United States
Securities and Exchange Commission
Washington, D.C. 20549
Form 8-K
Current Report
Pursuant to Section 13 or
15(d) of the
Securities Exchange Act of 1934
Date of report: June 30, 2015
REALTY
INCOME CORPORATION
(Exact name of registrant as
specified in its charter)
Maryland
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1-13374
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33-0580106
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(State or Other Jurisdiction of Incorporation or
Organization)
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(Commission File Number)
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(IRS Employer Identification No.)
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11995 El Camino Real, San Diego, California
92130
(Address of principal executive offices)
(858) 284-5000
(Registrant's telephone number, including
area code)
N/A
(former name or former address, if changed
since last report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
[
] Written communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
[
] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[
] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act (17 CFR 240.14d-2(b))
[
] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act (17 CFR 240.13e-4(c))
Item
1.01 Entry into a Material Definitive Agreement
On June 30, 2015, Realty Income Corporation (the
“Company”) entered into a Credit Agreement (the “Credit Agreement”), among the
Company, as Borrower, the Lenders party thereto, Wells Fargo Bank, National Association,
as Administrative Agent, Wells Fargo Securities, LLC, Merrill Lynch, Pierce,
Fenner & Smith Incorporated, and RBC Capital Markets, as Joint Lead
Arrangers and Joint Bookrunners, Bank of America, N.A., Royal Bank of Canada,
and Regions Bank, as Syndication Agents, and JPMorgan Chase Bank, N.A. and U.S.
Bank National Association, as Documentation Agents. The term of the Credit
Agreement will begin on June 30, 2015 and replace the Company’s existing $1.5 billion
revolving credit facility. The Credit Agreement provides for a $2.0 billion
senior unsecured revolving credit facility maturing June 30, 2019, unless
extended as set forth in the Credit Agreement. Borrowings under the Credit
Agreement bear interest at the LIBOR rate or the Base Rate, each as defined in
the Credit Agreement, plus an Applicable Margin, as defined in the Credit
Agreement, based on the Company’s credit ratings. The initial Applicable
Margin equals 0.90% per annum for LIBOR loans based on the Company’s current
investment grade credit ratings. An applicable commitment fee is payable on
the amount of the Commitments, as defined in the Credit Agreement, based on the
Company’s credit ratings. The initial applicable commitment fee equals 0.15%
per annum based on the Company’s current investment grade credit ratings.
The Credit Agreement also provides for a $250
million senior unsecured delayed draw term loan maturing June 30, 2020. The
Company is permitted to request up to four borrowings under the delayed draw
term loan facility, which may be drawn from June 30, 2015 to but excluding
December 30, 2015. Borrowings under the term loan bear interest at the LIBOR
rate or the Base Rate, each as defined in the Credit Agreement, plus an
Applicable Margin, as defined in the Credit Agreement, based on the Company’s
current investment grade credit ratings. The initial Applicable Margin equals
0.95% per annum for LIBOR loans based on the Company’s credit ratings. As described in the copy of
the Credit Agreement filed as Exhibit 10.1 hereto, the Credit Agreement
contains customary and other affirmative covenants, including financial
reporting requirements, negative covenants, including maintenance of certain
financial requirements, and other customary events of default.
The foregoing description of the Credit Agreement is not, and
does not purport to be, complete and is qualified in its entirety by reference
to a copy of the Credit Agreement filed as Exhibit 10.1 hereto and incorporated
herein by reference.
Item 2.03 Creation of
a Direct Financial Obligation or an Obligation under an Off-Balance Sheet
Arrangement of a Registrant
The information set forth in Item 1.01 is incorporated herein by
reference.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits
10.1 Credit Agreement among
the Company, as Borrower, the Lenders party thereto, Wells Fargo Bank, National
Association, as Administrative Agent, Wells Fargo Securities, LLC, Merrill Lynch,
Pierce, Fenner & Smith Incorporated, and RBC Capital Markets, as Joint Lead
Arrangers and Joint Bookrunners, Bank of America, N.A., Royal Bank of Canada
and Regions Bank, as Syndication Agents, and JPMorgan Chase Bank, N.A. and U.S.
Bank National Association, as Documentation Agents.
SIGNATURE
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
Dated: July 2, 2015
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REALTY INCOME CORPORATION
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By:
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/s/ MICHAEL R. PFEIFFER
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Michael R. Pfeiffer
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Executive Vice President, General Counsel and Secretary
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INDEX
TO EXHIBITS
Exhibit No. Description
10.1 Credