
regard to any other property not included in the Borrowing Base
Properties;
(k) no condemnation
proceeding or eminent domain action is pending or threatened
against any of the Borrowing Base Properties;
(l) each
of the Borrowing Base Properties is not, nor is any direct or
indirect interest of the Borrower or any Subsidiary Guarantor in
any Borrowing Base Properties, subject to any Lien other (other
than Eligible Property Permitted Liens) or to any Negative Pledge
(other than the Liens and Negative Pledges created pursuant to the
Loan Documents to secure the obligations of the Loan
Parties);
(m) each
of the Mortgages creates a valid first priority Lien against the
applicable Borrowing Base Property.
96
The
Borrower has delivered to the Administrative Agent true copies of
the Leases and any amendments thereto relating to each Borrowing
Base Property included in Borrowing Base Availability as of the
applicable date of determination. An accurate and
complete (in all material respects) rent roll as of the date of
inclusion of each Borrowing Base Property in Borrowing Base
Availability with respect to all Leases of any portion of the
Borrowing Base Property has been provided to the Administrative
Agent. The Leases reflected on such rent roll constitute
as of the date thereof the sole agreements relating to leasing or
licensing of space at such Borrowing Base Property and in any
buildings relating thereto. Except as reflected in the
applicable rent roll, no tenant under any Lease is entitled to any
free rent, partial rent, rebate of rent payments, credit, offset or
deduction in rent, including, without limitation, lease support
payments, lease buy-outs or abatements or credits. The
sale or other transfer or disposition of any Borrowing Base
Property is not subject to any right of first refusal or other
option to purchase of the tenant under any Lease. No property,
other than the Borrowing Base Property which is the subject of the
applicable Lease with a Federal Agency, is necessary to comply with
the material requirements (including, without limitation, parking
requirements) contained in such Lease.
As of
the Effective Date, or any later date of delivery, the information
included in any Beneficial Ownership Certification is true and
correct in all respects as of the date delivered.
All
statements contained in any certificate, financial statement or
other instrument delivered by or on behalf of any Loan Party or any
of its Subsidiaries to the Administrative Agent or any Lender
pursuant to or in connection with this Agreement or any of the
other Loan Documents (including, but not limited to, any such
statement made in or in connection with any amendment thereto or
any statement contained in any certificate, financial statement or
other instrument delivered by or on behalf of any Loan Party or any
of its Subsidiaries prior to the Effective Date and delivered to
the Administrative Agent or any Lender in connection with closing
the transactions contemplated hereby) shall constitute
representations and warranties made by the Borrower under this
Agreement. All representations and warranties made under the Loan
Documents shall survive the effectiveness of this Agreement, the
execution and delivery of the Loan Documents and the making of the
Loans and issuance of any Letter of Credit.
ARTICLE VIII.
For so
long as this Agreement is in effect, each of the Loan Parties
jointly and severally shall, and shall cause each of its respective
Subsidiaries to, comply with the following covenants:
Except
as otherwise permitted under Section 10.7, the Loan Parties
shall, and shall cause each of their respective Subsidiaries to,
(a) preserve and maintain its respective existence, rights,
franchises, licenses and privileges in the jurisdiction of its
incorporation or formation and (b) qualify and remain qualified and
authorized to do business in each jurisdiction in which the
character of its properties or the nature of its business requires
such qualification and authorization except to the extent the
failure to satisfy the foregoing clause (b) could not, either
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect (but including, in any event, that each
Loan Party that owns a Borrowing Base Property shall be so
qualified and authorized in the jurisdiction in which such
Borrowing Base Property is located).
97
Section 8.2 Compliance with
Applicable Laws, Organizational Documents, Sanctions,
Anti-Corruption and Terrorism Laws, and Material
Contracts.
The
Loan Parties shall, and shall cause each of their respective
Subsidiaries to, comply in all material respects with (a) all
Applicable Laws applicable to any Loan Party and its respective
Subsidiaries or to any Borrowing Base Property, including the
obtaining of all Governmental Approvals as necessary, the violation
of which could reasonably be expected to result in a Material
Adverse Effect, (b) all Sanctions, Anti-Corruption Laws and
Anti-Terrorism Laws, including the obtaining of all Governmental
Approvals as necessary, (c) its respective partnership agreement,
certificate of incorporation or articles of organization, bylaws,
limited liability company agreement, or other similar
organizational documents and (d) all terms and conditions of all
Material Contracts to which it is a party to the extent a failure
to comply with such Material Contract could reasonably be expected
to result in a Material Adverse Effect, but including, in any
event, each Management Agreement to which any Loan Party is a
party.
In
addition to the requirements of any of the other Loan Documents,
the Loan Parties shall, and shall cause each of their respective
Subsidiaries to, (a) protect and preserve all of its respective
material properties necessary in the conduct of its business,
including, but not limited to, all Intellectual Property, and
maintain in good repair, working order and condition all tangible
properties, ordinary wear and tear excepted, and (b) make or cause
to be made all needed and appropriate repairs, restorations,
renewals, replacements and additions to such properties and the
improvements thereon in a good and workmanlike manner in accordance
with sound building practices, so that the business carried on in
connection therewith may be properly and advantageously conducted
in all material respects at all times. Each Borrowing Base Property
shall have a property manager reasonably satisfactory to the
Administrative Agent, it being understood and agreed that any
property manager party to an Approved Management Agreement is
satisfactory to the Administrative Agent.
The
Loan Parties shall, and shall cause each of their respective
Subsidiaries to, carry on, their respective businesses as described
in Section
7.20.
In
addition to the requirements of any of the other Loan Documents,
the Loan Parties shall, and shall cause each of their respective
Subsidiaries to, maintain insurance (on a replacement cost basis)
with financially sound and reputable insurance companies against
such risks and in such amounts as is customarily maintained by
Persons engaged in similar businesses as the Loan Parties, and by
Persons owning similar properties in localities where the Borrowing
Base Properties are located, or as may be required by Applicable
Law, and which satisfies in all material respects, the criteria set
forth on Schedule
8.5 hereto. The Loan Parties shall from time to time deliver
to the Administrative Agent upon its request a detailed list,
together with copies of all policies of the insurance then in
effect, stating the names of the insurance companies, the amounts
and rates of the insurance, the dates of the expiration thereof and
the properties and risks covered thereby.
98
Each of
the Loan Parties shall, and shall cause each of their respective
Subsidiaries to, pay and discharge when due (a) all federal, state,
and other Taxes (other than de minimis amounts) imposed upon it or
upon its income or profits or upon any properties belonging to it,
and (b) all lawful claims of materialmen, mechanics, carriers,
warehousemen and landlords for labor, materials, supplies and
rentals which, if unpaid, might become a Lien on any properties of
such Person; provided, however, that this Section shall not require
the payment or discharge of any such Tax or claim which is being
contested in good faith by appropriate proceedings, in each case in
a manner which operates to suspend the collection thereof or the
imposition of any Lien relating thereto and for which adequate
reserves have been established on the books of such Loan Party or
such Subsidiary, as applicable, in accordance with GAAP.
(a) The
Loan Parties shall, and shall cause each of their respective
Subsidiaries to, permit representatives or agents of the
Administrative Agent and, if such visit or inspection is arranged
by the Administrative Agent, of any Lender, from time to time after
reasonable prior notice if no Event of Default shall be in
existence, as often as may be reasonably requested, and only during
normal business hours and, subject to the last sentence of this
clause (a), at the reasonable expense of the Borrower, to: (i)
visit and inspect all properties of such Loan Party or such
Subsidiary to the extent any such right to visit or inspect is
within the control of such Person; (ii) inspect and make extracts
from their respective books and records, including but not limited
to management letters prepared by independent accountants; and
(iii) discuss with its officers, and its independent accountants,
its business, assets, operations or condition (financial or
otherwise). If requested by the Administrative Agent, any Loan
Party shall execute an authorization letter addressed to its
accountants authorizing the Administrative Agent or, if the same
has been arranged by the Administrative Agent, any Lender, to
discuss the financial affairs of the Loan Parties or any of their
respective Subsidiaries with its accountants (it being agreed that
the Borrower shall be invited to attend any discussions with its
accountants). Unless an Event of Default has occurred, the Borrower
shall not be required to pay for an inspection of a Borrowing Base
Property or books and records of the Loan Parties more often than
once per year.
(b) The
Loan Parties shall permit and cooperate with representatives or
agents of the Administrative Agent to obtain new or updated
Appraisals for any Borrowing Base Property at the request of the
Administrative Agent or the Requisite Lenders and at the expense of
the Borrower, in each case in form and substance reasonably
satisfactory to the Administrative Agent in accordance with the
Administrative Agent’s standard regulatory requirements, as
follows: (i) at any time that
Applicable Law, including the regulatory requirements of any Lender
generally applicable to first-mortgage real estate loans as
reasonably interpreted by such Lender, shall require an
Appraisal; (ii) in connection with the Borrower’s
exercise of the option to extend the Maturity Date pursuant to
Section 2.13; (iii)
at any time upon the occurrence and continuation of any Event of
Default, or (iv) at any time upon a change of tenant or otherwise
upon the reasonable determination of the Administrative Agent that
there has been a material adverse change with respect to any such
Borrowing Base Property. The expense
of such Appraisals and/or updates performed pursuant to this
Section
8.7(b) shall be borne by the
Borrower and payable to the Administrative Agent within fifteen
(15) days of written request, provided
that prior to the occurrence of an
Event of Default, the Borrower shall not be required to pay for an
Appraisal with respect to any particular Borrowing Base Property
more than once in any twelve-month period.
99
The
Borrowers shall use the proceeds of the Loans and the Letters of
Credit to repay certain Indebtedness existing as of the Effective
Date (as set forth on Schedule 6.1(a)), to acquire
additional Real Estate Assets throughout the United States, and for
general working capital purposes not in contravention of Applicable
Law or the Loan Documents, in each case in accordance with the
terms hereof. No part of the proceeds of any Loan or Letter of
Credit will be used (v) for the purpose of buying or carrying
“margin stock” within the meaning of Regulation U of
the Board of Governors of the Federal Reserve System or to extend
credit to others for the purpose of purchasing or carrying any such
margin stock; (w) to fund any operations in, finance any
investments or activities in, or make any payments to, a Sanctioned
Person or Sanctioned Entity or in violation of any Sanctions or
Anti-Terrorism Laws; (x) 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; (y) to fund any purchase of, or offer for, a
controlling portion of the Equity Interests of any Person, unless
the board of directors or similar governing body of such Person has
consented to such offer, or (z) to make any Investment other than
those Investments permitted pursuant to this
Agreement.
The
Loan Parties shall, and shall cause each of their respective
Subsidiaries to, comply in all material respects with all
Environmental Laws. If any Loan Party or any of its Subsidiaries
shall (a) receive written notice that any violation of any
Environmental Law may have been committed or is about to be
committed by such Person, (b) receive notice that any
administrative or judicial complaint or order has been filed
against any Loan Party or any of its Subsidiaries alleging
violations of any Environmental Law or requiring any Loan Party or
any of its Subsidiaries to take any action in connection with the
release of Hazardous Materials or (c) receive any written notice
from a Governmental Authority or private party alleging that any
Loan Party or any of its Subsidiaries may be liable or responsible
for costs associated with a response to or cleanup of a release of
Hazardous Materials or any damages caused thereby, and the matters
referred to in such notices, either individually or in the
aggregate, could reasonably be expected to result in liability in
excess of $250,000 (with respect to the Borrowing Base Properties)
or otherwise in excess of $500,000, the Borrower shall provide the
Administrative Agent with a copy of such notice promptly, and in
any event within 10 Business Days, after the receipt thereof by
such Loan Party or Subsidiary. The Loan Parties shall, and shall
cause each of their respective Subsidiaries to, take promptly all
actions necessary to prevent the imposition of any Liens on any of
their respective properties arising out of or related to any
Environmental Laws.
100
The
Loan Parties shall, and shall cause each of their respective
Subsidiaries to, maintain books and records pertaining to its
respective business operations in such detail, form and scope as is
consistent with good business practice and in accordance with
GAAP.
(a) Until
such time as all Obligations under this Agreement and the other
Loan Documents have been fully paid in cash and performed (other
than inchoate indemnity and expense reimbursement obligations that
by their terms survive termination of this Agreement), (i) the
Parent Guarantor and the Borrower shall maintain all deposit
accounts, all operating accounts, disbursements accounts, the
Reserve Accounts and any other reserve or escrow accounts (other
than the operating accounts of the Initial Borrowing Base
Properties and the Potential Borrowing Base Properties (if
applicable)), with the Administrative Agent and (ii) the Subsidiary
Guarantors shall maintain all deposit accounts, all operating
accounts, disbursements accounts, and any reserve or escrow
accounts (other than the operating accounts relating to the Initial
Borrowing Base Properties and the Potential Borrowing Base
Properties (if applicable)), with the Administrative Agent or a
Lender. At the request of the Administrative Agent (x) while any
Event of Default exists or (y) following the failure of the
Borrower or a Subsidiary Guarantor to timely pay its real estate
taxes or insurance premiums for a Borrowing Base Property, the
Borrower and the Subsidiary Guarantors (or in the case of clause
(y), the applicable Subsidiary Guarantor) shall establish and
deposit into the applicable Reserve Account cash in amounts
sufficient, subject to the Administrative Agent’s reasonable
approval, to cover annual real estate taxes and annual insurance
premiums for each of the Borrowing Base Properties (or in the case
of clause (y), the applicable Subsidiary Guarantor) existing at
such time and, if so established, the Borrower shall use the
proceeds maintained in such Reserve Accounts solely for the
applicable purposes thereof.
(b) With
respect to the operating accounts relating to the Initial Borrowing
Base Properties and the Potential Borrowing Base Properties (if
applicable), such accounts shall be permitted to be maintained with
the banking institutions as identified for such Initial Borrowing
Base Properties and the Potential Borrowing Base Properties on
Schedule 8.11
(each, an “Initial BB Property Bank”), provided that
(i) all amounts maintained in any such account in excess of $15,000
shall be swept by the applicable Initial BB Property Bank to the
Borrower’s Operating Account maintained with the
Administrative Agent no less frequently than monthly pursuant to
cash sweep arrangements satisfactory to the Administrative Agent,
(ii) the Borrower and the applicable Subsidiary Guarantors shall
have granted to the Administrative Agent a pledge of and security
interest in each such account pursuant to a Deposit Account Pledge
Agreement, and (iii) at the request of the Administrative Agent at
any time during the continuance of a Default or Event of Default
(which request may, in the Administrative Agent’s discretion,
be waived or modified after it is made), the Borrower, the
applicable Subsidiary Guarantor(s), and the applicable Initial BB
Property Bank shall deliver to the Administrative Agent a deposit
account control agreement in form and substance reasonably
satisfactory to the Administrative Agent with respect to any such
account. To the extent requested by the Administrative Agent from
time to time, the Borrower shall provide the Administrative Agent
with a report of the deposits in the operating accounts maintained
with the Initial BB Property Banks.
101
(c) As
collateral security for the prompt payment in full when due of the
Obligations, Borrower hereby grants to Administrative Agent, for
the ratable benefit of the Lenders as provided herein, a security
interest in the accounts described in the foregoing clauses (a) and
(b) and the balances from time to time therein, including the
investments and reinvestments therein provided in Section 11.5, subject in all
circumstances to the terms of the applicable Deposit Account Pledge
Agreement and the other Collateral Documents; provided, that so long as no
Default or Event of Default shall have occurred and be continuing,
the Borrower shall have unrestricted access to the Operating
Account and shall be permitted to use amounts on-hand in the
Reserve Accounts for the purposes stated herein.
The
Parent Guarantor shall at all times maintain its status as a REIT
and its election to be treated as a REIT under the Internal Revenue
Code. Without limitation of the immediately preceding sentence, and
notwithstanding any other provision of this Agreement or any other
Loan Document, the Parent Guarantor shall not engage in any
business other than (a) the business of acting as a REIT and
serving as the general partner of the Borrower and matters directly
relating thereto and (b) engaging in the other activities permitted
pursuant to this Section
8.12. The Parent Guarantor (x) shall not (A) own assets
other than its Equity Interest in the Borrower (other than (1) cash
and other assets of nominal value incidental to the Parent
Guarantor’s ownership of such Equity Interests and in
connection with the Parent Guarantor’s corporate overhead
costs, including, without limitation, expenditures related to its
maintenance as a public company; provided that proceeds of any
equity issuance will promptly (but in no event later than 3
Business Days) be contributed directly to the Borrower, and (2)
assets maintained on a temporary or pass-through basis (for no more
than 3 Business Days) that are held for subsequent payment of
permitted dividends and other permitted Restricted Payments, (B)
conduct any business other than activities associated with its
ownership of the Equity Interests in the Borrower, including,
without limitation, activities in its capacity as general partner
of the Borrower, and its existence as a public company or (C) have,
incur or Guarantee any liabilities other than (i) obligations
incurred in the ordinary course of business that are not in the
nature of Indebtedness for borrowed money, (ii) the Guaranty of the
Obligations and (iii) subject to the HCM Subordination Agreement,
the subordinated Guaranty of the HCM Mezzanine Debt, (y) shall
contribute to the Borrower all proceeds of Equity Issuances by the
Parent Guarantor, net of transaction costs, promptly (and in any
event within 3 Business Days of receipt thereof) and shall not
▇▇▇▇▇ ▇ ▇▇▇▇ to any Person in such proceeds and (z) shall continue
to be the sole general partner of the Borrower. The Parent
Guarantor shall not create, incur or suffer to exist any Lien on
its Equity Interests in the Borrower or its Equity Interests in its
other Subsidiaries (including, in any event on its, the
Borrower’s or any Subsidiary’s direct or indirect
Equity Interests in any Subsidiary owning any Borrowing Base
Property).
102
Each
Subsidiary that owns a Borrowing Base Property as of the Effective
Date shall execute and deliver to the Administrative Agent the
Guaranty. The Borrower shall cause each Wholly-Owned Subsidiary
that hereafter owns a Borrowing Base Property to execute and
deliver to the Administrative Agent a joinder to the Guaranty in
the form of the Joinder (the “Joinder”) attached as
Exhibit A to the Guaranty not later than the effective date for
such Borrowing Base Property to be included in the calculation of
Borrowing Base Availability and shall otherwise comply with the
provisions of Section 5.1(b). The Borrower covenants and agrees
that each such Subsidiary which it shall cause to execute the
Guaranty shall be fully authorized to do so by its supporting
organizational and authority documents and shall be in good
standing in its state of organization and shall have obtained any
necessary foreign qualifications required to conduct its business.
The delivery by Borrower to the Administrative Agent of any such
Joinder shall be deemed a representation and warranty by Borrower
that each Subsidiary which Borrower caused to execute the Guaranty
has been fully authorized to do so by its supporting organizational
and authority documents and is in good standing in its state of
organization and has obtained any necessary foreign qualifications
required to conduct its business.
(a) The
Loan Parties shall, at their sole cost and expense and upon request
of the Administrative Agent, execute and deliver or cause to be
executed and delivered, to the Administrative Agent such further
instruments, documents and certificates, and do and cause to be
done such further acts that may be reasonably necessary or
advisable in the reasonable opinion of the Administrative Agent to
carry out the provisions and purposes of this Agreement and the
other Loan Documents.
(b) Without
limitation of the foregoing, each of the Loan Parties shall,
promptly upon the request of the Administrative Agent or any
Lender, provide such further documentation or other information as
is reasonably requested for purposes of compliance with any
Applicable Laws pertaining to anti-money laundering or
“know-your-customer”, including, without limitation,
Applicable Laws relating to beneficial ownership and controlling
parties.
(a) Damages,
Restoration, and Insurance Proceeds. As long as no Event of
Default has occurred and is then continuing, all insurance proceeds
for losses at any Borrowing Base Property of less than $1,000,000
shall be adjusted with and payable to the Borrower or the
applicable Subsidiary Guarantor owning such Borrowing Base Property
and the Borrower shall, or shall cause the applicable Subsidiary
Guarantor to, repair and restore such Borrowing Base Property. In
case of loss, the Administrative Agent shall have the right (but
not the obligation) to participate in and reasonably approve the
settlement of any insurance claim in excess of $1,000,000, and with
respect to claims in excess of $1,000,000, the Administrative Agent
is authorized to collect and receive any insurance money for such
claims.
103
(i) So
long as no Event of Default has occurred and is then continuing,
and the applicable Borrowing Base Property continues to meet the
requirements of an “Eligible Property”, then the
Administrative Agent shall make such insurance proceeds available
to pay for such costs of repair and restoration on a monthly basis
during such repair and restoration. The Borrowing Base Property
shall be promptly so restored or rebuilt by the Borrower or the
applicable Subsidiary Guarantor Lien free and defect free and in an
architecturally and economically viable manner in material
compliance with all Applicable Laws and in substantially the same
quality and character as the Borrowing Base Property was prior to
such damage or destruction or to such other condition as the
Administrative Agent shall reasonably approve in writing. If the
conditions to the Administrative Agent’s obligation to make
such insurance proceeds available as set forth herein are not
satisfied, the Administrative Agent shall have the right, if so
directed by the Requisite Lenders, to apply such insurance proceeds
to payment of the Obligations, whether due or not, in accordance
with Section
2.5(b)(ii). Notwithstanding the foregoing, in the event a
Borrowing Base Property is released or ceases to be an Eligible
Property and/or a Borrowing Base Property in accordance with
Section 5.2, any
insurance proceeds held by Administrative Agent in respect of a
claim related to damage caused to such Borrowing Base Property
shall be (a) released to the Borrower (and Borrower shall be
entitled to all additional insurance proceeds), provided that the Borrower has
satisfied the requirements set forth in Section 5.2(a)(i)-(iv) in
connection with such released or disqualified Borrowing Base
Property or (b) if Borrower fails to comply with subsection (a) of
this sentence, as reasonably determined by Administrative Agent,
applied by Administrative Agent in reduction of the Obligations in
such order and amount as determined by Administrative Agent in its
sole discretion.
(ii) If
the Administrative Agent is holding any such insurance proceeds,
any request by the Borrower or the applicable Subsidiary Guarantor
owning such Borrowing Base Property for a disbursement by the
Administrative Agent of fire or casualty insurance proceeds or of
funds deposited by the Borrower or the applicable Subsidiary
Guarantor owning such Borrowing Base Property with the
Administrative Agent pursuant to this Section 8.15 shall be
conditioned upon the Borrower’s providing to the
Administrative Agent: updated title reports; satisfactory evidence,
as reasonably determined by the Administrative Agent, that the
Borrowing Base Property shall be so restored or rebuilt by the
Borrower or the applicable Subsidiary Guarantor Lien free and
defect free and in an architecturally and economically viable
manner in material compliance with all Applicable Laws and in
substantially the same quality and character as the Borrowing Base
Property was prior to such damage or destruction or to such other
condition as the Administrative Agent shall reasonably approve in
writing; satisfactory evidence of the estimated cost of completion
thereof; and with such architect’s certificates, waivers of
lien, contractors’ sworn statements and other evidence of
cost and of payments as the Administrative Agent may reasonably
require and approve. The undisbursed balance of insurance proceeds
shall at all times be sufficient to pay for the cost of completion
of the work free and clear of liens and if such proceeds are
insufficient, the Borrower or the applicable Subsidiary Guarantor
owning such Borrowing Base Property shall deposit the amount of
such deficiency with the Administrative Agent prior to the
disbursement by to the Borrower or the applicable Subsidiary
Guarantor owning such Borrowing Base Property of any insurance
proceeds.
104
(b) Condemnation
Proceeds. Both the Borrower and, pursuant to the applicable
Mortgage, the applicable Subsidiary Guarantor owning a Borrowing
Base Property, hereby assigns, transfers and sets over unto the
Administrative Agent for the benefit of the Lenders its entire
interest in the proceeds (the “Condemnation Proceeds”) of any
award or any claim for damages for any of such Borrowing Base
Property taken or damaged under the power of eminent domain or by
condemnation or any transaction in lieu of condemnation
(“Condemnation”), unless,
notwithstanding the foregoing, such taking, damage or condemnation
does not cause a material diminution in the value of such Borrowing
Base Property. Without limiting any of the provisions of this
Agreement with respect to Eligible Property requirements or
compliance with Borrowing Base Availability, so long as the portion
of such Borrowing Base Property taken in such Condemnation does not
exceed fifteen percent (15%) of the total square footage of the
Borrowing Base Property and the portion of the improvements taken
in such Condemnation does not exceed fifteen percent (15%) of the
total gross leasable area of the improvements thereon, the
Administrative Agent shall be obligated to make the Condemnation
Proceeds available to the Borrower or the applicable Subsidiary
Guarantor owning such Borrowing Base Property for the restoration
of the Real Estate Asset if the Borrower or such applicable
Subsidiary Guarantor satisfies all of the conditions set forth in
Section 8.15(a)
above hereof for disbursement of insurance proceeds to the extent
applicable, and the Borrowing Base Property shall be so restored or
rebuilt by the Borrower or the applicable Subsidiary Guarantor Lien
free and defect free and in an architecturally and economically
viable manner in material compliance with all Applicable Laws and
in substantially the same quality and character as such Borrowing
Base Property was prior to such damage or destruction or to such
other condition as the Administrative Agent shall reasonably
approve in writing. In all other cases the Administrative Agent
shall have the right, if so directed by the Requisite Lenders, to
apply the Condemnation Proceeds to payment of the Obligations,
whether due or not, in accordance with Section 2.5(b)(ii). If the
Condemnation Proceeds are required to be used as aforesaid to
reimburse the Borrower or such applicable Subsidiary Guarantor for
the cost of rebuilding or restoring buildings or improvements on
such Borrowing Base Property in accordance with this Section, or if
the Administrative Agent elects that the Condemnation Proceeds be
so used, and the buildings and other improvements shall be rebuilt
or restored in accordance with this Section, the Condemnation
Proceeds shall be paid out in the same manner as is provided in
Section 8.15(a)
above for the payment of insurance proceeds toward the cost of
rebuilding or restoration of such buildings and other improvements,
if applicable Any surplus which may remain out of the Condemnation
Proceeds after payment of such cost of rebuilding or restoration
shall, at the option of the Administrative Agent, be applied on
account of the indebtedness secured hereby or be paid to any other
party entitled thereto. Notwithstanding the foregoing, in the event
a Borrowing Base Property is released or ceases to be an Eligible
Property and/or a Borrowing Base Property in accordance with
Section 5.2, any
Condemnation Proceeds held by Administrative Agent in respect of a
partial or complete Condemnation of such Borrowing Base Property
shall be (a) released to the Borrower (and Borrower shall be
entitled to all additional Condemnation Proceeds), provided that
the Borrower has satisfied the requirements set forth in Section
5.2(a)(i)-(iv) with respect to such released or disqualified
Borrowing Base Property or (b) if Borrower fails to comply with
subsection (a) of this sentence, as reasonably determined by
Administrative Agent, applied by Administrative Agent in reduction
of the Obligations in such order and amount as determined by
Administrative Agent in its sole discretion.
Except
to the extent prohibited under Section 10.2, the Borrower
shall cause all of its Subsidiaries to promptly (but not less
frequently than once each fiscal quarter of the Borrower unless
otherwise approved by the Administrative Agent) distribute to the
Borrower (funded into the Operating Account), whether in the form
of dividends, distributions or otherwise, all profits, proceeds or
other income relating to or arising from such Subsidiaries’
use, operation, financing, refinancing, sale or other disposition
of their respective assets and properties after (a) the payment by
each such Subsidiary of its debt service and operating expenses for
such quarter and (b) the establishment of reasonable reserves for
the payment of expenses not paid on at least a quarterly basis and
capital expenditures to be made to such Subsidiary’s assets
and properties approved by such Subsidiary in the ordinary course
of business.
105
ARTICLE IX.
For so
long as this Agreement is in effect, the applicable Loan Party or
Loan Parties shall furnish to the Administrative Agent (for
distribution to the Lenders):
As soon
as available and in any event within forty-five (45) days after the
end of each of the first, second and third fiscal quarters of the
Borrower, the unaudited, consolidated balance sheet of the Parent
Guarantor and its Subsidiaries, and the unaudited consolidating
balance sheets of the Borrower and the Subsidiary Guarantors, in
each case as at the end of such period, and the related unaudited
consolidated statements of income, cash flows and
shareholders’ equity of the Parent Guarantor and its
Subsidiaries, and the unaudited consolidating statements of income
and cash flows of the Borrower and the Subsidiary Guarantors, in
each case for such period, setting forth in comparative form the
figures as of the end of and for the corresponding periods of the
previous fiscal year, all of which shall be certified by a
Responsible Officer of the Parent Guarantor, in his or her opinion,
to present fairly, in accordance with GAAP, the consolidated
financial position of the Parent Guarantor and its Subsidiaries and
the consolidating financial position of the Borrower and the
Subsidiary Guarantors as at the date thereof and the results of
operations for such period (subject to normal year-end audit
adjustments and the absence of footnotes).
As soon
as available and in any event within one hundred twenty (120) days
after the end of each fiscal year of the Borrower, the audited
consolidated balance sheet of the Parent Guarantor and its
Subsidiaries, and the unaudited consolidating balance sheets of the
Borrower and the Subsidiary Guarantors, as at the end of such
fiscal year and the related audited consolidated statements of
income, cash flows and shareholders’ equity of the Parent
Guarantor and its Subsidiaries, and the related unaudited
consolidating statements of income and cash flows of the Borrower
and the Subsidiary Guarantors for such fiscal year, setting forth
in comparative form the figures as at the end of and for the
previous fiscal year, all of which shall be (a) certified by a
Responsible Officer of the Parent Guarantor, in his or her opinion,
to present fairly, in accordance with GAAP, the consolidated
financial position of the Parent Guarantor and its Subsidiaries and
the consolidating financial position of the Borrower and the
Subsidiary Guarantors as at the date thereof and the results of
operations for such period and (b) in the case of the audited
financial statements, accompanied by the audit report thereon of an
independent accounting firm of national standing reasonably
acceptable to the Administrative Agent or other independent
certified public accountants acceptable to the Administrative Agent
(it being agreed that Cherry Bekaert LLP is acceptable to the
Administrative Agent), whose report shall be unqualified as to the
scope of such audit and not subject to any “going
concern” or like qualification or exception and who shall
have authorized the Parent Guarantor and the Borrower to deliver
such financial statements and report to the Administrative Agent
and the Lenders.
106
At the
time financial statements are furnished pursuant to Sections 9.1 and 9.2, a certificate
substantially in the form of Exhibit K (a
“Compliance
Certificate”) executed by a Responsible Officer of the
Parent Guarantor: (a) setting forth in reasonable detail as at the
end of such quarterly accounting period or fiscal year, as the case
may be, the calculations required to establish whether or not the
Loan Parties were in compliance with the covenants set forth in
Sections 10.1
through 10.4 and
(b) stating that, to the best of his or her knowledge, information
and belief after due inquiry, no Default or Event of Default
exists, or, if such is not the case, specifying such Default or
Event of Default and its nature, when it occurred, whether it is
continuing and the steps being taken by the applicable Loan Party
and its Subsidiaries with respect to such event, condition or
failure.
At the
time financial statements are furnished pursuant to Sections 9.1 and 9.2 and at such other times as
may be required pursuant to this Agreement, a certificate
substantially in the form of Exhibit L (a
“Borrowing Base
Certificate”) executed by a Responsible Officer of the
Borrower, setting forth in reasonable detail as at the end of such
quarterly accounting period or fiscal year, as the case may be, the
calculations required to establish Borrowing Base Availability as
of such date. The Borrower shall notify the Administrative Agent in
writing of any failure, promptly upon becoming aware of such
failure, of any Borrowing Base Property to continue to be an
Eligible Property or otherwise meet the conditions to be a
Borrowing Base Property.
(a) Management
Reports. Promptly
upon receipt thereof, copies of all management reports, if any,
submitted to the Parent Guarantor or the Borrower or its governing
board by its independent public accountants;
(b) Equity
Interest Holder Information. Promptly upon the mailing thereof to
the direct or indirect holders of Equity Interests of the Parent
Guarantor generally, copies of all financial statements, reports
and proxy statements so mailed;
(c) ERISA.
If any ERISA Event shall occur that individually, or together with
any other ERISA Event that has occurred, could reasonably be
expected to result in liability in excess of $500,000, a
certificate of a Responsible Officer of the Borrower setting forth
details as to such occurrence and the action, if any, which the
Borrower or applicable member of the ERISA Group is required or
proposes to take;
107
(d) Litigation.
(i) To the extent that any Loan Party or any of its Subsidiaries is
aware of the same, prompt notice of the commencement of any
material proceeding or investigation by or before any Governmental
Authority and any material action or proceeding in any court or
other tribunal or before any arbitrator against or in any other way
relating adversely to, or adversely affecting, any Loan Party or
any of its Subsidiaries or any of their respective properties,
assets or businesses, which could, either individually or in the
aggregate, be reasonably expected to result in liability in excess
of $500,000, (ii) prompt notice of pleadings filed in connection
with any Proceedings identified on Schedule 7.9 or of any
developments in any such Proceedings that could reasonably be
expected to be adverse to any Loan Party in any material respect,
and (iii) prompt notice of the receipt of notice that any United
States income tax returns of any Loan Party or any of its
Subsidiaries are being audited;
(e) Modification
of Organizational Documents. A copy of any material amendment,
modification or other supplement to the partnership agreement,
articles of organization or certificate of incorporation, bylaws,
operating agreement or other similar organizational documents of
any Loan Party within 5 Business Days after the effectiveness
thereof (such amendment, modification or supplement to be subject
to Section
10.10);
(f) Change
of Management or Financial Condition. Prompt notice (i) of any change in the
senior management of any Loan Party or any change in property
manager under, or termination or cancellation of, an Approved
Management Agreement; and (ii) of any change in the business,
assets, liabilities, financial condition or results of operations
of any Loan Party or any of its Subsidiaries which has had or could
reasonably be expected to have a Material Adverse
Effect;
(g) Default.
Notice of the occurrence of any of the following promptly upon any
Loan Party obtaining knowledge thereof: (i) any Default or Event of
Default, (ii) any default or event of default under the HCM
Mezzanine Debt Documents or other material notice under the HCM
Mezzanine Debt, (iii) any default or event of default under any
Property Management Agreement (including, in any event, any
development in connection with the termination of the Holmwood
Management Agreement and the termination fee payable thereunder),
or (iii) any claimed default or event of default by any Loan Party
under any other Material Contract to which any such Person is a
party or by which any such Person or any of its respective
properties may be bound;
(h) Judgments.
Prompt notice of any order, judgment or decree (i) in connection
with any Proceedings identified on Schedule 7.9 or (ii) in excess
of $500,000 having been entered against any Loan Party or any of
its Subsidiaries or any of their respective
properties;
(i) Notice
of Violations of Law.
Prompt notice if any Loan Party or any of its Subsidiaries shall
receive any notification from any Governmental Authority alleging a
violation of any Applicable Law by such Person or any inquiry
which, in either case, could reasonably be expected to have a
Material Adverse Effect;
108
(j) Budget.
As soon as available, and in any event no later than 45 days after
the end of each fiscal year of the Borrower (or such other time as
agreed by the Administrative Agent), an annual business plan and a
detailed consolidated budget (collectively, each, a
“Budget”) of the Parent
Guarantor for the following four consecutive fiscal quarters
(including projected statements of cash flow of the Parent
Guarantor and its Subsidiaries as of the end of the following
fiscal year and projected income and a description of the
underlying assumptions applicable thereto), and, as soon as
available, significant revisions, if any, of such budget, together
with projections with respect to such fiscal quarters
(collectively, the “Projections”), which
Projections shall in each case be accompanied by a certificate of a
Responsible Officer of the Parent Guarantor stating that such
Projections were prepared in good faith based on reasonable
estimates, information and assumptions and that such officer has no
reason to believe that such Projections are incorrect or misleading
in any material respect (it being recognized by the Administrative
Agent and Lenders that such projections as to future events are not
to be viewed as facts and that actual results during the period or
periods covered by any such projections may differ from the
projected results);
(k) Securities
Filings. Within five
Business Days after the filing thereof, copies of all, if any,
registration statements, reports on Forms 10-K, 10-Q and 8-K (or
their equivalents) and all other periodic reports which any Loan
Party or any Subsidiary shall file with the Securities and Exchange
Commission (or any Governmental Authority substituted therefor) or
any national securities exchange;
(l) Borrowing
Base Property Operating Information. Concurrently with the delivery of the
Compliance Certificate referred to in Section 9.3, the Borrower shall
deliver updated rent rolls, statements of net operating income and
operating statements for each Borrowing Base Property, and
aggregate and individual financial statements for each such
Borrowing Base Property, and such information may be attached to
the Compliance Certificate; and
(m) Other
Information. From
time to time and promptly upon each request, such data,
certificates, reports, statements, documents or further information
regarding the business, assets, liabilities, financial condition,
results of operations or business prospects of any Loan Party or
any of its Subsidiaries or any Affiliates, in each case as the
Administrative Agent or any Lender may reasonably
request.
Each
Loan Party hereby acknowledges that (a) the the Lead Arranger
and/or the Administrative Agent may, but shall not be obligated to,
make available to the Lenders and the L/C Issuer materials and/or
information provided by or on behalf of the Borrower hereunder
(collectively, “Loan
Party Information”) by posting the Loan Party
Information on Syndtrak, IntraLinks or a substantially similar
electronic transmission system (the “Information Platform”)
and (b) certain of the Lenders (each, a “Public Side Lender”) may
have personnel who do not wish to receive material non-public
information with respect to the Loan Parties or their Affiliates,
or the respective securities of any of the foregoing, and who may
be engaged in investment and other market-related activities with
respect to such Persons’ securities. Each Loan Party hereby
agrees that so long as any Loan Party is the issuer of any
outstanding equity or debt securities that are issued or registered
pursuant to a private offering or is actively contemplating issuing
any such securities it will use commercially reasonable efforts to
identify that portion of the Loan Party Information that may be
distributed to the Public Side Lenders. Each Loan Party further
agrees that that (i) all such Loan Party Information shall be
clearly and conspicuously marked “PUBLIC”; (ii) by
marking Loan Party Information “PUBLIC,” the Loan
Parties shall be deemed to have authorized the Lead Arranger, the
Administrative Agent, the L/C Issuer and the Lenders to treat such
Loan Party Information as not containing any material non-public
information with respect to the Loan Parties or their securities
for purposes of United States Federal and state securities laws;
(y) all Loan Party Information marked “PUBLIC” are
permitted to be made available through a portion of the Information
Platform designated “Public Side Information;” and (z)
the Lead Arranger and the Administrative Agent shall be entitled to
treat any Loan Party Information that is not marked
“PUBLIC” as being suitable only for posting on a
portion of the Information Platform not designated “Public
Side Information.”
109
Documents required
to be delivered pursuant to Article IX may be delivered
electronically; provided, that such documents shall be deemed to
have been delivered on the date on which such documents are
received by the Administrative Agent for posting on the
Borrower’s behalf on an internet or intranet website, if any,
to which each Lender and the Administrative Agent has access
(whether a commercial, third-party website (such as Intralinks or
SyndTrak) or a website sponsored by the Administrative Agent);
provided further that the Borrower shall deliver paper copies of
such documents to the Administrative Agent for distribution to any
Lender that requests the Borrower to deliver such paper copies
until a written request to cease delivering paper copies is given
by the Administrative Agent on behalf of such Lender.
The Administrative
Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to above, and in any
event shall have no responsibility to monitor compliance by the
Borrower with any such request for delivery, and each Lender shall
be solely responsible for requesting delivery to it or maintaining
its copies of such documents.
The USA
Patriot Act of 2001 (Public Law 107-56) and federal regulations
issued with respect thereto require all financial institutions to
obtain, verify and record certain information that identifies
individuals or business entities which open an
“account” with such financial institution.
Consequently, a Lender (for itself and/or as the Administrative
Agent for all Lenders hereunder) may from time-to-time request, and
each Loan Party shall provide to such Lender such Loan
Party’s (or Persons related to such Loan Party) name,
address, tax identification number and/or such other identification
information as shall be necessary for such Lender to comply with
federal law. An “account” for this purpose may include,
without limitation, a deposit account, cash management service, a
transaction or asset account, a credit account, a loan or other
extension of credit, and/or other financial services
product.
ARTICLE X.
For so
long as this Agreement is in effect, each Loan Party jointly and
severally shall comply with the following covenants:
(1)
Corporate Level
Financial Covenants:
The
Loan Parties shall not permit:
(a) Maximum
Total Leverage Ratio. The Total Leverage Ratio at any time
to exceed 0.60 to 1.00 (with compliance certified as of the last
day of each fiscal quarter for the Reference Period then ended in a
Compliance Certificate delivered pursuant to Section 9.3 and at each other
date of determination).
110
(b) Minimum
Fixed Charge Coverage Ratio. The Fixed Charge Coverage Ratio
at any time to be less than (i) 1.40 to 1.00 through the date that
is eighteen (18) months after the Effective Date and (ii) 1.50 to
1.00 at any time thereafter (with compliance certified as of the
last day of each fiscal quarter for the Reference Period then ended
in a Compliance Certificate delivered pursuant to Section 9.3 and at each other
date of determination).
(c) Minimum
Tangible Net Worth.
Tangible Net Worth at any time to be less than (i) $50,266,761,
plus (ii) eighty-five percent (85%) of the Net Proceeds of all
Equity Issuances (including capital calls) by the Parent Guarantor
or the Borrower after the Effective Date (with compliance certified
as of the last day of each fiscal quarter for the Reference Period
then ended in a Compliance Certificate delivered pursuant to
Section 9.3 and at
each other date of determination).
(d) Federal
Agency Gross Rental Revenue.
More than fifteen percent (15%) of the gross rental revenue from
all Real Estate Assets owned by the Borrower and its Subsidiaries
to originate from tenants that are not Federal
Agencies
(2)
Borrowing Base
Covenants:
The
Loan Parties shall not permit:
(e) Borrowing
Base Availability. The aggregate Revolving Credit Exposure
at any time to exceed Borrowing Base Availability (with compliance
certified as of the last day of each fiscal quarter (and, with
respect to Borrowing Base DSCR, for the Reference Period then
ended) in a Borrowing Base Certificate delivered pursuant to
Section 5.1,
Section 5.2,
Section 9.4, or as
otherwise may be required by this Agreement).
(f) Borrowing
Base Minimum Occupancy. The Occupancy Rate at any time to be
less than ninety percent (90%) (with compliance certified as of the
last day of each fiscal quarter in a Compliance Certificate
delivered pursuant to Section 9.3 and at each other
date of determination).
(g) Minimum
Average Remaining Lease Term. The Weighted Average Remaining
Lease Term to be less than six (6) years on the Borrowing Base
Properties (with compliance certified as of the last day of each
fiscal quarter in a Compliance Certificate delivered pursuant to
Section 9.3 and at
each other date of determination).
(h) Borrowing
Base Minimum Property Requirements. The Borrowing Base Properties included in the
calculation of Borrowing Base Availability (i) to consist of
less than ten (10) Borrowing Base Properties, or (ii) to have
an aggregate Borrowing Base Property Value of less than
$50,000.00.
(i) Borrowing
Base Maximum Concentration; Single Tenant Concentration.
(i) Commencing eighteen (18) months
following the Effective Date, (a) Property NOI from any single
Federal Agency tenant to at any time exceed twenty percent (20%) of
the total Property NOI from all of the Borrowing Base Properties at
such time or (b) any single Federal Agency to comprise more than
twenty percent (20%) of Total Asset Value; or (ii) Property NOI
from any Borrowing Base Property or from any group of Borrowing
Base Properties in any single State to at any time exceed thirty
percent (30%) of the total Property NOI from all of the Borrowing
Base Properties at such time.
111
The
Loan Parties shall not declare or make any Restricted Payment
except for the following:
(a) so
long as no Event of Default exists or would result therefrom, each
Subsidiary Guarantor shall be permitted to declare and pay
dividends on its Equity Interests and to make distributions with
respect thereto to the Borrower from time to time;
(b)
so long as no Default or Event of Default exists or would result
therefrom, the Borrower may declare or make cash distributions to
the Parent Guarantor and the Borrower’s (or its
Subsidiary’s) limited partners;
(c) the
Borrower and the Parent Guarantor shall be permitted to declare and
pay dividends quarterly on their respective Equity Interests, and
to make quarterly distributions with respect thereto from time to
time, provided,
however, that in no
event shall the Borrower or the Parent Guarantor: (i) for the
period commencing twelve (12) months after the Effective Date
through eighteen (18) months after the Effective Date, pay any such
dividends or make any such distributions on any Equity Interests if
such dividends and distributions, in the aggregate for any
applicable period (calculated on a cumulative basis for all
quarters elapsed from the twelve (12) month anniversary of the
Effective Date through the applicable date of determination,
annualized), would exceed 110% of Funds from Operations of the
Parent Guarantor and its Subsidiaries for such period, (ii) for the
period commencing nineteen (19) months until twenty-four (24)
months after the Effective Date, pay any such dividends or make any
such distributions on any Equity Interests if such dividends and
distributions, in the aggregate for any applicable period
(calculated on a cumulative basis for all quarters elapsed from the
twelve (12) month anniversary of the Effective Date through the
applicable date of determination, annualized) would exceed 95% of
Funds from Operations of the Parent Guarantor and its Subsidiaries
for such period, (iii) from and after the two-year anniversary of
the Effective Date, pay any such dividends or make any such
distributions on any Equity Interests if such dividends and
distributions, in the aggregate for any applicable fiscal period
(calculated on a cumulative basis for the then-current fiscal
quarter and the three immediately preceding fiscal quarters) would
exceed 95% of Funds from Operations of the Parent Guarantor and its
Subsidiaries for such period, (iv) for the period commencing on the
Effective Date through eighteen (18) months after the Effective
Date, pay any such dividends or make any such distributions if the
aggregate unrestricted and unencumbered Cash and Cash Equivalents
of the Borrower maintained in the Operating Account at the
Administrative Agent, both before and after giving effect to such
distribution or dividend, would be less than $2,500,000, or (v) pay
any such dividends or make any such distributions if any Default or
Event of Default exists or would result therefrom. Notwithstanding
the foregoing, if a Default or Event of Default exists or would
result therefrom, (x) the Borrower may declare and make cash
distributions to the Parent Guarantor and other holders of
partnership interests in the Borrower with respect to any fiscal
year to the extent (but only to the extent) necessary for the
Parent Guarantor to distribute, and the Parent Guarantor may so
distribute, an aggregate amount not to exceed the minimum amount
necessary for the Parent Guarantor to remain in compliance with the
first sentence of Section
8.12; provided that upon the
occurrence of any Default or Event of Default described in
Section 11.1(a),
11.1(b),
11.1(f) or
11.1(g) or the
acceleration of the maturity of any of the Obligations, the Parent
Guarantor and the Borrower may not make any distributions or
dividends under this Section 10.2 and (y) except to
the extent permitted pursuant to clause (x) above, the Loan Parties
shall not, and shall not permit any other Subsidiary of the
Borrower to, make any Restricted Payments to any Person other than
to the Borrower or any of its Wholly-Owned Subsidiaries (it being
agreed that, in accordance with Section 10.10, from the
Effective Date through the date that is eighteen (18) months after
the Effective Date, no Loan Party shall amend, supplement or
otherwise alter its Existing Dividend Policy in any manner that
would have the effect of increasing the dividends, distributions or
other payments paid or payable thereon);
112
(d) the
Borrower may make the payments on the HCM Mezzanine Debt that are
permitted to be paid pursuant to and in accordance with the terms
of the HCM Subordination Agreement;
(e) subject
to Section 11.1(l),
the issuance of common stock (or common partnership interests) upon
conversion of any Preferred Equity Interests;
(f) subject
to Section 11.1(l),
the issuance of shares in the Parent Guarantor in satisfaction of
the right of limited partners of the Borrower to redeem the
partnership interests held by such partners; and
(g) the
Loan Parties may pay management fees and other amounts described in
clause (d) of the definition of Restricted Payments, provided that (i) no Default or
Event of Default exists or would result therefrom and (ii) such
payment is not in contravention of any applicable Assignment and
Subordination of Management Agreement; provided, however, that,
subject to Section
11.1(l) and the other terms of this Agreement, the foregoing
proviso shall not prohibit the making of the HCA Termination
Payment through the issuance of common Equity Interests in the
Borrower or the Parent Guarantor to the Person(s) entitled
thereto.
The
Loan Parties shall not, and shall not permit any of their
respective Subsidiaries to, incur, assume, suffer to exist or otherwise
become obligated in respect of any Indebtedness, except for any of
the following so long as, both immediately prior to and immediately
after incurring, assuming or otherwise becoming obligated in
respect thereof, no Default or Event of Default is or would be in
existence, including, without limitation, a Default or Event of
Default resulting from a violation of any of the covenants set
forth in Section
10.1 on a pro forma basis:
(i) Indebtedness
under the Loan Documents;
(ii) Non-Recourse
Indebtedness of Subsidiaries of the Borrower (other than any other
Loan Party) on Real Estate Assets that are not Borrowing Base
Properties, so long as the only Liens securing such Non-Recourse
Indebtedness are on the specific Real Estate Assets being financed
with such Non-Recourse Indebtedness, and in any event, which will
be permitted only if the Loan Parties are in pro forma compliance
with the covenants set forth in Section 10.1 at the time such
Indebtedness is incurred and on a pro forma basis immediately after
giving effect thereto;
113
(iii) Indebtedness
of the Loan Parties or any of their respective Subsidiaries
constituting purchase money Indebtedness (including Capital Lease
Obligations) in connection with the financing of equipment;
provided, that (A)
such Indebtedness is incurred prior to or within 90 days after the
acquisition of the assets financed thereby and (B) the aggregate
principal amount of Indebtedness permitted by this clause (iii) shall not exceed
$500,000 at any time outstanding;
(iv) obligations
owed to any Person providing workers’ compensation, health,
disability or other employee benefits or property, casualty or
liability insurance, pursuant to reimbursement or indemnification
obligations to such Person, in each case incurred in the ordinary
course of business;
(v) Specified
Derivatives Obligations entered into with any Lender or an
Affiliate of any Lender, in accordance with Section
10.13;
(vi) unsecured
Recourse Indebtedness of the Borrower (but not any other Loan
Party) in an aggregate principal amount not to exceed
$500,000;
(vii) contingent
Indebtedness of the Borrower pursuant to customary non-recourse
carve-out guarantees with respect to Non-Recourse Exclusions under
Non-Recourse Indebtedness incurred by their respective Subsidiaries
(other than any Subsidiary Guarantor); and
(viii) the
HCM Mezzanine Debt, provided that (i) the principal amount of such
Indebtedness does not exceed $24,000,000 at any time outstanding
(inclusive of all accrued and unpaid interest thereon assuming such
interest had been capitalized), (ii) such Indebtedness is unsecured
at all times and (iii) such Indebtedness is at all times subject to
the HCM Subordination Agreement.
The
Loan Parties shall not, and shall not permit any other Subsidiary
to, make any Investment in or otherwise own the following items
which would cause the aggregate value of such holdings of the
Parent Guarantor and its Subsidiaries to exceed the applicable
limits set forth below:
(a) Investments
by the Borrower and its Subsidiaries in Unimproved Land shall at
all times be less than five percent (5.0%) of Total Asset
Value;
(b) Investments
by the Borrower and its Subsidiaries in Development Assets shall at
all times be less than five percent (5.0%) of Total Asset
Value;
114
(c) Investments
by the Parent Guarantor and its Subsidiaries in Mortgage Notes
shall at all times be less than ten percent (10%) of Total Asset
Value; and
(d) Investments
by the Borrower and its Subsidiaries in Unconsolidated Affiliates
and non-Wholly-Owned Subsidiaries shall at all times be less than
ten percent (10%) of Total Asset Value.
In
addition to the foregoing limitations, the aggregate book value of
all of the items subject to the limitations in the preceding
clauses (a) through
(d) shall not
exceed 25.0% of Total Asset Value at any time.
The
Loan Parties shall not, and shall not permit any other Subsidiary
to, directly or indirectly, acquire, make or purchase any
Investment, or permit any Investment of such Person to be
outstanding on and after the Agreement Date, other than the
following:
(a) Investments
in Cash Equivalents;
(b) Investments
to the extent permitted under Section 10.4 and otherwise in
compliance with this Agreement;
(c) Investments
in the form of Derivatives Contracts permitted by Section 10.13;
(d) the
acquisition of fee interests by the Borrower or any Subsidiary
Guarantor or other Subsidiaries (directly or indirectly through an
entity) in Real Estate Assets and investments incidental thereto;
and
(e) Investments
by the Parent Guarantor in the Borrower and Wholly-Owned
Subsidiaries, and Investments by the Borrower (directly or
indirectly) in Subsidiaries of the Borrower.
(a) The
Loan Parties shall not, and shall not permit any of their
respective Subsidiaries to, create, assume, or incur any Lien upon
any of their respective properties, assets, income or profits of
any character whether now owned or hereafter acquired, except for
any of the following if, both immediately prior to and immediately
after the creation, assumption or incurring of such Lien, no
Default or Event of Default is or would be in existence, including,
without limitation, a Default or Event of Default resulting from a
violation of any of the covenants contained in Section 10.1 on a pro forma
basis:
(i) Permitted
Liens;
115
(ii) Liens
securing Non-Recourse Indebtedness permitted under Section 10.3(ii) and
encumbering only the specific Real Estate Assets being financed by
such Indebtedness, none of which shall be Borrowing Base
Properties;
(iii) Liens
on fixed or capital assets acquired by the Borrower or any of its
Subsidiaries; provided, that (A) such Liens
secure Indebtedness permitted by Section 10.3(iii), (B) such
Liens and the Indebtedness secured thereby are incurred prior to or
within 90 days after such acquisition, (C) the Indebtedness secured
thereby does not exceed the cost of acquiring such fixed or capital
assets, and (D) such Liens shall not apply to any other property or
assets of any Loan Party; and
(b) The
Loan Parties shall not, and shall not permit any of their
respective Subsidiaries to, enter into, assume or otherwise be
bound by any Negative Pledge except for a Negative Pledge contained
in (i) an agreement (x) evidencing secured Non-Recourse
Indebtedness which such Loan Party or such Subsidiary may create,
incur, assume, or permit or suffer to exist under Section 10.3 (ii) or
(iii), which
Indebtedness is secured solely by a Lien permitted to exist under
the Loan Documents, and (y) which only prohibits the creation of
any other Lien on the property securing such Indebtedness as of the
date such agreement was entered into (and, except as provided in
clause (ii) below, which does not prohibit the creation of a Lien
on the Equity Interests of the Borrower or any Subsidiary
Guarantor); or (ii) an agreement relating to the sale of a
Subsidiary or assets pending such sale, provided that in any such
case the Negative Pledge applies only to the Subsidiary or the
assets that are the subject of such sale.
(c) The
Loan Parties shall not, and shall not permit any other Subsidiary
to, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction of any kind
(other than pursuant to any Loan Document) on the ability of any
Loan Party to: (i) pay dividends or make any other distribution on
any of such Loan Party’s capital stock or other equity
interests owned by the Borrower; (ii) pay any Indebtedness owed to
the Borrower; (iii) make loans or advances to the Borrower; or (iv)
transfer any of its property or assets to the
Borrower.
The
Loan Parties shall not, and shall not permit any of their
respective Subsidiaries to: (i) enter into any transaction of
merger or consolidation; (ii) liquidate, wind up or dissolve itself
(or suffer any liquidation or dissolution); or (iii) convey, sell,
lease, sublease, transfer (including by way of a Division) or
otherwise dispose of, in one transaction or a series of
transactions, all or substantially all of its business or assets
(including, in any event, any Borrowing Base Property unless such
Borrowing Base Property is released from the Loan Documents as
permitted pursuant to Section 5.2) whether now owned
or hereafter acquired; provided, however that (x) a
Person (other than a Loan Party) may merge with and into any Loan
Party so long as (i) such Loan Party is the survivor of such
merger, (ii) immediately prior to such merger, and immediately
thereafter and after giving effect thereto, no Default or Event of
Default has occurred and is continuing or would result therefrom,
and (iii) the Loan Parties shall have given the Administrative
Agent at least 10 Business Days’ prior written notice of such
merger, such notice to include a certification as to the matters
described in this proviso and (y) a Non-Loan Party Subsidiary may
enter into transactions described in clauses (i), (ii) and (iii)
above so long as, both before and after giving effect to such
transaction, (A) no Default or Event of Default has occurred and is
continuing, including under Sections 10.1 or 10.4 on a pro forma basis (and
the Borrower will provide the Administrative Agent with a pro forma
Compliance Certificate prior to the consummation thereof) and (B)
such transaction could not reasonably be expected to result in a
Material Adverse Effect. For the avoidance of doubt, the Borrower
shall at all times be a Wholly-Owned Subsidiary of the Parent
Guarantor and each Subsidiary Guarantor shall at all times be a
Wholly-Owned Subsidiary of the Borrower.
116
None of
the Loan Parties shall change its fiscal year from that in effect
as of the Agreement Date.
(a) No
Loan Party shall enter into any management contracts or property
management agreements or arrangements or agreements with agent or
brokers other than an Approved Management Agreement.
(b) No
Loan Party shall enter into any amendment or modification to (i)
any Material Contract which could reasonably be expected to be
adverse to the Lenders or otherwise to have a Material Adverse
Effect, or (ii) any Approved Management Agreement in a manner that
would materially increase the applicable Loan Party’s
monetary obligations, nor shall any Loan Party terminate or cancel
an Approved Management Agreement without the prior written consent
of the Administrative Agent (it being acknowledged that the Loan
Parties have elected not to renew the Holmwood Management Agreement
prior to the Effective Date).
Each
Loan Party shall not amend, supplement, restate or otherwise modify
its articles or certificate of incorporation, by-laws, operating
agreement, declaration of trust, partnership agreement or other
applicable organizational document in any material respect or in
any respect that could reasonably be expected to be adverse to the
Lenders or the Administrative Agent. Without limitation of the
foregoing, from the Effective Date through the date that is
eighteen (18) months after the Effective Date, no Loan Party shall
amend, supplement or otherwise alter its Existing Dividend Policies
in any manner that would have the effect of increasing the
dividends, distributions or other payments paid or payable thereon;
provided, that the
Borrower shall be permitted to make any payments on the HCM
Mezzanine Debt permitted by the HCM Subordination
Agreement.
No Loan
Party shall permit to exist or enter into, any transaction
(including the purchase, sale, lease or exchange of any property or
the rendering of any service) with any Affiliate (other than a Loan
Party), except (a) transactions that (i) are in the ordinary course
of business and (ii) are at prices and on terms and conditions not
less favorable to such Loan Party or such other Subsidiary than
could be obtained on an arm’s-length basis from unrelated
third parties, (b) transactions among Loan Parties not involving
any other Affiliate, (c) indemnification payments to directors and
officers of the Parent Guarantor or the Borrower provided that such
payments are covered by insurance (subject to a customary
deductible), and (d) the transactions disclosed on Schedule 10.11.
117
Each
Loan Party shall not, and shall not permit any of their respective
Subsidiaries to, permit any of its respective assets to become or
be deemed to be “plan assets” within the meaning of
Section 3(42) ERISA, the Internal Revenue Code and the respective
guidance promulgated thereunder. The Loan Parties shall not cause,
and shall not permit any other member of the ERISA Group to cause,
any ERISA Event that could reasonably be expected to result in
liability in excess of $1,000,000 individually or in the
aggregate.
The
Loan Parties shall not, and shall not permit any of their
respective Subsidiaries to, enter into or become obligated in
respect of, Derivatives Contracts other than Derivatives Contracts
(i) entered into by the Loan Parties or any of their respective
Subsidiaries in the ordinary course of business and which establish
an effective hedge in respect of liabilities, commitments or assets
held or reasonably anticipated by such Person and not for the
purpose of speculation or taking a “market view” and
(ii) that do not contain any provision exonerating the
non-defaulting party from its obligation to make payments on
outstanding transactions to the defaulting party.
No Loan
Party shall at any time be a Person with whom the Administrative
Agent and the Lenders are restricted from doing business under the
regulations of OFAC (including, Sanctioned Persons) or under any
Sanctions, Anti-Terrorism Law or Anti-Corruption Law, or other
governmental action and shall not engage in any dealings or
transactions or otherwise be associated with such
Persons.
ARTICLE XI.
Each of
the following shall constitute an Event of Default, whatever the
reason for such event and whether it shall be voluntary or
involuntary or be affected by operation of Applicable Law or
pursuant to any judgment or order of any Governmental
Authority:
(a) Default
in Payment of Principal. The Borrower shall fail to pay when
due (whether upon demand, at maturity, by reason of acceleration or
otherwise) the principal of any of the Loans, or any Reimbursement
Obligation.
(b) Default
in Payment of Interest and Other Payment
Obligations. The
Borrower shall fail to pay within five (5) days after the due date
thereof any interest on or fees applicable to any of the Loans or
any of the other payment Obligations owing by the Borrower under
this Agreement or any other Loan Document; or any other Loan Party
shall fail to pay within five (5) days after the due date thereof
any payment Obligation owing by such other Loan Party under any
Loan Document to which it is a party.
118
(c) Default
in Performance.
(i) Any Loan Party
shall fail to perform or observe any term, covenant, condition or
agreement contained in Section 8.1 (solely with
respect to legal existence), 8.2(b), 8.5, 8.7, 8.8, 8.11, 8.12 or 8.13 or in Article IX or in Article X; or (ii) any Loan
Party shall fail to perform or observe any term, covenant,
condition or agreement contained in this Agreement or any other
Loan Document to which it is a party and not otherwise mentioned in
this Section 11.1
and in the case of this clause (ii) only, such failure
shall continue for a period of 30 days.
(d) Misrepresentations.
Any written statement, certification, representation or warranty
made or deemed made by or on behalf of the Borrower or any other
Loan Party or their respective Subsidiaries under this Agreement or
under any other Loan Document, or any amendment hereto or thereto,
or in any financial statements (including in each case all related
schedules and notes) or related certifications furnished pursuant
hereto, or in any other writing or written statement at any time
furnished or made or deemed made by or on behalf of any Loan Party
or Subsidiary to the Administrative Agent or any Lender, shall at
any time prove to have been incorrect or misleading, in light of
the circumstances in which made or deemed made, in any material
respect when furnished or made or deemed made.
(e) Indebtedness
Cross-Default; Derivatives Contracts.
(i) With
respect to any Non-Recourse Indebtedness of any Loan Party or any
of its Subsidiaries having an individual or aggregate outstanding
principal amount in excess of the greater of five million dollars
($5,000,000), (A) any Loan Party or any of its Subsidiaries shall
fail to pay when due and payable, within any applicable grace or
cure period (not to exceed 30 days), the principal of, or interest
on, such Non-Recourse Indebtedness, (B) the maturity of such
Non-Recourse Indebtedness shall have been accelerated in accordance
with the provisions of any indenture, contract or instrument
evidencing, providing for the creation of or otherwise concerning
such Non-Recourse Indebtedness, or (C) such Non-Recourse
Indebtedness shall have been required to be prepaid, repurchased,
defeased or redeemed prior to the stated maturity
thereof;
(ii) (A)
with respect to any Recourse Indebtedness of any Loan Party or any
of its Subsidiaries (including, without limitation, any Derivatives
Contract), (w) any Loan Party or any of its Subsidiaries shall fail
to pay when due and payable, without regard to any applicable grace
or cure period, the principal of, or interest on, such Recourse
Indebtedness, (x) the maturity of such Recourse Indebtedness shall
have been accelerated in accordance with the provisions of any
indenture, contract or instrument evidencing, providing for the
creation of or otherwise concerning such Recourse Indebtedness, (y)
such Recourse Indebtedness shall have been required to be prepaid,
repurchased, defeased or redeemed prior to the stated maturity
thereof, or (z) any other event shall have occurred and be
continuing which permits any holder or holders of such Recourse
Indebtedness, any trustee or agent acting on behalf of such holder
or holders or any other Person, to accelerate the maturity of any
such Recourse Indebtedness or require any such Recourse
Indebtedness to be prepaid, repurchased, defeased or redeemed prior
to its stated maturity; or (B) any recourse claim is made against
any Loan Party under any one or more so-called non-recourse carve
out guarantees in an aggregate amount in excess of $1,000,000;
or
119
(iii) there
occurs an “Event of Default” under and as defined in
any Derivatives Contract as to which any Loan Party or any of its
Subsidiaries is a “Defaulting Party” (as defined
therein); or there occurs an “Early Termination Date”
(as defined therein) in respect of any Derivatives Contract as a
result of a “Termination Event” (as defined therein) as
to which any Loan Party or any of its Subsidiaries is an
“Affected Party” (as defined therein) and the
Derivatives Termination Value for which such Loan Party or
Subsidiary is responsible under such terminated Derivatives
Contract exceeds $1,000,000.
(f) Voluntary
Bankruptcy Proceeding. Any Loan Party, any of its respective
general partners or managers, or any of its respective
Subsidiaries, shall: (i) commence a voluntary case under the
Bankruptcy Code of 1978, as amended, or other federal bankruptcy
laws (as now or hereafter in effect); (ii) file a petition seeking
to take advantage of any other Applicable Laws, domestic or
foreign, relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or adjustment of debts; (iii) consent
to, or fail to contest in a timely and appropriate manner, any
petition filed against it in an involuntary case under such
bankruptcy laws or other Applicable Laws or consent to any
proceeding or action described in the immediately following
subsection; (iv) apply for or consent to, or fail to contest in a
timely and appropriate manner, the appointment of, or the
taking of possession by, a receiver, custodian, trustee, or
liquidator of itself or of a substantial part of its property,
domestic or foreign; (v) admit in writing its inability to pay its
debts as they become due; (vi) make a general assignment for the
benefit of creditors; (vii) make a conveyance fraudulent as to
creditors under any Applicable Law; or (viii) take any corporate or
partnership action for the purpose of effecting any of the
foregoing.
(g) Involuntary
Bankruptcy Proceeding. A case or other proceeding shall be
commenced against any Loan Party, any of its respective general
partners or any of its Subsidiaries in any court of competent
jurisdiction seeking: (i) relief under the Bankruptcy Code of 1978,
as amended, or other federal bankruptcy laws (as now or hereafter
in effect) or under any other Applicable Laws, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, winding-up, or
composition or adjustment of debts; or (ii) the appointment of a
trustee, receiver, custodian, liquidator or the like of such
Person, or of all or any substantial part of the assets, domestic
or foreign, of such Person, and such case or proceeding shall
continue undismissed or unstayed for a period of 60 consecutive
calendar days, or an order granting the remedy or other relief
requested in such case or proceeding against such Person
(including, but not limited to, an order for relief under such
Bankruptcy Code or such other federal bankruptcy laws) shall be
entered.
(h) Litigation;
Enforceability. Any Loan Party shall disavow, revoke or
terminate (or attempt to terminate) any Loan Document to which it
is a party or shall otherwise challenge or contest in any action,
suit or proceeding in any court or before any Governmental
Authority the validity or enforceability of this Agreement or any
other Loan Document, or this Agreement or any other Loan Document
shall cease to be in full force and effect (except as a result of
the express terms thereof).
120
(i) Judgment;
Order. (x) A final
judgment or order for the payment of money or for an injunction
shall be entered against any Loan Party or any of its Subsidiaries
by any court or other tribunal and (i) such judgment or order shall
continue for a period of 30 days without being paid, stayed or
dismissed through appellate proceedings prosecuted by such Loan
Party or such Subsidiary in good faith and (ii) either (A) the
amount of such judgment or order for which insurance has not been
acknowledged in writing by the applicable insurance carrier (or the
amount as to which the insurer has denied liability) exceeds,
individually or together with all other such outstanding judgments
or orders entered against the Loan Parties and their respective
Subsidiaries, $1,000,000 per occurrence or in any calendar year, or
(B) in the case of an injunction or other non-monetary judgment,
such injunction or judgment could reasonably be expected to have a
Material Adverse Effect; (y) an order or judgment for the
dissolution of the Parent Guarantor shall be entered by any court
or other tribunal, whether or not final; or (z) a final judgment or
order for the payment of money shall be entered against any prior
or current directors or officers of any Loan Party or any of its
Subsidiaries by any court or other tribunal for which such Loan
Party or Subsidiary has indemnification obligations therefor in
excess of $1,000,000 that are not fully covered by insurance, as
acknowledged in writing by the applicable insurance
carrier.
(j) Attachment.
A warrant, writ of attachment, execution or similar process shall
be issued against any property of any Loan Party or any of its
Subsidiaries which exceeds, individually or together with all other
such warrants, writs, executions and processes, $1,000,000, and
such warrant, writ, execution or process shall not be discharged,
vacated, stayed or bonded for a period of 30 days; provided,
however, that if a bond has been issued in favor of the claimant or
other Person obtaining such warrant, writ, execution or process,
the issuer of such bond shall execute a waiver or subordination
agreement in form and substance satisfactory to the Administrative
Agent pursuant to which the issuer of such bond subordinates its
right of reimbursement, contribution or subrogation to the
Obligations and waives or subordinates any Lien it may have on the
assets of any Loan Party.
(k) ERISA.
(i) Any
ERISA Event shall have occurred that results or could reasonably be
expected to result in liability to any member of the ERISA Group
aggregating in excess of $1,000,000; or
(ii) The
“unfunded benefit liabilities” of all Plans exceeds in
the aggregate $1,000,000, as determined pursuant to the customary
accounting standards utilized by the accountant for the
Plans.
(l) Change
of Control; Change of Management.
(i) The
Parent Guarantor shall cease to be the sole general partner of the
Borrower or shall cease to have the sole and exclusive power to
Control the Borrower and, indirectly, each Subsidiary Guarantor
(including, without limitation, the power to cause the sale or
other transfer, financing or refinancing, or encumbrance of assets
(including Equity Interests and Real Estate Assets) owned directly,
or indirectly through one or more Subsidiaries, of the
Borrower);
121
(ii) Any
“person” or “group” (as such terms are used
in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”)), other
than the Schedule 7.2 Party Control Person (provided that, in the event of
the death, disability or incapacity of the Schedule 7.2 Party
Control Person, the Borrower shall have one hundred twenty (120)
days to provide for a replacement Schedule 7.2 Party Control Person
who is reasonably satisfactory to the Administrative Agent), or any
other Person Controlled solely and exclusively by the Schedule 7.2
Party Control Person (including the Schedule 7.2 Party for so long
as such Control exists) (collectively, the “Schedule 7.2 Party Control
Group”), is or becomes the “beneficial
owner” (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that a “person” or
“group” will be deemed to have “beneficial
ownership” of all securities that such “person”
or “group” has the right to acquire, whether such right
is exercisable immediately or only after the passage of time),
directly or indirectly, of (x) more than 25% of the total voting
power of the then outstanding voting stock of the Parent Guarantor
or (y) a sufficient number of Equity Interests of all (or any)
classes of stock, partnership units or membership interests of the
then outstanding shares, partnership units or membership interests
of the Parent Guarantor or the Borrower that empowers such
“person” or “group” to either (A) elect a
majority of the members of the board of directors of the Parent
Guarantor or (B) otherwise Control the voting or management of the
Parent Guarantor, Holmwood, or any Loan Party; or any of the
foregoing is accomplished by contract or agreement;
(iii) (A)
the Borrower shall fail to own one hundred percent (100%) of the
Equity Interests of, and to Control, each Subsidiary Guarantor; (B)
the Parent Guarantor and Holmwood shall fail to collectively own
the greater of (x) at least as great a percentage of the Equity
Interests of the Borrower collectively held by them on the
Effective Date (other than as a result of the issuance of common
equity interests in the Borrower in connection with (I) the making
of payments permitted under Section 10.2(g) or (II) the acquisition
of Real Property Assets to the sellers of such properties) and (y)
sixty percent (60%) of the Equity Interests of the Borrower; (C)
the Parent Guarantor shall fail to own one hundred percent (100%)
of the Equity Interests of, and to Control, Holmwood; or (D) the
Schedule 7.2 Party Control Group shall cease to have the ability to
elect (or to direct the election of) a majority of the board of
directors of the Parent Guarantor;
(iv) ▇▇▇▇▇▇
▇. ▇▇▇▇ ▇▇ shall for any reason cease to retain the title of Chief
Executive Officer of the Parent Guarantor and to perform the
functions typically performed under such office or shall cease for
any reason to be actively and primarily involved in strategic
planning and decision-making for the Loan Parties; provided that if he shall, due
to death, disability or incapacity, cease to be active in the
management of the Loan Parties, the Borrower shall have one hundred
twenty (120) days to retain a replacement executive of comparable
experience who is reasonably satisfactory to the Administrative
Agent; or
122
(v) any
external manager of the Parent Guarantor, the Borrower or any of
their respective Subsidiaries, or any other Person other than the
Borrower or the Parent Guarantor, shall have the right or power to
cause the sale or other transfer, financing or refinancing, or
encumbrance, in whole or in part, of assets owned directly by the
Borrower or any Subsidiary Guarantor.
(m) HCM
Mezzanine Debt. (i)
Any default or event of default shall occur under the HCM Mezzanine
Debt Documents, (ii) the failure by any party (other than the
Administrative Agent or any Lender) to comply with any of the terms
of the HCM Subordination Agreement, including that any lender or
agent under the HCM Mezzanine Debt assigns or purports to assign
the all or any portion of the HCM Mezzanine Debt, or (iii) the HCM
Subordination Agreement or any of the terms thereof cease to be
valid and binding and in full force and effect.
(n) Collateral
Documents. Any
Collateral Document shall for any reason fail to create a valid and
perfected first priority security interest in any portion of the
Collateral purported to be covered thereby (unless solely as a
result of the Administrative Agent’s failure to take any
action necessary to be taken solely by it for any applicable Lien),
except as expressly permitted by the terms of any Loan
Document.
Upon
the occurrence of an Event of Default the following provisions
shall apply:
(a) Acceleration;
Termination of Facilities.
(i) Automatic.
Upon the occurrence of an Event of Default specified in
Section 11.1(f) or
11.1(g), (A)(i) the
principal of, and all accrued interest on, the Loans and the Notes
at the time outstanding, (ii) an amount equal to the Stated Amount
of all Letters of Credit outstanding as of the date of the
occurrence of such Event of Default for deposit into the L/C
Collateral Account pursuant to Section 11.5, and (iii) all of the
other Obligations (other than obligations in respect of Derivatives
Contracts), including, but not limited to, the other amounts owed
to the Lenders, the L/C Issuer, the Swingline Lender and the
Administrative Agent under this Agreement, the Notes or any of the
other Loan Documents shall become immediately and automatically due
and payable without presentment, demand, protest, or other notice
of any kind, all of which are expressly waived by the Borrower and
(B) all of the Commitments and the obligation of the Lenders to
make Loans, the Swingline Commitment, the obligation of the
Swingline Lender to make Swingline Loans, and the obligation of the
L/C Issuer to issue Letters of Credit hereunder, shall all
immediately and automatically terminate.
123
(ii) Optional.
If any other Event of Default shall exist, the Administrative Agent
may, and at the direction of the Requisite Lenders shall: (A)
declare (1) the principal of, and accrued interest on, the Loans
and the Notes at the time outstanding, (2) an amount equal to the
Stated Amount of all Letters of Credit outstanding as of the date
of the occurrence of such Event of Default for deposit into the L/C
Collateral Account pursuant to Section 11.5, and (3) all of
the other Obligations (other than obligations in respect of
Derivatives Contracts), including, but not limited to, the other
amounts owed to the Lenders and the Administrative Agent under this
Agreement, the Notes or any of the other Loan Documents to be
forthwith due and payable, whereupon the same shall immediately
become due and payable without presentment, demand, protest or
other notice of any kind, all of which are expressly waived by the
Borrower and (B) terminate the Commitments, the Swingline
Commitment, the obligation of the Lenders to make Loans hereunder
and the Swingline Lender to make Swingline Loans hereunder, and the
obligation of the L/C Issuer to issue Letters of Credit hereunder.
Moreover, notwithstanding anything contained in this Agreement to
the contrary, so long as any Default or Event of Default exists,
Lenders shall have no obligation to make any Loans to the Borrower
hereunder and the L/C Issuer shall have no obligation to issue
Letters of Credit hereunder.
(b) Loan
Documents. The
Requisite Lenders may direct the Administrative Agent to, and the
Administrative Agent if so directed shall, exercise any and all of
its rights under any and all of the other Loan Documents, including
the Collateral Documents.
(c) Applicable
Law. The Requisite
Lenders may direct the Administrative Agent to, and the
Administrative Agent if so directed shall, exercise all other
rights and remedies it may have under any Applicable
Law.
(d) Appointment
of Receiver. To the
extent permitted by Applicable Law, the Administrative Agent and
the Lenders shall be entitled to the appointment of a receiver for
the assets and properties of each Loan Party and its Subsidiaries,
without notice of any kind whatsoever and without regard to the
adequacy of any security for the Obligations or the solvency of any
party bound for its payment, to take possession of all or any
portion of the business operations of each Loan Party and its
Subsidiaries and to exercise such power as the court shall confer
upon such receiver.
(e) Specified
Derivatives Contract Remedies. Notwithstanding any other provision of
this Agreement or other Loan Document, no Specified Derivatives
Provider shall be prohibited by the Loan Documents from, with
prompt notice to the Administrative Agent, but without the approval
or consent of or other action by the Administrative Agent or the
Lenders, and without limitation of other remedies available to such
Specified Derivatives Provider under contract or Applicable Law,
undertaking any of the following: (i) declaring an event of
default, termination event or other similar event under any
Specified Derivatives Contract and to create an “Early
Termination Date” (as defined therein) in respect thereof,
(ii) determining net termination amounts in respect of any and all
Specified Derivatives Contracts in accordance with the terms
thereof, and to set off amounts among such contracts, and (iii)
prosecuting any legal action against any Loan Party to enforce or
collect net amounts owing to such Specified Derivatives Provider by
any such Person pursuant to any Specified Derivatives
Contract.
124
None of
the Administrative Agent, any Lender or any Specified Derivatives
Provider shall be under any obligation to marshal any assets in
favor of any Loan Party or any other party or against or in payment
of any or all of the Obligations or the Specified Derivatives
Obligations. To the extent that any Loan Party makes a payment or
payments to the Administrative Agent, any Lender or any Specified
Derivatives Provider, or the Administrative Agent, any Lender or
any Specified Derivatives Provider enforces any Lien or exercises
any of its rights of setoff, and such payment or payments or the
proceeds of such enforcement or setoff or any part thereof are
subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid to a trustee,
receiver or any other party under any bankruptcy law or other
Applicable Law, then to the extent of such recovery, the
Obligations or Specified Derivatives Obligations, or part thereof
originally intended to be satisfied, and all Liens, rights and
remedies therefor, shall be revived and continued in full force and
effect as if such payment had not been made or such enforcement or
setoff had not occurred.
If an
Event of Default shall exist and maturity of any of the Obligations
has been accelerated, or if an Event of Default specified in
Section 11.1(a)
and/or (b) shall
exist, any amounts received on account of the Obligations or the
Specified Derivatives Obligations shall be applied in the following
order and priority:
(a) that
portion of the Obligations constituting fees, indemnities, expenses
and other amounts (including fees, charges and disbursements of
counsel to the Administrative Agent) payable to the Administrative
Agent (in its capacity as administrative agent);
(b) that
portion of the Obligations constituting fees, indemnities, expenses
and other amounts (other than principal, interest and Letter of
Credit fees) payable to the Lenders and the L/C Issuer (in its
capacity as issuer of the Letters of Credit);
(c) payments
of interest on Swingline Loans;
(d) payments
of Letter of Credit fees and interest on all other Loans and
Reimbursement Obligations, pro rata in the amount then due each
Lender;
(e) payments
of principal of Swingline Loans;
(f) payments
of principal of all other Loans, Reimbursement Obligations and
other Letter of Credit Liabilities, and all Specified Derivatives
Obligations then owing, pro rata in the amount then due each
Lender, L/C Issuer and Specified Derivatives Provider; provided,
however, to the extent that any amounts available for distribution
pursuant to this subsection are attributable to the issued but
undrawn amount of an outstanding Letter of Credit, such amounts
shall be paid to the Administrative Agent for deposit into the L/C
Collateral Account for the benefit of the L/C Issuer and the
Lenders;
(g) payment
of all other Obligations and other amounts due and owing by the
Loan Parties under any of the Loan Documents, if any, to be applied
for the ratable benefit of the Lenders; and
(h) any
amount remaining after application as provided above, shall be paid
to the Borrower or whomever else may be legally entitled
thereto.
125
In no
event shall the Administrative Agent apply any amounts so received,
or any proceeds of Collateral, to the payment of Specified
Derivatives Obligations if and to the extent that, with respect to
the Loan Party making such payment, or owning such Collateral, such
Specified Derivatives Obligations constitute Excluded Swap
Obligations.
Notwithstanding the
foregoing, Specified Derivatives Obligations shall be excluded from
the application described above if the Administrative Agent has not
received written notice thereof, together with such supporting
documentation as the Administrative Agent may request, from the
applicable Specified Derivatives Provider. Each Specified
Derivatives Provider not a party to the Credit Agreement that has
given the notice contemplated by the preceding sentence shall, by
such notice, be deemed to have acknowledged and accepted the
appointment of the Administrative Agent pursuant to the terms of
Article XII hereof
for itself and its Affiliates as if a “Lender” party
hereto.
(a) As
collateral security for the prompt payment in full when due of all
Letter of Credit Liabilities and the other Obligations, the Loan
Parties hereby pledge and grant to the Administrative Agent, for
the ratable benefit of the L/C Issuer and the Lenders as provided
herein, a security interest in all of its right, title and interest
in and to the L/C Collateral Account and the balances from time to
time in the L/C Collateral Account (including the investments and
reinvestments therein provided for below). The balances from time
to time in the L/C Collateral Account shall not constitute payment
of any Letter of Credit Liabilities or other Obligations until
applied by the Administrative Agent as provided herein. Anything in
this Agreement to the contrary notwithstanding, funds held in the
L/C Collateral Account shall be subject to withdrawal only as
provided in this Section. With respect to such pledges and grants,
the Loan Parties will execute and deliver from time to time any
documents or instruments reasonably requested by Administrative
Agent in order to evidence or perfect such pledges and grants, with
all such documents to be in form and substance acceptable to the
Administrative Agent.
(b) If
a drawing pursuant to any Letter of Credit occurs on or prior to
the expiration date of such Letter of Credit, the Borrower, the L/C
Issuer, and the Lenders authorize the Administrative Agent to use
the monies deposited in the L/C Collateral Account and proceeds
thereof to make payment to the beneficiary with respect to such
drawing or the payee with respect to such presentment.
(c) Amounts
on deposit in the L/C Collateral Accounts shall be invested and
reinvested by the Administrative Agent in such Cash Equivalents as
the Administrative Agent shall determine in its sole discretion.
All such investments and reinvestments shall be held in the name of
and be under the sole dominion and control of the Administrative
Agent for the ratable benefit of the L/C Issuer and the Lenders.
The Administrative Agent shall exercise reasonable care in the
custody and preservation of any funds held in the Collateral
Accounts and shall be deemed to have exercised such care if such
funds are accorded treatment substantially equivalent to that which
the Administrative Agent accords other funds deposited with the
Administrative Agent, it being understood that the Administrative
Agent shall not have any responsibility for taking any necessary
steps to preserve rights against any parties with respect to any
funds held in the Collateral Accounts.
126
(d) If
an Event of Default exists, the Requisite Lenders may, in their
discretion, at any time and from time to time, instruct the
Administrative Agent to liquidate any such investments and
reinvestments and apply proceeds thereof to the Obligations in
accordance with Section
11.4.
(e) The
Borrower shall pay to the Administrative Agent from time to time
such fees as the Administrative Agent normally charges for similar
services in connection with the Administrative Agent’s
administration of the Collateral Accounts and investments and
reinvestments of funds therein.
If any
Loan Party shall fail to perform any covenant, duty or agreement
contained in any of the Loan Documents, the Administrative Agent
may, after notice to the Borrower, perform or attempt to perform
such covenant, duty or agreement on behalf of such Loan Party after
the expiration of any cure or grace periods set forth herein. In
such event, the Borrower shall, at the request of the
Administrative Agent, promptly pay any amount reasonably expended
by the Administrative Agent in such performance or attempted
performance to the Administrative Agent, together with interest
thereon at the applicable Post-Default Rate from the date of such
expenditure until paid. Notwithstanding the foregoing,
neither the Administrative Agent nor any
Lender shall have any liability or responsibility whatsoever for
the performance of any obligation of the Borrower under this
Agreement or any other Loan Document.
The
rights and remedies of the Administrative Agent and the Lenders
under this Agreement, each of the other Loan Documents shall be
cumulative and not exclusive of any rights or remedies which any of
them may otherwise have under Applicable Law. In exercising their
respective rights and remedies the Administrative Agent and the
Lenders may be selective and no failure or delay by the
Administrative Agent or any of the Lenders in exercising any right
shall operate as a waiver of it, nor shall any single or partial
exercise of any power or right preclude its other or further
exercise or the exercise of any other power or right.
ARTICLE XII.
Each
Lender (including for purposes of this Section 12, any Lender in its
capacity as L/C Issuer) hereby appoints and authorizes the
Administrative Agent to take such action as contractual
representative on such Lender’s behalf and to exercise such
powers under this Agreement and the other Loan Documents as are
specifically delegated to the Administrative Agent by the terms
hereof and thereof, together with such powers as are reasonably
incidental thereto.
127
The
Administrative Agent shall also act as “collateral
agent” under the Loan Documents, and each of the Lenders
hereby appoints and authorizes the Administrative Agent to act as
the agent of such Lender for purposes of acquiring, holding and
enforcing any and all Liens on Collateral granted by any of the
Loan Parties to secure any of the Obligations, together with such
powers and discretion as are reasonably incidental thereto. In this
connection, the Administrative Agent, as “collateral
agent” and any co-agents, sub-agents and attorneys-in-fact
appointed by the Administrative Agent for purposes of holding or
enforcing any Lien on the Collateral (or any portion thereof)
granted under the Collateral Documents, or for exercising any
rights and remedies thereunder at the direction of the
Administrative Agent, shall be entitled to the benefits of all
provisions of this Article
XII and Article
XIII (as though such co-agents, sub-agents and
attorneys-in-fact were the “collateral agent” under the
Loan Documents) as if set forth in full herein with respect
thereto.
Not in
limitation of the foregoing, each Lender authorizes and directs the
Administrative Agent to enter into the Loan Documents for the
benefit of the Lenders and the L/C Issuer. Each Lender hereby
agrees that, except as otherwise set forth herein, any action taken
by the Requisite Lenders in accordance with the provisions of this
Agreement or the Loan Documents, and the exercise by the Requisite
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 the L/C Issuer 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”, “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. At the
request of a Lender, the Administrative Agent will forward to such
Lender copies or, where appropriate, originals of the documents
delivered to the Administrative Agent pursuant to this Agreement or
the other Loan Documents. The Administrative Agent will also
furnish to any Lender, upon the request of such Lender, a copy of
any certificate or notice furnished to the Administrative Agent by
the Borrower, any other Loan Party or any other Affiliate thereof,
pursuant to this Agreement or any other Loan Document not already
delivered to such Lender pursuant to the terms of this Agreement or
any such other Loan Document; it being acknowledged that the
posting of any of the foregoing on SyndTrak or a successor
electronic platform hereunder shall be deemed delivery by the
Administrative Agent of such documents to the Lenders. As to any
matters not expressly provided for by the Loan Documents
(including, without limitation, enforcement or collection of any of
the Obligations), 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 instructions of the
Requisite Lenders (or all of the Lenders if explicitly required
under any other provision of this Agreement), and such instructions
shall be binding upon all Lenders and all holders of any of the
Obligations; provided, however, that, notwithstanding anything in
this Agreement to the contrary, the Administrative Agent shall not
be required to take any action which exposes the Administrative
Agent to personal liability or which is contrary to this Agreement
or any other Loan Document or Applicable Law. Not in limitation of
the foregoing, the Administrative Agent may exercise any right or
remedy it or the Lenders may have under any Loan Document upon the
occurrence of a Default or an Event of Default unless the Requisite
Lenders have directed the Administrative Agent otherwise. Without
limiting the foregoing, no Lender shall have any right of action
whatsoever against the Administrative Agent as a result of the
Administrative Agent acting or refraining from acting under this
Agreement or any of the other Loan Documents in accordance with the
instructions of the Requisite Lenders, or where applicable, all the
Lenders. For the avoidance of doubt, the posting of any of the
foregoing on SyndTrak or a successor electronic platform hereunder
shall be deemed delivery by the Administrative Agent of such
documents to the Lenders.
128
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 omitted to be taken by it or them under or in
connection with this Agreement or any other Loan Document, except
for its or their own gross negligence or willful misconduct as
determined by a court of competent jurisdiction in a final,
non-appealable judgment. Without limiting the generality of the
foregoing, the Administrative Agent: (a) may treat the payee of any
Note as the holder thereof until the Administrative Agent receives
written notice of the assignment or transfer thereof signed by such
payee and in form satisfactory to the Administrative Agent; (b) may
consult with legal counsel (including its own counsel or counsel
for 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; (c) makes no
warranty or representation to any Lender or any other Person and
shall not be responsible to any Lender or any other Person for any
statements, warranties or representations made by any Person in or
in connection with this Agreement or any other Loan Document; (d)
shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of
any 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 the Borrower or other Persons (except for
the delivery to it of any certificate or document specifically
required to be delivered to it pursuant to Section 6.1) or inspect the
property, books or records of the Borrower or any other Person; (e)
shall not 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; and (f) 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
may be by telephone, telecopy, 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. Unless set forth in writing to the contrary, the
making of its initial Loan by a Lender shall constitute a
certification by such Lender to the Administrative Agent and the
other Lenders that the Borrower and other Loan Parties have
satisfied the conditions precedent for initial Loans set forth in
Sections 6.1 and
6.2 that have not
previously been waived by the Requisite Lenders.
The
Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of a Default or Event of Default unless
the Administrative Agent has received notice from a Lender or a
Loan Party referring to this Agreement, describing with reasonable
specificity such Default or Event of Default and stating that such
notice is a “notice of default.” If any Lender
(excluding the Lender which is also serving as the Administrative
Agent) becomes aware of any Default or Event of Default, it shall
promptly send to the Administrative Agent such a “notice of
default.” Further, if the Administrative Agent receives such
a “notice of default”, the Administrative Agent shall
give prompt notice thereof to the Lenders.
129
The
Lender acting as Administrative Agent shall have the same rights
and powers under this Agreement and any other Loan Document as any
other Lender and may exercise the same as though it were not the
Administrative Agent; and the term “Lender” or
“Lenders” shall, unless otherwise expressly indicated,
include the Lender then acting as Administrative Agent in each case
in its individual capacity. Such Lender and its Affiliates may each
accept deposits from, maintain deposits or credit balances for,
invest in, lend money to, act as trustee under indentures of, serve
as financial advisor to, and generally engage in any kind of
business with, any Loan Party or any other Affiliate thereof as if
it were any other bank and without any duty to account therefor to
the Lenders. Further, such Lender and any Affiliate may accept fees
and other consideration from the Borrower for services in
connection with this Agreement, any Specified Derivatives Contract
or otherwise without having to account for the same to the Lenders.
The Lenders acknowledge that, pursuant to such activities, the
Lender acting as Administrative Agent or its Affiliates may receive
information regarding the Loan Parties, other Subsidiaries of the
Loan Parties and other Affiliates 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.
Each
Lender expressly acknowledges and agrees that neither the
Administrative Agent nor any of its officers, directors, employees,
agents, counsel, attorneys-in-fact or other Affiliates has made any
representations or warranties as to the financial condition,
operations, creditworthiness, solvency or other information
concerning the business or affairs of the Borrower, any other Loan
Party, any Subsidiary or any other Person to such Lender and that
no act by the Administrative Agent hereafter taken, including any
review of the affairs of the Borrower, any other Loan Party or any
other Subsidiary, shall be deemed to constitute any such
representation or warranty by the Administrative Agent to any
Lender. Each Lender acknowledges that it has made its own credit
and legal analysis and decision to enter into this Agreement and
the transactions contemplated hereby, independently and without
reliance upon the Administrative Agent, any other Lender or counsel
to the Administrative Agent, or any of their respective officers,
directors, employees and agents, and based on the financial
statements of the Borrower, the Subsidiaries or any other Affiliate
thereof, and inquiries of such Persons, its independent due
diligence of the business and affairs of the Borrower, the other
Loan Parties, the Subsidiaries and other Persons, its review of the
Loan Documents, the advice of its own counsel and such other
documents and information as it has deemed appropriate. Each Lender
also acknowledges that it will, independently and without reliance
upon the Administrative Agent, any other Lender or counsel to the
Administrative Agent or any of their respective officers,
directors, employees and agents, and based on such review, advice,
documents and information as it shall deem appropriate at the time,
continue to make its own decisions in taking or not taking action
under the Loan Documents. The Administrative Agent shall not be
required to keep itself informed as to the performance or
observance by the Borrower or any other Loan Party of the Loan
Documents or any other document referred to or provided for therein
or to inspect the properties or books of, or make any other
investigation of, the Borrower, any other Loan Party or any other
Person. Except for notices, reports and other documents and
information expressly required to be furnished to the Lenders by
the Administrative Agent under this Agreement or any of the other
Loan Documents, the Administrative Agent shall have no duty or
responsibility to provide any Lender with any credit or other
information concerning the business, operations, property,
financial and other condition or creditworthiness of the Borrower,
any other Loan Party or any other Affiliate thereof which may come
into possession of the Administrative Agent, or any of its
officers, directors, employees, agents, attorneys-in-fact or other
Affiliates. Each Lender acknowledges that the Administrative
Agent’s legal counsel in connection with the transactions
contemplated by this Agreement is only acting as counsel to the
Administrative Agent and is not acting as counsel to such
Lender.
130
Each
Lender agrees to indemnify the Administrative Agent (to the extent
not reimbursed by the Borrower and without limiting the obligation
of the Borrower to do so) pro rata in accordance with such
Lender’s respective Commitment Percentage, from and against
any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, reasonable out-of-pocket costs and
expenses, or disbursements of any kind or nature whatsoever which
may at any time be imposed on, incurred by, or asserted against the Administrative Agent
(in its capacity as
Administrative Agent but not as a Lender) in any way relating to or
arising out of the Loan Documents, any transaction contemplated
hereby or thereby or any action taken or omitted by the
Administrative Agent under the Loan Documents (collectively,
“Indemnifiable
Amounts”); provided, however, that no Lender shall be
liable for any portion of such Indemnifiable Amounts to the extent
resulting from the Administrative Agent’s gross negligence or
willful misconduct as determined by a court of competent
jurisdiction in a final, non-appealable judgment or if the
Administrative Agent fails to follow the written direction of the
Requisite Lenders (or all of the Lenders if expressly required
hereunder) unless such failure results from the Administrative
Agent following the advice of counsel to the Administrative Agent
of which advice the Lenders have received notice. Without limiting
the generality of the foregoing but subject to the preceding
proviso, each Lender agrees to reimburse the Administrative Agent
(to the extent not reimbursed by the Borrower and without limiting
the obligation of the Borrower to do so), promptly upon demand for
its ratable share of any expenses (including outside counsel fees
of the counsel(s) of the Administrative Agent’s own choosing)
incurred by the Administrative Agent in connection with the
preparation, negotiation, execution, administration, or enforcement
of, or legal advice with respect to the rights or responsibilities
of the parties under, the Loan Documents, any suit or action
brought by the Administrative Agent to enforce the terms of the
Loan Documents and/or collect any Obligations, any “lender
liability” suit or claim brought against the Administrative
Agent and/or the Lenders, and any claim or suit brought against the
Administrative Agent, and/or the Lenders arising under any
Environmental Laws. Such out-of-pocket expenses (including outside
counsel fees) shall be advanced by the Lenders on the request of
the Administrative Agent notwithstanding any claim or assertion
that the Administrative Agent is not entitled to indemnification
hereunder upon receipt of an undertaking by the Administrative
Agent that the Administrative Agent will reimburse the Lenders if
it is actually and finally determined by a court of competent
jurisdiction that the Administrative Agent is not so entitled to
indemnification. The agreements in this Section shall survive the
payment of the Loans and all other amounts payable hereunder or
under the other Loan Documents and the termination of this
Agreement. If the Borrower shall reimburse the Administrative Agent
for any Indemnifiable Amount following payment by any Lender to the
Administrative Agent in respect of such Indemnifiable Amount
pursuant to this Section, the Administrative Agent shall share such
reimbursement on a ratable basis with each Lender making any such
payment.
The
Administrative Agent may resign as Administrative Agent under the
Loan Documents at any time by giving 30 days’ prior written
notice thereof to the Lenders and the Borrower. Upon any such
resignation, the Requisite Lenders shall have the right to appoint
a successor Administrative Agent which appointment shall, provided
no Default or Event of Default exists, be subject to the
Borrower’s approval, which approval shall not be unreasonably
withheld or delayed (except that the Borrower shall, in all events,
be deemed to have approved each Lender and any of its Affiliates as
a successor Administrative Agent). If no successor Administrative
Agent shall have been so appointed in accordance with the
immediately preceding sentence, and shall have accepted such
appointment, within thirty (30) days after the resigning
Administrative Agent’s giving of notice of resignation (the
“Resignation Effective
Date”), then the resigning Administrative Agent may
(but shall not be obligated to), on behalf of the Lenders, appoint
a successor Administrative Agent, which shall be a Lender, if any
Lender shall be willing to serve, and otherwise shall be an
Eligible Assignee. Whether or not a successor has been appointed,
such resignation shall become effective in accordance with such
notice on the Resignation Effective Date. Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent (other
than any rights to indemnity payments owed to the retiring
Administrative Agent), and the retiring Administrative Agent shall
be discharged from all of its duties and obligations under the Loan
Documents. Such successor Administrative Agent shall issue letters
of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or shall make other
arrangements satisfactory to the current L/C Issuer, in either
case, to assume effectively the obligations of the current L/C
Issuer with respect to such Letters of Credit. After any
Administrative Agent’s resignation hereunder as
Administrative Agent, the provisions of this Article XII and Sections 13.2
and 13.9 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective related
Indemnified Parties in respect of any actions taken or omitted to
be taken by any of them while the retiring Administrative Agent was
Administrative Agent under the Loan Documents. Notwithstanding
anything contained herein to the contrary, the Administrative Agent
may assign its rights and duties under the Loan Documents to any of
its Affiliates by giving the Borrower and each Lender prior written
notice.
131
Section
12.9 Titled Agent.
The
Titled Agent, in such respective capacity, assumes no
responsibility or obligation hereunder, including, without
limitation, for servicing, enforcement or collection of any of the
Loans, or for any duties as an agent hereunder for the Lenders. The
titles of “Lead Arranger” and “Bookrunner”
are solely honorific and imply no fiduciary responsibility on the
part of the Titled Agent to the Administrative Agent, the Borrower
or any Lender and the use of such title does not impose on the
Titled Agent any duties or obligations greater than those of any
other Lender or entitle the Titled Agent to any rights other than
those to which any other Lender is entitled.
Each of
the Lenders irrevocably authorizes the Administrative Agent, at its
option and in its discretion, to take any of the following
actions:
(a) without
the necessity of any notice to or further consent from any Lender,
from time to time prior to an Event of Default, to take any action
with respect to any Collateral or Loan Documents which may be
necessary to perfect and maintain perfected the Liens upon the
Collateral granted pursuant to any of the Loan
Documents;
(b) to
release any Lien on any property granted to or held by the
Administrative Agent under any Loan Document (i) upon termination
of the Commitments and payment in full of all Obligations (other
than contingent indemnification obligations) and the expiration or
termination of all Letters of Credit, (ii) as permitted by the
terms of this Agreement, including with respect to any such release
of a Lien on the Real Estate Assets of the Borrower or a Subsidiary
Guarantor, or (iii) if approved, authorized or ratified in writing
in accordance with Section
13.6; and
(c) 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, to the extent such holder is permitted by
Section 10.3 to
have a more senior Lien.
(d) The
Administrative Agent may make, and shall be reimbursed by the
Lenders to the extent not reimbursed by the Borrower for,
protective advances during any one calendar year with respect to
each Borrowing Base Property up to the sum of (i) amounts expended
to pay real estate taxes, assessments and governmental charges or
levies imposed upon such Borrowing Base Property; (ii) amounts
expended to pay insurance premiums for policies of insurance
related to such Borrowing Base Property; and (iii) $1,000,000.00.
Protective advances in excess of said sum during any calendar year
for any Borrowing Base Property shall require the consent of the
Requisite Lenders. The Borrower agrees to pay on demand all such
protective advances.
132
Upon
request by the Administrative Agent at any time, the Requisite
Lenders will confirm in writing the Administrative Agent’s
authority to release or subordinate its interest in particular
types or items of property pursuant to this Section 12.10. In each case as
specified in this Section
12.10, the Administrative Agent will, at the
Borrower’s expense, execute and deliver to the applicable
Loan Party such documents as such Loan Party may reasonably request
to evidence the release of such item of Collateral from the
assignment and security interest granted under the Collateral
Documents or to subordinate its interest in such item, in each case
in accordance with the terms of the Loan Documents and this
Section 12.10. The
provisions of this Section
12.10 are subject to the limitations on the authority to
release or replace Collateral set forth in Section 5.2 or any
Mortgage.
No
Specified Derivatives Provider that obtains the benefits of
Section 11.4, the
Guaranty or any Collateral by virtue of the provisions hereof or of
the Guaranty or any Collateral Document shall have any right to
notice of any action or to consent to, direct or object to any
action hereunder or under any other Loan Document or otherwise in
respect of the Collateral (including the release or impairment of
any Collateral) other than in its capacity as a Lender and, in such
case, only to the extent expressly provided in the Loan Documents.
Notwithstanding any other provision of this Article XII to the contrary,
the Administrative Agent shall not be required to verify the
payment of, or that other satisfactory arrangements have been made
with respect to, Specified Derivatives Obligations unless the
Administrative Agent has received written notice of such Specified
Derivatives Obligations, together with such supporting
documentation as the Administrative Agent may request, from the
applicable Specified Derivatives Provider. The Administrative Agent
shall not be required to verify the payment of, or that other
satisfactory arrangements have been made with respect to, Specified
Derivatives Obligations as a condition to releasing Liens pursuant
to Section
12.10(b).
(a) Each
Lender (x) represents and warrants, as of the date such Person
became a Lender party hereto, to, and (y) covenants, from the date
such Person became a Lender party hereto to the date such Person
ceases being a Lender party hereto, for the benefit of, the
Administrative Agent, the Titled Agent and their respective
Affiliates, and not, for the avoidance of doubt, to or for the
benefit of any Loan Party, that at least one of the following is
and will be true:
133
(i)
such Lender is not using “plan assets” (within the
meaning of Section 3(42) of ERISA or otherwise) of one or more
Benefit Plans with respect to such Lender’s entrance into,
participation in, administration of and performance of the Loans,
the Letters of Credit or the Commitments,
(ii)
the transaction exemption set forth in one or more PTEs, such as
PTE 84-14 (a class exemption for certain transactions determined by
independent qualified professional asset managers), PTE 95-60 (a
class exemption for certain transactions involving insurance
company general accounts), PTE 90-1 (a class exemption for certain
transactions involving insurance company pooled separate accounts),
PTE 91-38 (a class exemption for certain transactions involving
bank collective investment funds) or PTE 96-23 (a class exemption
for certain transactions determined by in-house asset managers), is
applicable with respect to such Lender’s entrance into,
participation in, administration of and performance of the Loans,
the Letters of Credit, the Commitments and this
Agreement,
(iii)
(A) such Lender is an investment fund managed by a “Qualified
Professional Asset Manager” (within the meaning of Part VI of
PTE 84-14), (B) such Qualified Professional Asset Manager made the
investment decision on behalf of such Lender to enter into,
participate in, administer and perform the 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 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 Lender’s entrance into, participation
in, administration of and performance of the Loans, the Letters of
Credit, the Commitments and this Agreement; or
(iv) such
other representation, warranty and covenant as may be agreed in
writing between the Administrative Agent, in its sole discretion,
and such Lender.
(b)
In addition, unless either (1) sub-clause (i) in the immediately
preceding clause (a) is true with respect to a Lender or (2) a
Lender has provided another representation, warranty and covenant
in accordance with sub-clause (iv) in the immediately preceding
clause (a), such Lender further (x) represents and warrants, as of
the date such Person became a Lender party hereto, to, and (y)
covenants, from the date such Person became a Lender party hereto
to the date such Person ceases being a Lender party hereto, for the
benefit of, the Administrative Agent, each Titled Agent and their
respective Affiliates, and not, for the avoidance of doubt, to or
for the benefit of the Borrower or any other Loan Party, that none
of the Administrative Agent, any Titled Agent and their respective
Affiliates is a fiduciary with respect to the assets of such Lender
involved in such Lender’s entrance into, participation in,
administration of and performance of the Loans, the Letters of
Credit, the Commitments and this Agreement (including in connection
with the reservation or exercise of any rights by the
Administrative Agent under this Agreement, any Loan Document or any
documents related hereto or thereto).
134
ARTICLE XIII.
Unless
otherwise provided herein, communications provided for hereunder
shall be in writing and shall be mailed by certified mail return
receipt requested, by electronic mail with evidence of delivery or
hand delivered with evidence of delivery as follows:
|
If to a
Loan Party:
|
▇▇▇ ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇-▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Email:
▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
|
|
with a
copy to:
|
▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ PLLC
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇ ▇▇▇▇▇▇
Email:
▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
|
|
If to
the Administrative Agent:
|
KeyBank
National Association
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇
Mailcode:
GA-03-40-0900
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇ ▇▇▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Email:
▇▇▇▇_▇_▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
with a
copy to:
KeyBank
National Association
OH-01-27-0844
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇ ▇▇▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇_▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
|
|
If to
the Administrative Agent under Article II:
|
KeyBank
National Association
Mailcode:
GA-03-40-0900
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇ ▇▇▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Email:
▇▇▇▇_▇_▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
|
|
If to a
Lender:
|
To such
Lender’s address or telecopy number, as applicable, set forth
in its Administrative Questionnaire;
|
135
or, as
to each party at such other address as shall be designated by such
party in a written notice to the other parties delivered in
compliance with this Section; provided, a Lender shall only
be required to give notice of any such other address to the
Administrative Agent and the Borrower. All such notices
and other communications shall be effective (i) if mailed by
certified mail return receipt requested, when received; (ii) if by
electronic mail, when received; or (iii) if hand delivered or sent
by overnight courier, when delivered with proof of delivery, and as
to the Loan Parties, shall be effective upon receipt or delivery of
such communication to any one of the notice parties (but not a copy
party) listed above. Neither the Administrative Agent nor any
Lender shall incur any liability to any Loan Party (nor shall the
Administrative Agent incur any liability to the Lenders) for acting
upon any telephonic notice referred to in this Agreement which the
Administrative Agent or such Lender, as the case may be, believes
in good faith to have been given by a Person authorized to deliver
such notice. Failure of a Person designated to get a copy of a
notice to receive such copy shall not affect the validity of notice
properly given to any other Person.
The
Borrower agrees (a) to pay or reimburse the Administrative Agent
and the initial Titled Agent (but not the Lenders) for all of its
reasonable costs and expenses incurred in connection with this
Agreement and the other Loan Documents, the Loans and other
Obligations, the Borrowing Base Properties, and the transactions
contemplated under any Loan Document, including, without
limitation, in connection with the preparation, negotiation and
execution of the Loan Documents and any amendment, supplement or
modification to any Loan Document from time to time (including all
reasonable due diligence expenses and travel expenses relating
thereto, subject to the limitations set forth in this Agreement),
and the consummation of the transactions contemplated hereby and
thereby, and including the reasonable fees and disbursements of
outside counsel to the Administrative Agent and costs and expenses
in connection with the use of IntraLinks, Inc., SyndTrak or other
similar information transmission systems in connection with the
Loan Documents, (b) in connection with the addition of any
Borrowing Base Property or any Mortgage and other collateral
security documents, to be responsible on a joint and several basis
for any reasonable fees, costs or expenses payable to or incurred
by the Administrative Agent (but not the Lenders) in connection
with the addition of such Borrowing Base Property and Mortgage and
other Collateral Documents (including the reasonable fees, charges
and disbursements of outside counsel to the Administrative Agent),
any required mortgage recording, intangibles or transfer taxes, any
title insurance premiums, and any recording charges or other
amounts payable in connection with the recording of such Mortgages
and Collateral Documents, (c) to pay or reimburse the
Administrative Agent and the Lenders for all their costs and
expenses incurred in connection with the enforcement or
preservation of any rights under the Loan Documents, including the
reasonable fees and disbursements of their respective outside
counsel and any payments in indemnification or otherwise payable by
the Lenders to the Administrative Agent pursuant to the Loan
Documents, (d) to pay, and indemnify and hold harmless the
Administrative Agent from, any and all recording and filing fees,
and to pay, and indemnify and hold harmless the Administrative
Agent and the Lenders from any and all liabilities with respect to,
or resulting from any failure to pay or delay in paying any Other
Taxes which may be payable or determined to be payable in
connection with the execution and delivery of any of the Loan
Documents, or consummation of any amendment, supplement or
modification of, or any waiver or consent under or in respect of,
any Loan Document and (e) to the extent not already covered by any
of the preceding subsections, to pay the fees and disbursements of
outside counsel to the Administrative Agent and any Lender incurred
in connection with the representation of the Administrative Agent
or such Lender in any matter relating to or arising out of any
bankruptcy or other proceeding of the type described in
Section 11.1(f) or
11.1(g), including,
without limitation (i) any motion for relief from any stay or
similar order, (ii) the negotiation, preparation, execution and
delivery of any document relating to the Obligations and (iii) the
negotiation and preparation of any debtor-in-possession financing
or any plan of reorganization of the Borrower or any other Loan
Party, whether proposed by the Borrower, such other Loan Party, the
Lenders or any other Person, and whether such fees and expenses are
incurred prior to, during or after the commencement of such
proceeding or the confirmation or conclusion of any such
proceeding. If the Borrower shall fail to pay any amounts required
to be paid by it pursuant to this Section on demand therefor, the
Administrative Agent and/or the Lenders may pay such amounts on
behalf of the Borrower and either deem the same to be Loans
outstanding hereunder or otherwise Obligations owing
hereunder.
136
Subject
to Section 3.3 and
in addition to any rights now or hereafter granted under Applicable
Law and not by way of limitation of any such rights, the Borrower
hereby authorizes the Administrative Agent, the L/C Issuer, each
Lender, and each Participant, and each of their respective
Affiliates, at any time while an Event of Default exists, without
prior notice to the Borrower or to any other Person, any such
notice being hereby expressly waived, but in the case of a Lender,
L/C Issuer, Participant, or any Affiliate of any such Person,
subject to receipt of the prior written consent of the
Administrative Agent exercised in its sole discretion, to set off
and to appropriate and to apply any and all deposits (general or
special, including, but not limited to, indebtedness evidenced by
certificates of deposit, whether matured or unmatured) and any
other indebtedness at any time held or owing by the Administrative
Agent, such L/C Issuer, such Lender, such Participant or any such
Affiliate of any of them, to or for the credit or the account of
the Borrower against and on account of any of the Obligations,
irrespective of whether or not any or all of the Loans and all
other Obligations have been declared to be, or have otherwise
become, due and payable as permitted by Section 11.2, and although such
Obligations shall be contingent or unmatured.
(a) EACH
PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN
OR AMONG THE BORROWER, ANY OTHER LOAN PARTY, THE ADMINISTRATIVE
AGENT OR ANY OF THE LENDERS WOULD BE BASED ON DIFFICULT AND COMPLEX
ISSUES OF LAW AND FACT AND WOULD RESULT IN DELAY AND EXPENSE TO THE
PARTIES. ACCORDINGLY, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
EACH OF THE LENDERS, THE ADMINISTRATIVE AGENT AND THE BORROWER AND
OTHER LOAN PARTY HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY
ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR TRIBUNAL
IN WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST ANY PARTY HERETO
ARISING OUT OF THIS AGREEMENT, THE NOTES, OR ANY OTHER LOAN
DOCUMENT OR BY REASON OF ANY OTHER SUIT, CAUSE OF ACTION OR DISPUTE
WHATSOEVER BETWEEN OR AMONG THE BORROWER, ANY OTHER LOAN PARTY, THE
ADMINISTRATIVE AGENT OR ANY OF THE LENDERS OF ANY KIND OR NATURE
RELATING TO ANY OF THE LOAN DOCUMENTS.
137
(b) THE
BORROWER, EACH OTHER LOAN PARTY, THE ADMINISTRATIVE AGENT AND EACH
LENDER HEREBY AGREES THAT ANY FEDERAL DISTRICT COURT AND ANY STATE
COURT LOCATED IN NEW YORK, NEW YORK, SHALL HAVE JURISDICTION TO
HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG THE
BORROWER, ANY OTHER LOAN PARTY, THE ADMINISTRATIVE AGENT, THE OR
ANY OF THE LENDERS, PERTAINING DIRECTLY OR INDIRECTLY TO THIS
AGREEMENT, THE LOANS AND LETTERS OF CREDIT, THE NOTES OR ANY OTHER
LOAN DOCUMENT OR TO ANY MATTER ARISING HEREFROM OR THEREFROM
PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
THE BORROWER, EACH OTHER LOAN PARTY, THE ADMINISTRATIVE AGENT, THE
L/C ISSUER, AND EACH OF THE LENDERS EACH EXPRESSLY SUBMITS AND
CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR
PROCEEDING COMMENCED IN SUCH COURTS WITH RESPECT TO SUCH CLAIMS OR
DISPUTES. EACH SUCH PERSON FURTHER WAIVES ANY OBJECTION THAT IT MAY
NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY
SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN
INCONVENIENT FORUM, AND EACH AGREES NOT TO PLEAD OR CLAIM THE SAME.
THE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED
TO PRECLUDE THE BRINGING OF ANY ACTION BY ANY PARTY OR THE
ENFORCEMENT BY ANY PARTY OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN
ANY OTHER APPROPRIATE JURISDICTION.
(c) THE
PROVISIONS OF THIS SECTION HAVE BEEN CONSIDERED BY EACH PARTY WITH
THE ADVICE OF COUNSEL AND WITH A FULL UNDERSTANDING OF THE LEGAL
CONSEQUENCES THEREOF, AND SHALL SURVIVE THE PAYMENT OF THE LOANS
AND ALL OTHER AMOUNTS PAYABLE HEREUNDER OR UNDER THE OTHER LOAN
DOCUMENTS, THE TERMINATION OR EXPIRATION OF ALL LETTERS OF CREDIT
AND THE TERMINATION OF THIS AGREEMENT.
(a) Successors
and Assigns Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted
hereby, except that no Loan Party may assign or otherwise transfer
any of its rights or obligations hereunder without the prior
written consent of the Administrative Agent and each Lender, and no
Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an assignee in accordance with
the provisions of subsection (b) below, (ii) by
way of participation in accordance with the provisions of
subsection (d)
below or (iii) by way of pledge or assignment of a security
interest subject to the restrictions of subsection (f) below (and any
other attempted assignment or transfer by any party hereto shall be
null and void). Nothing in this Agreement, expressed or implied,
shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted
hereby, Participants to the extent provided in subsection (d) below and, to
the extent expressly contemplated hereby, the Affiliates and the
partners, directors, officers, employees, agents and advisors of
the Administrative Agent and the Lenders and of their respective
Affiliates) any legal or equitable right, remedy or claim under or
by reason of this Agreement.
(b) Assignments
by Lenders. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitments and the
Loans at the time owing to it); provided that any such assignment
shall be subject to the following conditions:
138
(i) Minimum
Amounts.
(A) in
the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment and/or the Loans at the time
owing to it, or contemporaneous assignments to related Approved
Funds that equal at least the amount specified in subsection (b)(i)(B) below in
the aggregate, or in the case of an assignment to a Lender, an
Affiliate of a Lender or an Approved Fund, no minimum amount need
be assigned; and
(B) in
any case not described in subsection (b)(i)(A) above, the
aggregate amount of the Commitment (which for this purpose includes
Loans outstanding thereunder) or, if the applicable Commitment is
not then in effect, the outstanding principal balance of the Loans
of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Acceptance Agreement with respect
to such assignment is delivered to the Administrative Agent or, if
“Trade Date” is specified in the Assignment and
Acceptance Agreement, as of the Trade Date) shall not be less than
$5,000,000 in the case of any assignment in respect of the
Revolving Credit Facility, unless each of the Administrative Agent
and, so long as no Default or Event of Default shall exist, the
Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed).
(ii) Proportionate
Amounts. Each partial
assignment shall be made as an assignment of a proportionate part
of all the assigning Lender’s rights and obligations under
this Agreement with respect to the Loan or Commitment
assigned.
(iii) Required
Consents. No consent
shall be required for any assignment except to the extent required
by subsection
(b)(i)(B) above and, in addition:
(A) the
consent of the Borrower (such consent not to be unreasonably
withheld or delayed) shall be required unless (x) a Default or
Event of Default shall exist at the time of such assignment or (y)
such assignment is to a Lender, an Affiliate of a Lender or an
Approved Fund; provided, that the Borrower
shall be deemed to have consented to any such assignment if
Borrower shall have failed to respond to an initial written request
for consent from the Administrative Agent within ten (10) Business
Days after having received notice thereof;
(B) the
consent of the Administrative Agent shall be required for any
assignment in respect of the Revolving Commitments or Revolving
Loans; and
(C) the
consent of the L/C Issuer and the Swingline Lender shall be
required for any assignment in respect of the Revolving Commitments
or Revolving Loans.
139
(iv) Assignment
and Acceptance Agreements. The parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and
Acceptance Agreement, together with a processing and recordation
fee of $3,500; provided, that the
Administrative Agent may, in its sole discretion, elect to waive
such processing and recordation fee in the case of any assignment.
The assignee, if it is not a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.
(v) No
Assignment to Certain Persons. No such assignment shall be made to
(A) any Loan Party or its Affiliates or Subsidiaries, (B) any
Defaulting Lender or any of its Subsidiaries, or (C) any EEA
Financial Institution that is, or is reasonably expected to become,
subject to a Bail In Action, or any Person who, upon becoming a
Lender hereunder, would constitute any of the foregoing persons
described in the foregoing clauses (B) or (C).
(vi) No
Assignment to Natural Persons. No such assignment shall be made to a
natural person (or a holding company, investment vehicle or trust
for, or operated for the primary benefit of a natural
person).
(vii) Certain
Additional Payments.
In connection with any assignment of rights and obligations of any
Defaulting Lender hereunder, no such assignment shall be effective
unless and until, in addition to the other conditions thereto set
forth herein, the parties to the assignment shall make such
additional payments to the Administrative Agent in an aggregate
amount sufficient, upon distribution thereof as appropriate (which
may be outright payment, purchases by the assignee of
participations or subparticipations, or other compensating actions,
including funding, with the consent of the Borrower and the
Administrative Agent, the applicable pro rata share of Loans
previously requested but not funded by the Defaulting Lender, to
each of which the applicable assignee and assignor hereby
irrevocably consent), to (A) pay and satisfy in full all payment
liabilities then owed by such Defaulting Lender to the
Administrative Agent, the Swingline Lender and each other Lender
hereunder (and interest accrued thereon), and (B) acquire (and fund
as appropriate) its full pro rata share of all Loans and
participations in Letters of Credit and Swingline Loans.
Notwithstanding the foregoing, in the event that any assignment of
rights and obligations of any Defaulting Lender hereunder shall
become effective under applicable law without compliance with the
provisions of this paragraph, then the assignee of such interest
shall be deemed to be a Defaulting Lender for all purposes of this
Agreement until such compliance occurs.
140
Subject
to acceptance and recording thereof by the Administrative Agent
pursuant to subsection
(c) below, from and after the effective date specified in
each Assignment and Acceptance Agreement, the assignee thereunder
shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Acceptance Agreement, 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 Acceptance Agreement, be
released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance Agreement covering all of the
assigning Lender’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 Sections 4.4, 13.2 and 13.9 and the other provisions
of this Agreement and the other Loan Documents as provided in
Section 13.10 with
respect to facts and circumstances occurring prior to the effective
date of such assignment; provided, that except to the
extent otherwise expressly agreed by the affected parties, no
assignment by a Defaulting Lender will constitute a waiver or
release of any claim of any party hereunder arising from that
Lender’s having been a Defaulting Lender. Any assignment or
transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for
purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with
subsection (d)
below.
(c) Register.
The Administrative Agent, acting solely for this purpose as an
agent of the Borrower, shall maintain at the Principal Office a
copy of each Assignment and Acceptance Agreement delivered to it
and a register for the recordation of the names and addresses of
the Lenders, and the Commitments of, and principal amounts (and
stated interest) of the Loans owing to, each Lender pursuant to the
terms hereof from time to time (the “Register”). The entries
in the Register shall be conclusive absent manifest error, and the
Borrower, the Administrative Agent 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.
The Register shall be available for inspection by the Borrower and
any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(d) Participations.
Any Lender may at any time, without the consent of the Borrower or
the Administrative Agent, the L/C Issuer or the Swingline Lender
(but with notice to the Administrative Agent), sell participations
to any Person (other than to a natural person or to a Loan Party or
its Affiliates or Subsidiaries) (each, a “Participant”) in all or a
portion of such Lender’s rights and/or obligations under this
Agreement (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 shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations and (iii) the Loan Parties,
the Administrative Agent and the Lenders shall continue to deal
solely and directly with such Lender in connection with such
Lender’s rights and obligations under this
Agreement.
141
Any
agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to (x) increase
such Lender’s Commitment, (y) extend the date fixed for the
payment of principal on the Loans or portions thereof owing to such
Lender or (z) reduce the rate at which interest is payable thereon.
The Borrower agrees that each Participant shall be entitled to the
benefits of Sections
3.12, 4.1,
4.4 (subject to the
requirements and limitations therein, including the requirements
under Section 3.12
(it being understood that the documentation required under
Section 3.12 shall
be delivered to the participating Lender)) to the same extent as if
it were the Lender it purchased such participation from and had
acquired its interest by assignment pursuant to subsection (b) above;
provided, that such
Participant (A) agrees to be subject to the provisions of
Sections 4.5 and
4.7 as if it were
an assignee under subsection (b) above; and (B)
shall not be entitled to receive any greater payment under
Section 3.12 or
4.1, with respect
to any participation, than its participating Lender would have been
entitled to receive, except to the extent the Borrower consented to
the applicable participation. Each Lender that sells a
participation agrees, at the Borrower’s request and the
expense of the Borrower, to use reasonable efforts to cooperate
with the Borrower to effectuate the provisions of Section 4.5 with respect to any
Participant. To the extent permitted by Applicable Law, each
Participant also shall be entitled to the benefits of Section 13.3 as though it were
a Lender, provided such Participant agrees to be subject to
Section 3.3 as
though it were a Lender. Each Lender that sells a
participation shall, acting solely for this purpose as a
non-fiduciary agent of the Borrower, 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 other than the
Administrative Agent 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.
(e) 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 pledge or assignment to secure
obligations to a Federal Reserve Bank; provided that no such pledge
or assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.
(a) Except
as otherwise expressly provided in this Agreement (including as
provided in Section 2.15 with respect to any Increase Amendment),
any consent or approval required or permitted by this Agreement or
any other Loan Document (other than any fee letter) to be given by
the Lenders may be given, and any term of this Agreement or of any
other Loan Document may be amended, and the performance or
observance by any Loan Party of any terms of this Agreement or such
other Loan Document or the continuance of any Default or Event of
Default may be waived (either generally or in a particular instance
and either retroactively or prospectively) with, but only with, the
written consent of the Requisite Lenders (or the Administrative
Agent at the written direction of the Requisite Lenders) and, in
the case of an amendment to any Loan Document, the written consent
of each Loan Party that is a party thereto. Any term of any fee
letter may be amended, and the performance or observance by the
Borrower of any terms of any fee letter may be waived (either
generally or in a particular instance and either retroactively or
prospectively) with, but only with, the written consent of the
parties thereto.
(b)
Notwithstanding the foregoing, no amendment (including any Increase
Amendment), waiver or consent shall do any of the
following:
(i) extend
or increase the Commitments of any Lender, without the prior
written consent of such Lender;
142
(ii) reduce
the principal of, or the rates of interest that will be charged on
the outstanding principal amount of, any Loans or other Obligations, or any fees or other
amounts payable under any Loan Document, without the prior written
consent of each Lender adversely affected thereby; provided that
only the consent of the Requisite Lenders shall be required to: (A)
to amend the definition of “Post-Default Rate” or to
waive any obligation of the Borrower to pay interest at the
Post-Default Rate, excess Letter of Credit fees pursuant to
Section 3.6(b), or
any charge pursuant to Section 2.4(c) or (B) to amend
any financial covenant hereunder (or any defined term used therein)
even if the effect of such amendment would be to reduce the rate of
interest on any Loan or other Obligation or to reduce any fee
payable hereunder;
(iii) modify
the definition of the term “Maturity Date” or, except
in accordance with Section
2.13, otherwise postpone any date fixed for any payment of
any principal of, or interest on, any Loans or any other
Obligations or any fee or other amount payable under any Loan
Document (including the waiver of any Default or Event of Default
as a result of the nonpayment of any such Obligations as and when
due), or extend the expiration date of any Letter of Credit beyond
the Maturity Date, in each case without the prior written consent
of each Lender adversely affected thereby;
(iv) amend
or otherwise modify the provisions of Section 3.2 or the definition
of the term “Commitment Percentage”, without the prior
written consent of each Lender adversely affected
thereby;
(v) modify
the definition of the term “Requisite Lenders” or
otherwise modify in any other manner the number or percentage of
the Lenders required to make any determinations or waive any rights
hereunder or to modify any provision hereof, including without
limitation, any modification of this Section 13.6 if such
modification would have such effect, without the prior written
consent of each Lender adversely affected thereby;
(vi) release
any Guarantor from its obligations under its Guaranty, without the
prior written consent of each Lender, except, with respect to any
Subsidiary Guarantor, pursuant to a transaction otherwise permitted
hereunder;
(vii) release
all or substantially all of the Collateral in any transaction or
series of related transactions without the prior written consent of
each Lender; or
(viii) amend
or otherwise modify the provisions of Section 2.14, without the prior
written consent of each Lender adversely affected
thereby.
(c) No
amendment, waiver or consent, unless in writing and signed by the
Administrative Agent, in such capacity, in addition to the Lenders
required hereinabove to take such action, shall affect the rights
or duties of the Administrative Agent under this Agreement or any
of the other Loan Documents. Any amendment, waiver or consent
relating to Section
2.3 or the obligations of the Swingline Lender under this
Agreement or any other Loan Document shall, in addition to the
Lenders required hereinabove to take such action, require the
written consent of the Swingline Lender. Any amendment, waiver or
consent relating to Section 2.2 or the obligations
of the L/C Issuer under this Agreement or any other Loan Document
shall, in addition to the Lenders required hereinabove to take such
action, requiring the written consent of the L/C Issuer. Any
amendment, waiver or consent with respect to any Loan Document that
(i) diminishes the rights of a Specified Derivatives Provider in a
manner or to an extent dissimilar to that affecting the Lenders or
(ii) increases the liabilities or obligations of a Specified
Derivatives Provider shall, in addition to the Lenders required
hereinabove to take such action, require the consent of the Lender
that is (or having an Affiliate that is) such Specified Derivatives
Provider.
143
(d) No
waiver shall extend to or affect any obligation not expressly
waived or impair any right consequent thereon and any amendment,
waiver or consent shall be effective only in the specific instance
and for the specific purpose set forth therein. No course of
dealing or delay or omission on the part of the Administrative
Agent or any Lender in exercising any right shall operate as a
waiver thereof or otherwise be prejudicial thereto. Any Event of
Default occurring hereunder shall continue to exist until such time
as such Event of Default is waived in writing in accordance with
the terms of this Section, notwithstanding any attempted cure or
other action by the Borrower, any other Loan Party or any other
Person subsequent to the occurrence of such Event of Default.
Except as otherwise explicitly provided for herein or in any other
Loan Document, no notice to or demand upon the Borrower shall
entitle the Borrower to any other or further notice or demand in
similar or other circumstances.
(e) Any
Non-Consenting Lender shall be subject to the provisions of
Section
4.5.
(f) Notwithstanding
any provision herein to the contrary the Administrative Agent and
the Borrower may amend, modify or supplement this Agreement or any
other Loan Document to cure or correct administrative errors or
omissions, any ambiguity, omission, defect or inconsistency or to
effect administrative changes, and such amendment shall become
effective without any further consent of any other party to such
Loan Document so long as (i) such amendment, modification or
supplement does not adversely affect the rights of any Lender or
other holder of Obligations in any material respect and (ii) the
Lenders shall have received at least five Business Days’
prior written notice thereof and the Administrative Agent shall not
have received, within five Business Days of the date of such notice
to the Lenders, a written notice from the Requisite Lenders stating
that the Requisite Lenders object to such amendment.
The
relationship between the Borrower, on the one hand, and the Lenders
and the Administrative Agent, on the other hand, shall be solely
that of borrower and lender. Neither the Administrative Agent nor
any Lender shall have any fiduciary responsibilities to the
Borrower or any other Loan Party and no provision in this Agreement
or in any of the other Loan Documents, and no course of dealing
between or among any of the parties hereto, shall be deemed to
create any fiduciary duty owing by the Administrative Agent or any
Lender to any Lender, the Borrower or any other Loan Party. Neither
the Administrative Agent nor any Lender undertakes any
responsibility to the Borrower to review or inform the Borrower of
any matter in connection with any phase of the Borrower’s
business or operations. In connection with all aspects of each
transaction contemplated hereby, the Borrower and each other Loan
Party acknowledges and agrees, and acknowledges its
Affiliates’ understanding, that (a) the credit facilities
provided for hereunder and any related arranging or other services
in connection therewith (including in connection with any
amendment, waiver or other modification hereof or of any other Loan
Document) are an arm’s-length commercial transaction between
the Borrower, each other Loan Party and their respective
Affiliates, on the one hand, and the Administrative Agent and the
Lenders, on the other hand; (b) neither the Administrative Agent
nor any Lender has assumed or will assume any advisory, agency or
fiduciary responsibility in favor of the Borrower or any other Loan
Party with respect to any of the transactions contemplated hereby
or the process leading hereto (irrespective of whether the
Administrative Agent, any Lender or any of their respective
Affiliates has advised or is currently advising the Borrower, any
other Loan Party or any of their respective Affiliates on other
matters) and neither the Administrative Agent nor any Lender has
any obligation to the Borrower, any other Loan Party or any of
their respective Affiliates with respect to the transactions
contemplated hereby except those obligations expressly set forth
herein and in the other Loan Documents; and (c) the Administrative
Agent, the Lenders and their respective Affiliates may be engaged
in a broad range of transactions that involve interests that differ
from those of the Borrower, the other Loan Parties and their
respective Affiliates,
and neither the Administrative Agent nor any Lender has any
obligation to disclose any of such interests by virtue of any
advisory, agency or fiduciary relationship.
144
The
Administrative Agent, the L/C Issuer and each Lender agree that
information about the Loan Parties not generally disclosed to the
public which is furnished to the Administrative Agent or any
Lender, pursuant to the provisions of this Agreement or any other
Loan Document, and the respective properties thereof and their
operations, affairs and financial condition, shall not be generally
disclosed by it to the public and that such information is to be
used only for the purposes of this Agreement and the other Loan
Documents and shall not be divulged to any Person other than the
Administrative Agent, the L/C Issuer, the Lenders, and their
respective agents who are actively and directly participating in
the evaluation, administration or enforcement of the Loan Documents
and other transactions between or among the Administrative Agent,
the L/C Issuer, or such Lender, as applicable, and the Borrower,
but in any event the Administrative Agent and the Lenders may make
disclosure: (a) to any of their respective Affiliates and to any of
their (and their Affiliates’) respective directors, officers,
agents, employees, advisors and counsel (provided such Persons
shall be informed of the confidential nature of such information
and be instructed to keep such information confidential); (b) as
reasonably requested by (i) any potential or actual assignee,
Participant or other transferee in connection with the contemplated
transfer of any Commitment or participations therein as permitted
hereunder (and including any Person that is a potential Augmenting
Lender pursuant to Section
2.15) or (ii) any actual or prospective party (or its
Affiliates or their respective directors, officers, agents,
employees, advisors or counsel) to any swap, derivative or other
transaction under which payments are to be made by reference to the
Borrower and its obligations, this Agreement or payments hereunder
(provided, in each case, that they shall agree to keep such
information confidential in accordance with the terms of this
Section); (c) as required or requested by any Governmental
Authority or representative thereof or pursuant to legal process or
in connection with any legal proceedings or as otherwise required
by Applicable Law; provided, however, if the Administrative Agent
or a Lender receives a summons or subpoena to disclose any such
confidential information to any Person, the Administrative Agent or
such Lender, as applicable, shall, if legally permitted, endeavor
to notify the Borrower thereof as soon as possible after receipt of
such request, summons or subpoena and the Borrower shall be
afforded an opportunity to seek protective orders, or such other
confidential treatment of such disclosed information, as the
Borrower and the Administrative Agent or such Lender, as
applicable, may deem reasonable; (d) to the Administrative
Agent’s or such Lender’s independent auditors and other
professional advisors (provided they shall be notified of the
confidential nature of the information); (e) after the happening
and during the continuance of an Event of Default, to any other
Person deemed necessary or advisable by the Administrative Agent or
any Lender in connection with the exercise by the Administrative
Agent or the Lenders of rights hereunder or under any of the other
Loan Documents; (f) upon Borrower’s prior consent (which
consent shall not be unreasonably withheld, conditioned or
delayed), to any contractual counter-parties to any swap or similar
hedging agreement or to any rating agency; and (g) to the extent
such information (x) becomes publicly available other than as a
result of a breach of this Section actually known to the
Administrative Agent or such Lender to be such a breach or (y)
becomes available to the Administrative Agent or any Lender on a
nonconfidential basis from a source other than a Loan Party or any
of their respective Affiliates. Notwithstanding the foregoing, the
Administrative Agent and each Lender may disclose any such
confidential information, without notice to the Borrower or any
other Loan Party, to Governmental Authorities and other regulatory
authorities (including any self-regulatory authority, such as the
National Association of Insurance Commissioners) in connection with
any regulatory examination of the Administrative Agent or such
Lender or in accordance with the regulatory compliance policy of
the Administrative Agent or such Lender. Any Person required to
maintain the confidentiality of information as provided in this
Section 13.8 shall
be considered to have complied with its obligation to do so if such
Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to
its own confidential information.
Each of
the Administrative Agent, the Lenders and the L/C Issuer
acknowledges that (a) the information referred to in the preceding
paragraph may include material non-public information concerning a
Loan Party or a Subsidiary, as the case may be, (b) it has
developed compliance procedures regarding the use of material
non-public information and (c) it will handle such material
non-public information in accordance with Applicable Law, including
United States Federal and state securities Laws.
145
(a) The
Borrower shall and hereby agrees to indemnify, defend and hold
harmless the Administrative Agent, the Titled Agent, the L/C
Issuer, each of the Lenders, any Affiliate of the Administrative
Agent or the L/C Issuer or any Lender, and their respective
directors, officers, shareholders, partners, trustees,
administrators, managers, agents, employees, advisors,
representatives and counsel (each referred to herein as an
“Indemnified
Party”) from and against any and all of the following
(collectively, the “Indemnified Costs”):
losses, costs, claims, damages, penalties, liabilities,
obligations, deficiencies, actions, judgments, suits, costs or
reasonable expenses of every kind and nature (including, without
limitation, amounts paid in settlement, court costs and the fees
and disbursements of counsel incurred in connection with any
litigation, investigation, claim or proceeding or any advice
rendered in connection therewith, but excluding losses, costs,
claims, damages, penalties, liabilities, obligations, deficiencies,
actions, judgments, suits, costs or expenses in respect of which is
specifically covered by Section 3.12 or 4.1 or expressly excluded from
the coverage of such Section 3.12 or 4.1) incurred by an Indemnified
Party in connection with, arising out of, or by reason of, any
suit, cause of action, claim, arbitration, investigation or
settlement, consent decree or other proceeding (the foregoing
referred to herein as an “Indemnity Proceeding”)
which is in any way related directly or indirectly to: (i) this
Agreement or any other Loan Document or the transactions
contemplated thereby; (ii) the making of any Loans or issuance of
Letters of Credit hereunder; (iii) any actual or proposed use by
the Borrower of the proceeds of the Loans or Letters of Credit;
(iv) the Administrative Agent’s, the L/C Issuer’s or
any Lender’s entering into this Agreement; (v) the fact that
the Administrative Agent, the L/C Issuer and the Lenders have
established the credit facility evidenced hereby in favor of the
Borrower; (vi) the fact that the Administrative Agent, the L/C
Issuer and the Lenders are creditors of the Borrower and the other
Loan Parties and have or are alleged to have information regarding
the financial condition, strategic plans or business operations of
the Borrower and the other Loan Parties; (vii) the fact that the
Administrative Agent and the Lenders are material creditors of the
Borrower and are alleged to influence directly or indirectly the
business decisions or affairs of the Borrower or its financial
condition; (viii) the exercise of any right or remedy the
Administrative Agent, the L/C Issuer or the Lenders may have under
this Agreement or the other Loan Documents; (ix) any civil penalty
or fine assessed by the OFAC or any other Governmental Authority
against, and all reasonable costs and expenses (including counsel
fees and disbursements) incurred in connection with defense thereof
by, the Administrative Agent, the L/C Issuer or any Lender as a
result of conduct of the Borrower, any other Loan Party or any
Subsidiary that violates a sanction enforced by the OFAC; or (x)
any violation or non-compliance by the Borrower, any other Loan
Party or any Subsidiary of any Applicable Law (including any
Environmental Law) including, but not limited to, any Indemnity
Proceeding commenced by the Internal Revenue Service or state
taxing authority; provided, however, that the Borrower shall not be
obligated to indemnify any Indemnified Party for (A) any acts or
omissions of such Indemnified Party in connection with matters
described in this subsection to the extent arising from the gross
negligence or willful misconduct of such Indemnified Party, as
determined by a court of competent jurisdiction in a final,
non-appealable judgment, (B) Indemnified Costs to the extent
resulting from a claim not involving an act or omission of any Loan
Party and that is brought by an Indemnified Party against another
Indemnified Party (other than against the Administrative Agent in
its capacity as such), or (C) Indemnified Costs to the extent
resulting from a claim brought by the Borrower or any other Loan
Party against an Indemnified Party for breach in bad faith of such
Indemnified Party’s obligations hereunder or under any other
Loan Document, if the Borrower or such other Loan Party has
obtained a final and non-appealable judgment in its favor on such
claim as determined by a court of competent
jurisdiction.
(b) The
Borrower’s indemnification obligations under this
Section 13.9 shall
apply to all Indemnity Proceedings arising out of, or related to,
the foregoing whether or not an Indemnified Party is a named party
in such Indemnity Proceeding. In this regard, this indemnification
shall cover all Indemnified Costs of any Indemnified Party in
connection with any deposition of any Indemnified Party or
compliance with any subpoena (including any subpoena requesting the
production of documents). This indemnification shall, among other
things, apply to any Indemnity Proceeding commenced by other
creditors of the Borrower or any Subsidiary, any shareholder of the
Borrower or any Subsidiary (whether such shareholder(s) are
prosecuting such Indemnity Proceeding in their individual capacity
or derivatively on behalf of the Borrower), any account debtor of
the Borrower or any Subsidiary or by any Governmental Authority. If
indemnification is to be sought hereunder by an Indemnified Party,
then such Indemnified Party shall notify the Borrower of the
commencement of any Indemnity Proceeding; provided, however, that
the failure to so notify the Borrower shall not relieve the
Borrower from any liability that they may have to such Indemnified
Party pursuant to this Section 13.9.
146
(c) This
indemnification shall apply to any Indemnity Proceeding arising
during the pendency of any bankruptcy proceeding filed by or
against the Borrower and/or any Loan Party or other Subsidiary of a
Loan Party.
(d) All
fees and expenses of, and all amounts paid to third-persons by, an
Indemnified Party shall be advanced by the Borrower at the request
of such Indemnified Party notwithstanding any claim or assertion by
the Borrower that such Indemnified Party is not entitled to
indemnification hereunder, upon receipt of an undertaking by such
Indemnified Party that such Indemnified Party will reimburse the
Borrower if it is actually and finally determined by a court of
competent jurisdiction that such Indemnified Party is not so
entitled to indemnification hereunder.
(e) An
Indemnified Party may conduct its own investigation and defense of,
and may formulate its own strategy with respect to, any Indemnity
Proceeding covered by this Section and, as provided above, all
Indemnified Costs incurred by such Indemnified Party shall be
reimbursed by the Borrower. No action taken by legal counsel chosen
by an Indemnified Party in investigating or defending against any
such Indemnity Proceeding shall vitiate or in any way impair the
obligations and duties of the Borrower hereunder to indemnify and
hold harmless each such Indemnified Party; provided, however, that
if (i) the Borrower is required to indemnify an Indemnified Party
pursuant hereto and (ii) the Borrower has provided evidence
reasonably satisfactory to such Indemnified Party that the Borrower
has the financial wherewithal to reimburse such Indemnified Party
for any amount paid by such Indemnified Party with respect to such
Indemnity Proceeding, such Indemnified Party shall not settle or
compromise any such Indemnity Proceeding without the prior written
consent of the Borrower (which consent shall not be unreasonably
withheld or delayed). Notwithstanding the foregoing, an Indemnified
Party may settle or compromise any such Indemnity Proceeding
without the prior written consent of the Borrower where (x) no
monetary relief is sought against such Indemnified Party in such
Indemnity Proceeding or (y) there is an allegation of a violation
of law by such Indemnified Party.
(f) If
and to the extent that the obligations of the Borrower under this
Section are unenforceable for any reason, the Borrower hereby
agrees to make the maximum contribution to the payment and
satisfaction of such obligations which is permissible under
Applicable Law.
(g) The
Borrower’s obligations under this Section shall survive any
termination of this Agreement and the other Loan Documents and the
payment in full in cash of the Obligations, and are in addition to,
and not in substitution of, any other of their obligations set
forth in this Agreement or any other Loan Document to which it is a
party.
(h) References
in this Section to “Lender” or “Lenders”
shall be deemed to include such Persons (and their Affiliates) in
their capacity as Specified Derivatives Providers.
147
This
Agreement shall terminate at such time as (a) all of the
Commitments have been terminated, (b) all Letters of Credit have
terminated or expired (or have been collateralized or backstopped
in a manner satisfactory to the L/C Issuer in its sole discretion),
(c) none of the Lenders nor Swingline Lender nor L/C Issuer is
obligated any longer under this Agreement to make any Loans and (c)
all Obligations (other than obligations which survive as provided
in the following sentence) have been paid in full in cash and
otherwise satisfied in full. The indemnities to which the
Administrative Agent, the L/C Issuer, the Swingline Lender and the
Lenders are entitled under the provisions of Sections 3.12, 4.1, 4.4, 12.7, 13.2 and 13.9 and any other provision of
this Agreement and the other Loan Documents which, by its terms,
expressly survives termination of this Agreement or such other Loan
Document, and the provisions of Section 13.4, shall continue in
full force and effect and shall protect the Administrative Agent,
the L/C Issuer, the Swingline Lender and the Lenders (i)
notwithstanding any termination of this Agreement, or of the other
Loan Documents, against events arising after such termination as
well as before and (ii) at all times after any such party ceases to
be a party to this Agreement with respect to all matters and events
existing on or prior to the date such party ceased to be a party to
this Agreement.
Any
provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective
only to the extent of such prohibition or unenforceability without
invalidating the remainder of such provision or the remaining
provisions or affecting the validity or enforceability of such
provision in any other jurisdiction.
THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK. UNLESS OTHERWISE SPECIFIED
THEREIN, EACH OF THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. TO
THE FULLEST EXTENT PERMITTED BY LAW, THE LOAN PARTIES HEREBY
UNCONDITIONALLY AND IRREVOCABLY WAIVE ANY CLAIM TO ASSERT THAT THE
LAW OF ANY OTHER JURISDICTION GOVERNS THIS AGREEMENT.
This
Agreement and any amendments, waivers, consents or supplements may
be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and
delivered shall be deemed an original, but all of which
counterparts together shall constitute but one and the same
instrument.
The
obligations of the Loan Parties to direct or prohibit the taking of
certain actions by the other Loan Parties as specified herein shall
be absolute and not subject to any defense any Loan Party may have
that it does not control any such other Loan Party.
148
Neither
the Administrative Agent, the L/C Issuer nor any Lender, nor any
Affiliate, officer, director, employee, attorney, or agent of the
Administrative Agent, the L/C Issuer or any Lender shall have any
liability with respect to, and each Loan Party hereby waives,
releases, and agrees not to ▇▇▇ any of them upon, any claim for any
special, indirect, incidental, or consequential damages suffered or
incurred by any Loan Party in connection with, arising out of, or
in any way related to, this Agreement or any of the other Loan
Documents or Letters of Credit, or any of the transactions
contemplated by this Agreement or any of the other Loan Documents.
Each Loan Party hereby waives, releases, and agrees not to ▇▇▇ the
Administrative Agent, the L/C Issuer or any Lender or any of the
Administrative Agent’s or any Lender’s or L/C
Issuer’s Affiliates, officers, directors, employees,
attorneys, or agents for punitive damages in respect of any claim
in connection with, arising out of, or in any way related to, this
Agreement or any of the other Loan Documents or Letters of Credit,
or any of the transactions contemplated by this Agreement or
financed hereby or thereby. Neither the Administrative Agent,
the L/C Issuer, nor any Lender, nor any Affiliate, officer,
director, employee, attorney, or agent of the Administrative Agent,
the L/C Issuer or any Lender shall have any liability with respect
to, and each Loan Party hereby waives, releases, and agrees not to
▇▇▇ any of them upon, any damages arising from the use by
unintended recipients of any information or other materials
distributed by them through telecommunications, electronic or other
information transmission systems in connection with this Agreement
or the other Loan Documents, the Letters of Credit or the
transactions contemplated hereby and thereby.
This
Agreement, the Notes, and the other Loan Documents referred to
herein embody the final, entire agreement among the parties hereto
and supersede any and all prior commitments, agreements,
representations, and understandings, whether written or oral,
relating to the subject matter hereof and thereof and may not be
contradicted or varied by evidence of prior, contemporaneous, or
subsequent oral agreements or discussions of the parties hereto.
There are no oral agreements among the parties hereto.
Each
Loan Party, each Lender and the Administrative Agent acknowledge
that each of them has had the benefit of legal counsel of its own
choice and has been afforded an opportunity to review this
Agreement and the other Loan Documents with its legal counsel and
that this Agreement and the other Loan Documents shall be construed
as if jointly drafted by each Loan Party, each Lender and the
Administrative Agent.
(a) Each
of the Loan Parties, jointly and severally, hereby irrevocably and
unconditionally accepts, not merely as a surety but also as a
co-debtor, joint and several liability with the other the Loan
Parties with respect to the payment and performance of all of the
Obligations, it being the intention of the parties hereto that all
of the Obligations shall be the joint and several obligations of
each of the Loan Parties without preferences or distinction among
them.
149
(b) If
and to the extent that any of the Loan Parties shall fail to make
any payment with respect to any of the Obligations as and when due
or to perform any of the Obligations in accordance with the terms
thereof, then in each such event the other Loan Parties will make
such payment with respect to, or perform, such
Obligation.
(c) The
Obligations of each of the Loan Parties under the provisions of
this Section 13.18 constitute full recourse obligations of each of
such Loan Parties enforceable against each such Loan Party to the
full extent of its properties and assets.
(d) Each
of the Loan Parties, to
the fullest extent permitted by Applicable Law, hereby waives
notice of acceptance of its joint and several liability, notice of
any Loans or Letters of Credit or other extensions of credit made
under this Agreement, notice of any action at any time taken or
omitted by the Administrative Agent or any Lender under or in
respect of any of the Obligations, and, generally, to the extent
permitted by Applicable Law, all demands, notices (other than those
required pursuant to the terms of any Loan Document) and other
formalities of every kind in connection with the Loan Documents.
Each Loan Party, to the fullest extent permitted by Applicable Law,
hereby waives all defenses which may be available by virtue of any
valuation, stay, moratorium law or other similar law now or
hereafter in effect, any right to require the marshaling of assets
of the Loan Parties and any other entity or Person primarily or
secondarily liable with respect to any of the Obligations and all
suretyship defenses generally. Each of the Loan Parties, to the
fullest extent permitted by Applicable Law, hereby assents to, and
waives notice of, any extension or postponement of the time for the
payment of any of the Obligations, the acceptance of any payment of
any of the Obligations, the acceptance of any partial payment
thereon, any waiver, consent or other action or acquiescence by the
Administrative Agent or any Lender at any time or times in respect
of any default by any of the Loan Parties in the performance or
satisfaction of any term, covenant, condition or provision of any
Loan Document, any and all other indulgences whatsoever by the
Administrative Agent or any Lender in respect of any of the
Obligations, and the taking, addition, substitution or release, in
whole or in part, at any time or times, of any collateral security
for any of the Obligations or the addition, substitution or
release, in whole or in part, of any of the Loan Parties. Without
limiting the generality of the foregoing, each of the Loan Parties
assents to any other action or delay in acting or failure to act on
the part of the Administrative Agent or any Lender with respect to
the failure by any of the Loan Parties to comply with any of its
respective Obligations, including any failure strictly or
diligently to assert any right or to pursue any remedy or to comply
fully with Applicable Laws thereunder, which might, but for the
provisions of this Section
13.18, afford grounds for terminating, discharging or
relieving any Loan Party, in whole or in part, from any of its
Obligations under this Section 13.18, it being the
intention of each of the Loan Parties that, so long as any of the
Obligations hereunder remain unsatisfied, the Obligations of such
the Loan Parties under this Section 13.18 shall not be
discharged except by performance and then only to the extent of
such performance. The Obligations of each of the Loan Parties under
this Section 13.18
shall not be diminished or rendered unenforceable by any winding
up, reorganization, arrangement, liquidation, re-construction or
similar proceeding with respect to any of the Loan Parties or the
Administrative Agent or any Lender. The joint and several liability
of the Loan Parties hereunder shall continue in full force and
effect notwithstanding any absorption, merger, amalgamation or any
other change whatsoever in the name, membership, constitution or
place of formation of any of the Loan Parties, the Administrative
Agent or any Lender.
150
(e) To
the extent any Loan Party makes a payment hereunder in excess of
the aggregate amount of the benefit received by such Loan Party in
respect of the extensions of credit under this Agreement (the
“Benefit
Amount”), then such Loan Party, after the irrevocable
payment in full of all of the Obligations, shall be entitled to
recover from each other Loan Party such excess payment, pro rata,
in accordance with the ratio of the Benefit Amount received by each
such other Loan Party to the total Benefit Amount received by all
the Loan Parties, and the right to such recovery shall be deemed to
be an asset and property of such Loan Party so funding;
provided, that each
of the Loan Parties hereby agrees that it will not enforce any of
its rights of contribution or subrogation against the other the
Loan Parties with respect to any liability incurred by it hereunder
or under any of the other Loan Documents, any payments made by it
to the Administrative Agent or any Lender with respect to any of
the Obligations or any collateral security therefor until such time
as all of the Obligations have been irrevocably paid in full. Any
claim which any Loan Party may have against any other Loan Party
with respect to any payments to the Administrative Agent or any
Lender hereunder or under any other Loan Document are hereby
expressly made subordinate and junior in right of payment, without
limitation as to any increases in the Obligations arising hereunder
or thereunder, to the prior irrevocable payment in full of the
Obligations and, in the event of any insolvency, bankruptcy,
receivership, liquidation, reorganization or other similar
proceeding under the laws of any jurisdiction relating to any Loan
Party, its debts or its assets, whether voluntary or involuntary,
all such Obligations shall be irrevocably paid in full before any
payment or distribution of any character, whether in cash,
securities or other property, shall be made to any other Loan Party
therefor.
(f) Each
of the Loan Parties hereby agrees that the payment of any amounts
due with respect to the indebtedness owing by any Loan Party to any
other Loan Party is hereby subordinated to the prior irrevocable
payment in full of the Obligations. Each Loan Party hereby agrees
that after the occurrences and during the continuance of any
Default or Event of Default, such Loan Party will not demand, ▇▇▇
for or otherwise attempt to collect any indebtedness of any other
Loan Party owing to such Loan Party until the Obligations shall
have been irrevocably paid in full. If, notwithstanding the
foregoing sentence, such Loan Party shall collect, enforce or
receive any amounts in respect of such indebtedness before the
irrevocable payment in full of the Obligations, such amounts shall
be collected, enforced, received by such Loan Party as trustee for
Administrative Agent and be paid over to the Administrative Agent
for the pro rata accounts of the Lenders to be applied to repay (or
be held as collateral security for the repayment of) the
Obligations.
For
purposes of this Agreement and the other Loan Documents, each of
the Loan Parties hereby designates the Borrower as the agent and
representative of each Loan Party for all purposes hereunder and
the Borrower hereby accepts each such appointment. The
Administrative Agent, the L/C Issuer, the Swingline Lender and each
Lender may regard any notice or other communication pursuant to any
Loan Document from the Borrower as a notice or communication from
all the Loan Parties, and may give any notice or communication
required or permitted to be given to any Loan Party or the Loan
Parties hereunder or under any other Loan Document to the Borrower
on behalf of such Loan Party or the Loan Parties. Each Loan Party
agrees that each notice, election, representation and warranty,
covenant, agreement and undertaking made on its behalf by the
Borrower shall be deemed for all purposes to have been made by such
Loan Party and shall be binding upon and enforceable against such
Loan Party to the same extent as if the same had been made directly
by such Loan Party. The obligations of the Borrower to direct or
prohibit the taking of certain actions by the other Loan Parties
and Subsidiaries as specified herein shall be absolute and not
subject to any defense that the Borrower may have that the Borrower
does not control such Loan Parties and Subsidiaries.
151
Section 13.20
Acknowledgement Regarding Any Supported QFCs.
To the
extent that the Loan Documents provide support, through a guarantee
or otherwise, for Derivatives Contracts or any other agreement or
instrument that is a QFC (such support “QFC Credit Support” and each such
QFC a “Supported
QFC”), the parties acknowledge and agree as follows
with respect to the resolution power of the Federal Deposit
Insurance Corporation under the Federal Deposit Insurance Act and
Title II of the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer
Protection Act (together with the regulations promulgated
thereunder, the “U.S. Special
Resolution Regimes”) in respect of such Supported QFC
and QFC Credit Support (with the provisions below applicable
notwithstanding that the Loan Documents and any Supported QFC may
in fact be stated to be governed by the laws of the State of New
York and/or of the United States or any other state of the United
States):
In the
event a Covered Entity that is party to a Supported QFC (each, a
“Covered Party”)
becomes subject to a proceeding under a U.S. Special Resolution
Regime, the transfer of such Supported QFC and the benefit of such
QFC Credit Support (and any interest and obligation in or under
such Supported QFC and such QFC Credit Support, and any rights in
property securing such Supported QFC or such QFC Credit Support)
from such Covered Party will be effective to the same extent as the
transfer would be effective under the U.S. Special Resolution
Regime if the Supported QFC and such QFC Credit Support (and any
such interest, obligation and rights in property) were governed by
the laws of the United States or a state of the United States. In
the event a Covered Party or a BHC Act Affiliate of a Covered Party
becomes subject to a proceeding under a U.S. Special Resolution
Regime, Default Rights under the Loan Documents that might
otherwise apply to such Supported QFC or any QFC Credit Support
that may be exercised against such Covered Party are permitted to
be exercised to no greater extent than such Default Rights could be
exercised under the U.S. Special Resolution Regime if the Supported
QFC and the Loan Documents were governed by the laws of the United
States or a state of the United States. Without limitation of the
foregoing, it is understood and agreed that rights and remedies of
the parties with respect to a Defaulting Lender shall in no event
affect the rights of any Covered Party with respect to a Supported
QFC or any QFC Credit Support.
Section
13.21 Acknowledgement
and Consent to Bail-In of EEA Financial Institutions.
Notwithstanding anything to the contrary in any Loan Document or in
any other agreement, arrangement or understanding among any such
parties, each party hereto acknowledges that any liability of any
Lender that is an EEA Financial Institution arising under any Loan
Document, to the extent such liability is unsecured, may be subject
to the write-down and conversion powers of an EEA Resolution
Authority and agrees and consents to, and acknowledges and agrees
to be bound by:
(a) the
application of any Write-Down and Conversion Powers by an EEA
Resolution Authority to any such liabilities arising hereunder
which may be payable to it by any Lender that is an EEA Financial
Institution; and
152
(b) the
effects of any Bail-In Action on any such liability, including, if
applicable:
(i) a
reduction in full or in part or cancellation of any such
liability;
(ii) a
conversion of all, or a portion of, such liability into shares or
other instruments of ownership in such EEA Financial Institution,
its parent undertaking, or a bridge institution that may be issued
to it or otherwise conferred on it, and that such shares or other
instruments of ownership will be accepted by it in lieu of any
rights with respect to any such liability under this Agreement or
any other Loan Document; or
(iii) the
variation of the terms of such liability in connection with the
exercise of the write-down and conversion powers of any EEA
Resolution Authority.
[Signature Pages Follow]
153
IN
WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be executed by their authorized officers all as of the
day and year first above written.
HC
GOVERNMENT REALTY HOLDINGS, L.P.
By: HC
Government Realty Trust, Inc., its general partner
By:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇
Title:
Chief Executive Officer
HOLMWOOD
PORTFOLIO HOLDINGS, LLC
By: HC
Government Realty Trust, Inc., its sole member
By:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇
Title:
Chief Executive Officer
By:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇
Title:
Chief Executive Officer
|
|
|
|
|
|
|
|
|
154
|
Acknowledged and Agreed by each
SUBSIDIARY GUARANTOR:
|
GOV
FBI ▇▇▇▇▇▇▇ CITY, LLC
GOV
CBP CAPE CANAVERAL, LLC
GOV
SILT, LLC
GOV
MOORE SSA, LLC
GOV
LAWTON SSA, LLC
GOV
LAKEWOOD DOT, LLC
GOV
FT. ▇▇▇▇▇, LLC
GOV
NORFOLK, LLC
GOV
SAN ANTONIO, LLC
GOV
MONTGOMERY, LLC
GOV
KNOXVILLE, LLC
GOV
CHAMPAIGN, LLC
GOV
SARASOTA, LLC
GOV
MONROE, LLC
RP
OKLAHOMA CITY LLC
RP
FT LAUDERDALE LLC
▇▇
▇▇▇▇▇▇▇▇ LLC
By: HC
Government Realty Holdings, L.P., the manager of each of the
foregoing
By: HC
Government Realty Trust, Inc., its general partner
By: /s/
▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇
Title:
Chief Executive Officer
|
155
|
|
ADMINISTRATIVE
AGENT:
KEYBANK
NATIONAL ASSOCIATION,
as
Administrative Agent
By: /s/
▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇
Title:
Chief Executive Officer
|
156
|
|
LENDERS:
KEYBANK
NATIONAL ASSOCIATION,
as
Lender
By: /s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Assistant Vice President
|
157
SCHEDULE 1.1
Consolidated
EBITDA Addbacks
●
Costs and expenses
related to litigation involving the Loan Parties and their
consolidated Subsidiaries, including indemnification obligations of
the Parent Guarantor in connection therewith; provided that the aggregate
amount of the addback under this clause shall not exceed
$1,000,000.
●
Costs and expenses
related to termination of the Holmwood Management Agreement;
provided that the
aggregate amount of the addback under this clause shall not exceed
(a) to the extent paid in cash, $1,750,000 or (b) to the extent
paid in stock, the actual amount paid in stock.
●
Costs and expenses
for non-recurring asset management services paid to the Loan
Parties’ and their Subsidiaries’ former asset manager;
provided that the
aggregate amount of the addback under this clause shall not exceed
$544,000.
●
Costs and expenses
related to termination of the property management agreements with
Holmwood Capital Management, LLC; provided that the aggregate
amount of the addback under this clause shall not exceed
$275,000.
●
Costs and expenses
for non-recurring property management services paid to the Loan
Parties’ and their Subsidiaries’ former property
managers; provided that the aggregate amount of the addback under
this clause shall not exceed $300,000.
●
Costs and expenses
related to non-recurring SG&A (including but not limited to,
(a) marketing, travel and conference expenses related to Parent
Guarantor’s Reg A offering, (b) unaccrued legal fees at
closing of the initial closing of the HCM Mezzanine Debt and the
issuance of Series B Preferred Stock by the Parent Guarantor, (c)
reimbursement of legal fees of the Borrower’s prior mezzanine
lender, and (d) preparation of fairness opinions); provided that the aggregate
amount of the addback under this clause shall not exceed
$500,000.
SCHEDULE 2
Eligible
Borrowing Base Properties
|
ELIGIBLE PROPERTIES:
|
OWNER NAME
|
|
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
GOV FBI
▇▇▇▇▇▇▇ City, LLC
|
|
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
|
GOV
SILT, LLC
|
|
▇▇▇ ▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
GOV
Moore SSA, LLC
|
|
▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
GOV
Lawton SSA, LLC
|
|
▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
GOV
Lakewood DOT, LLC
|
|
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
GOV Ft.
▇▇▇▇▇, LLC
|
|
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
GOV
Norfolk, LLC
|
|
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
GOV San
Antonio, LLC
|
|
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
GOV
▇▇▇▇▇▇▇▇▇▇, LLC
|
|
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
GOV
Knoxville, LLC
|
|
▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
GOV
Champaign, LLC
|
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
GOV
Sarasota, LLC
|
|
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
GOV
Monroe, LLC
|
|
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇
|
RP
Oklahoma City LLC1
|
|
▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
RP Ft
Lauderdale LLC2
|
|
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
▇▇
▇▇▇▇▇▇▇▇ LLC3
|
1 Shortly post-closing, the legal name of RP
Oklahoma City LLC will be changed to GOV Oklahoma City,
LLC.
2 Shortly post-closing, the legal name of RP Ft
Lauderdale LLC will be changed to GOV Ft. Lauderdale,
LLC.
3 Shortly post-closing, the legal name of ▇▇
▇▇▇▇▇▇▇▇ LLC will be changed to GOV ▇▇▇▇▇▇▇▇,
LLC.
Schedule 3
Revolving
Commitment Amount and Commitment Percentage
|
Name of Lender:
|
Revolving Commitment Amount
|
Commitment Percentage
|
|
KeyBank
National Association
|
$60,000,000
|
100%
|
|
|
|
|
|
|
|
|
|
Total:
|
$60,000,000
|
100%
|
SCHEDULE 6.1(A)
Indebtedness
to be Paid Off at Closing
Set
forth below is a true, accurate and complete list of the
Indebtedness of the Loan Parties to be paid off at closing. Upon
the discharge of such Indebtedness set forth below there shall not
be any other Indebtedness of the Loan Parties except for such
Indebtedness permitted pursuant to Section 10.3 of the Credit
Agreement.
1.
Promissory Note
dated as of September 21, 2017 made by GOV SILT, LLC in favor of
Coastal Federal Credit Union, in the original principal amount of
$2,750,000.00.
2.
Promissory Note
dated as of July 11, 2017 made by GOV Norfolk, LLC in favor of
Coastal Federal Credit Union, in the original principal amount of
$10,875,000.00.
3.
Promissory Note
dated as of July 25, 2017 made by GOV Montgomery, LLC in favor of
Coastal Federal Credit Union, in the original principal amount of
$3,530,000.
4.
Promissory Note
dated as of December 21, 2018 made by GOV Montgomery, LLC in favor
of Coastal Federal Credit Union, in the original principal amount
of $950,000.
5.
Promissory Note
dated as of July 27, 2018 made by GOV Knoxville, LLC in favor of
Coastal Federal Credit Union, in the original principal amount of
$5,360,000.
6.
Promissory Note
dated as of August 30, 2018 made by GOV Champaign, LLC in favor of
Coastal Federal Credit Union, in the original principal amount of
$2,580,000.
7.
Promissory Note
dated as of October 15, 2018 made by GOV Sarasota, LLC in favor of
Coastal Federal Credit Union, in the original principal amount of
$8,250,000.00.
8.
Loan Agreement
dated as of March 25, 2015 by and among GOV FBI ▇▇▇▇▇▇▇ City, LLC,
GOV CBP Cape Canaveral and South State Bank (as
successor-in-interest to Park Sterling Bank).
9.
Real Estate Term
Note dated as of May 1, 2019 made by GOV Monroe, LLC in favor of
▇▇▇▇ Partnership Fund, L.P., in the original principal amount of
$2,550,000.00.
10.
Real Estate Term
Note dated as of June 5, 2019 made by GOV San Antonio, LLC in favor
of ▇▇▇▇ Partnership Fund, L.P., in the original principal amount of
$5,000,000.00; Guaranteed by HC Gov Realty Holdings, L.P. pursuant
to that certain Guaranty Agreement dated as of June 5,
2019.
11.
Indebtedness made
by RP Ft Lauderdale LLC in favor of Cadence Bank, N.A. (as
successor by merger to State Bank and Trust Company).
12.
Indebtedness made
by ▇▇ ▇▇▇▇▇▇▇▇ LLC in favor of Cadence Bank, N.A. (as successor by
merger to State Bank and Trust Company).
SCHEDULE 7.2
Organizational
Structure Chart
Part
I
(iv)
|
Loan
Party
|
Subsidiary(ies)
|
Jurisdiction
of Organization of Subsidiary
|
Nature
and Percentage of Equity Interests of Subsidiary owned by Loan
Party
|
|
Holmwood
Portfolio Holdings, LLC
|
DE
|
100%
membership interests
|
|
|
HC
Government Realty Holdings, L.P.
|
DE
|
144,500
7% Series A Cumulative Convertible Preferred Units
1,180,000 10%
Series B Cumulative Convertible Preferred Units
1,407
Common Units
|
|
|
Holmwood
Portfolio Holdings, LLC
|
HC
Government Realty Holdings, L.P.
|
DE
|
1,405,634
Common Units
|
|
HC
Government Realty Holdings, L.P.
|
GOV FBI
▇▇▇▇▇▇▇ City, LLC
|
DE
|
100%
membership interests
|
|
GOV CBP
Cape Canaveral, LLC
|
DE
|
100%
membership interests
|
|
|
GOV
SILT, LLC
|
DE
|
100%
membership interests
|
|
|
GOV
▇▇▇▇▇ SSA, LLC
|
DE
|
100%
membership interests
|
|
|
GOV
Lawton SSA, LLC
|
DE
|
100%
membership interests
|
|
|
GOV
Lakewood DOT, LLC
|
DE
|
100%
membership interests
|
|
|
GOV Ft.
▇▇▇▇▇, LLC
|
DE
|
100%
membership interests
|
|
|
GOV San
Antonio, LLC
|
DE
|
100%
membership interests
|
|
|
GOV
Montgomery, LLC
|
DE
|
100%
membership interests
|
|
|
GOV
Knoxville, LLC
|
DE
|
100%
membership interests
|
|
|
GOV
Champaign, LLC
|
DE
|
100%
membership interests
|
|
|
GOV
Sarasota, LLC
|
DE
|
100%
membership interests
|
|
|
GOV
Monroe, LLC
|
DE
|
100%
membership interests
|
|
|
RP
Oklahoma City LLC
|
GA
|
100%
membership interests
|
|
|
RP Ft
Lauderdale LLC
|
GA
|
100%
membership interests
|
|
|
▇▇
▇▇▇▇▇▇▇▇ LLC
|
GA
|
100%
membership interests
|
|
|
HC
Government Realty Holdings, L.P.
|
GOV
PSL, LLC
|
DE
|
100%
CMBS Interest (as defined below)
|
|
GOV
Lorain, LLC
|
DE
|
100%
CMBS Interest (as defined below)
|
|
|
GOV
Jonesboro, LLC
|
DE
|
100%
CMBS Interest (as defined below)
|
“CMBS
Interest” means all right, title and interest in and
to any and all profits, losses and distributed cash flow, if any,
of such entity, as well as all of the other benefits and burdens of
ownership for federal income tax purposes; provided, that legal ownership of such
entity is held by Holmwood Capital, LLC, a Delaware limited
liability company (the “Contributor”), pursuant
to that certain Contribution Agreement dated as of March 31, 2016,
by and between the Contributor and HC Government Realty Holdings,
L.P., as amended by that certain First Amendment to Contribution
Agreement dated as of June 10, 2016 and Second Amendment to
Contribution Agreement dated as of May 26, 2017.
|
|
||
|
Series
B Preferred Shareholder
|
Percentage
of Series B Preferred
|
Schedule
7.2 Party Control Person Information
|
|
The
Vanderbilt University
|
42.37%
|
Under
an investment management agreement between this entity and HPCM (as
defined below)**, HPCM has the authority to direct investment
decisions on behalf of this entity with respect to this
investment.
|
|
▇▇▇▇
Medical Office Building Fund, L.P.
|
11.02%
|
This
entity is managed by HPCM and HPCA (as defined below) is this
entity’s general partner.
|
|
HG
Holdings, Inc.
|
16.95%
|
▇▇.
▇▇▇▇ (as defined below) is the Chief Executive Officer and serves
as chairman on the board of directors of this entity.
|
|
International
Church of the Foursquare Gospel
|
3.18%
|
Under a
letter agreement between this entity and HPCM, this entity is bound
to vote as directed by HPCM and HPCM has been granted a proxy to
cast such votes.
|
|
The
Foursquare Foundation
|
18.01%
|
Under a
letter agreement between this entity and HPCM, this entity is bound
to vote as directed by HPCM and HPCM has been granted a proxy to
cast such votes.
|
|
Trade
Capital, LLC
|
2.12%
|
Under a
letter agreement between this entity and HPCM, this entity is bound
to vote as directed by HPCM and HPCM has been granted a proxy to
cast such votes.
|
|
Amicus
Investments, LLC
|
1.06%
|
Under a
letter agreement between this entity and HPCM, this entity is bound
to vote as directed by HPCM and HPCM has been granted a proxy to
cast such votes.
|
|
FDT,
LLC
|
1.06%
|
Under a
letter agreement between this entity and HPCM, this entity is bound
to vote as directed by HPCM and HPCM has been granted a proxy to
cast such votes.
|
|
▇▇▇▇▇▇▇▇
Family Heirs, LLC
|
2.12%
|
Under a
letter agreement between this entity and HPCM, this entity is bound
to vote as directed by HPCM and HPCM has been granted a proxy to
cast such votes.
|
|
TAWJE,
LLC
|
2.12%
|
Under a
letter agreement between this entity and HPCM, this entity is bound
to vote as directed by HPCM and HPCM has been granted a proxy to
cast such votes.
|
|
Total Series B Preferred
|
100.00%
|
|
**▇▇▇▇▇▇
▇. ▇▇▇▇ ▇▇ (the “Schedule 7.2 Party Control
Person” or “▇▇. ▇▇▇▇”) is the sole
manager of (i) ▇▇▇▇ Partnership Capital Management, LLC
(“HPCM”), which is the
investment manager of ▇▇. ▇▇▇▇’▇ funds and certain separately
managed accounts, and (ii) ▇▇▇▇ Partnership Capital Advisors, LLC
(“HPCA”), which is the
general partner of ▇▇. ▇▇▇▇’▇ funds. HPCM and HPCA together
constitute the Schedule 7.2 Party.
 |
 |
SCHEDULE 7.2
Part
II
None.
SCHEDULE 7.2
Part
III
None.
SCHEDULE 7.6
Real
Estate Assets; Permitted Liens; Insurance
Part
I
|
Real
Property Address
|
Loan
Party or Subsidiary
|
Owned
or Leased
|
Ownership
Interest
|
Total
Asset Value
|
|
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
GOV FBI
▇▇▇▇▇▇▇ City, LLC
|
Owned
|
Fee
Simple
|
$3,560,000
|
|
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
GOV CBP
Cape Canaveral, LLC
|
Leased
|
Ground
Lease
|
$5,700,000
|
|
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
|
GOV
SILT, LLC
|
Owned
|
Fee
Simple
|
$4,470,000
|
|
▇▇▇ ▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
GOV
▇▇▇▇▇ SSA, LLC
|
Owned
|
Fee
Simple
|
$5,400,000
|
|
▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
GOV
Lawton SSA, LLC
|
Owned
|
Fee
Simple
|
$1,900,000
|
|
▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
GOV
Lakewood DOT, LLC
|
Owned
|
Fee
Simple
|
$5,240,000
|
|
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
GOV Ft.
▇▇▇▇▇, LLC
|
Owned
|
Fee
Simple
|
$4,500,000
|
|
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
GOV
Norfolk, LLC
|
Owned
|
Fee
Simple
|
$14,800,000
|
|
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
GOV San
Antonio, LLC
|
Owned
|
Fee
Simple
|
$10,400,000
|
|
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
GOV
▇▇▇▇▇▇▇▇▇▇, LLC
|
Owned
|
Fee
Simple
|
$6,750,000
|
|
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
GOV
Knoxville, LLC
|
Owned
|
Fee
Simple
|
$7,400,000
|
|
▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
GOV
Champaign, LLC
|
Owned
|
Fee
Simple
|
$3,630,000
|
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
GOV
Sarasota, LLC
|
Owned
|
Fee
Simple
|
$11,000,000
|
|
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
GOV
Monroe, LLC
|
Owned
|
Fee
Simple
|
$5,200,000
|
|
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
RP
Oklahoma City LLC
|
Owned
|
Fee
Simple
|
$5,500,000
|
|
▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
RP Ft
Lauderdale LLC
|
Owned
|
Fee
Simple
|
$6,700,000
|
|
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
▇▇
▇▇▇▇▇▇▇▇ LLC
|
Owned
|
Fee
Simple
|
$5,900,000
|
|
▇▇▇
▇▇▇▇ ▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
GOV
Lorain, LLC
|
Owned*
|
Fee
Simple
|
$4,008,691
|
|
▇▇▇
▇.▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
GOV
PSL, LLC
|
Owned*
|
Fee
Simple
|
$5,284,446
|
|
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
GOV
Jonesboro, LLC
|
Owned*
|
Fee
Simple
|
$7,215,539
|
|
▇▇▇ ▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇-▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
Leased
|
Space
Lease
|
N/A
|
* HC Government Realty Holdings, L.P. is the holder of CMBS
Interests (as defined in Schedule 7.2 Part I) in these
Subsidiaries.
SCHEDULE 7.6
Part
II
|
Type of
insurance
|
Issuer
|
Coverage
|
Deductible
|
|
Property
- Building
|
Great
Northern Ins. Co.
|
$88,621,537
|
$5,000
|
|
Property
– Bus. Personal Property
|
Great
Northern Ins. Co.
|
$30,000
|
$5,000
|
|
Property
– Business Income
|
Great
Northern Ins. Co.
|
$12,859,846
|
24 hour
waiting period
|
|
General
Liability
|
Great
Northern Ins. Co.
|
$1,000,000
per occurrence
|
$0
|
|
Hired/Non-owned
Automobile
|
Federal
Ins. Co.
|
$1,000,000
|
N/A
|
|
Umbrella
|
Federal
Ins. Co.
|
$5,000,000
|
$0
|
|
Pollution
|
Illinois
Union Ins. Co.
|
$3,000,000
|
$25,000
|
SCHEDULE 7.7
Existing
Indebtedness
1.
HCM Mezzanine Debt
(Unsecured Indebtedness).
2.
Commercial
Insurance Premium Finance and Security Agreement, accepted as of
January 28, 2019, by and between HC Government Realty Trust, Inc.
and Bank Direct Capital Finance, a division of Texas Capital Bank,
N.A., in an original principal amount of $134,000 (Unsecured
Indebtedness).
3.
Loan Agreement
dated July 22, 2013, by and among GOV Lorain, LLC, GOV PSL, LLC,
GOV Jonesboro, LLC and Starwood Mortgage Capital LLC, in an
original principal amount of $10,700,000 (Secured
Indebtedness).
4.
Reference is hereby
made to Schedule 6.1(a) with respect to Indebtedness to be repaid
on the Funding Date.
SCHEDULE 7.8
Material
Contracts
Part
I
1.
Management
Agreement dated as of October 10, 2019 by and between GOV FBI
▇▇▇▇▇▇▇ City, LLC and ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Properties, LTD.
2.
Management
Agreement dated as of October 10, 2019 by and between GOV CBP Cape
Canaveral, LLC and ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Properties, LTD.
3.
Management
Agreement dated as of October 10, 2019 by and between GOV SILT, LLC
and Integrated Mountain Management.
4.
Management
Agreement dated as of October 10, 2019 by and between GOV Norfolk,
LLC and ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Properties, LTD.
5.
Management
Agreement dated as of October 10, 2019 by and between GOV San
Antonio, LLC and ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Properties, LTD.
6.
Management
Agreement dated as of October 10, 2019 by and between GOV
Montgomery, LLC and LBAM-GSA, LLC.
7.
Independent
Contractor Service Agreement dated as of October 10, 2019 by and
between GOV Knoxville, LLC and ▇▇ ▇▇▇▇▇▇▇▇, LLC.
8.
Management
Agreement dated as of October 10, 2019 by and between GOV
Champaign, LLC and ▇.▇. ▇▇▇▇▇▇▇▇, LLC.
9.
Management
Agreement dated as of October 10, 2019 by and between GOV Sarasota,
LLC and ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Properties, LTD.
10.
Management
Agreement dated as of October 10, 2019 by and between GOV Monroe,
LLC and Commercial Property Management & Maintenance
LLC.
11.
Management
Agreement dated as of October 17, 2019 by and between GOV ▇▇▇▇▇
SSA, LLC and ▇▇▇▇▇ Property Management, LLC.
12.
Management
Agreement dated as of October 17, 2019 by and between GOV Lawton
SSA, LLC and ▇▇▇▇▇ Property Management, LLC.
13.
Independent
Contractor Service Agreement dated as of October 17, 2019 by and
between GOV Lakewood DOT, LLC and ▇▇ ▇▇▇▇▇▇▇▇, LLC.
14.
Management
Agreement dated as of October 17, 2019 by and between GOV Ft.
▇▇▇▇▇, LLC and ▇▇▇▇▇ Property Management, LLC.
15.
Management
Agreement dated as of October 22, 2019 by and between RP Oklahoma
City LLC and ▇▇▇▇▇▇ Properties, LLC.
16.
Management
Agreement dated as of October 22, 2019 by and between RP Ft
Lauderdale LLC and ▇▇▇▇▇▇ Properties, LLC.
17.
Management
Agreement dated as of October 22, 2019 by and between GOV ▇▇▇▇▇▇▇▇
LLC and ▇▇▇▇▇▇ Properties, LLC.
18.
Holmwood Management
Agreement; provided that such agreement shall terminate in
accordance with its terms on March 31, 2020.
SCHEDULE 7.9
Litigation
1.
On January 18,
2019, LBA-GSA Montgomery, LLC (“Montgomery Seller”) and
an affiliate of Montgomery Seller (collectively, the
“Montgomery
Claimants”) filed a complaint against the Borrower and
GOV Montgomery, LLC (“GOV Montgomery”, and
together with the Borrower, the “Montgomery Defendants”),
claiming the Montgomery Defendants owe additional amounts under a
purchase and sale agreement dated April 27, 2017, with respect to
the acquisition of and improvements to real estate in Montgomery,
Alabama. The Montgomery Claimants’ complaint includes five
counts: breach of implied contract; declaratory judgment;
reformation of contract; unjust enrichment and quantum meruit. The
Montgomery Defendants and Montgomery Claimants are currently
negotiating a settlement and the Montgomery Defendants do not
anticipate liability with respect to this matter in excess of
$500,000.
2.
On March 15, 2019,
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, a former director of the Parent Guarantor,
and his affiliate, ▇▇▇▇▇ Hill Holding, LLC (collectively, the
“Claimants”), each of whom
is a stockholder in the Parent Guarantor, filed a complaint in the
United States District Court for the Middle District of Florida
(the “Court”) against the
Parent Guarantor, four of its former directors, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇ (collectively, the
“Board
Defendants”), and the Parent Guarantor’s former
President, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. The complaint alleges that the
Board Defendants’ actions in approving a recapitalization
transaction constituted illegal, oppressive and/or fraudulent acts
as well as breaches of the Board Defendants’ fiduciary
duties. The Claimants requested that the Court order the
dissolution of the Parent Guarantor, determine that the approval of
the recapitalization transaction was improper, and award an
unstated amount of monetary damages against the Board Defendants.
Following motions to dismiss filed by all the defendants in the
matter, on August 21, 2019, the Court issued an Order dismissing
all claims asserted in the action. Although the Court granted the
Claimants 20 days to file an amended complaint, the deadline to
amend passed without the Claimants filing any amended complaint.
The Parent Guarantor is responsible for the legal expenses incurred
by the former officers and independent directors, up to a maximum
of $1,000,000 under the Parent Guarantor’s insurance policy.
As of June 30, 2019, the Parent Guarantor had incurred expenses
totaling $282,787.
SCHEDULE 8.5
Insurance
Requirements
(c) [attached]
SCHEDULE 8.11
Banking
Institutions and Operating Accounts for Real Estate
Assets
|
Initial
Borrowing Base Property or Potential Borrowing Base
Properties
|
Initial
BB Property Bank
|
|
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
Bank of
America, N.A.
|
|
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
Bank of
America, N.A.
|
|
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
|
Bank of
America, N.A.
Coastal
Federal Credit Union
|
|
▇▇▇ ▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
Bank of
America, N.A.
|
|
▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
Bank of
America, N.A.
|
|
▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
Bank of
America, N.A.
|
|
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
Bank of
America, N.A.
|
|
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
Bank of
America, N.A.
Coastal
Federal Credit Union
|
|
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
Bank of
America, N.A.
|
|
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
Bank of
America, N.A.
Coastal
Federal Credit Union
|
|
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
Bank of
America, N.A.
Coastal
Federal Credit Union
|
|
▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
Bank of
America, N.A.
Coastal
Federal Credit Union
|
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
Bank of
America, N.A.
Coastal
Federal Credit Union
|
|
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
Bank of
America, N.A.
|
|
▇▇▇
▇▇▇▇ ▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
Bank of
America, N.A.
|
|
▇▇▇
▇.▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
Bank of
America, N.A.
|
|
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
Bank of
America, N.A.
|
SCHEDULE 10.11
Transactions
with Affiliates
1.
The HCM Mezzanine
Debt.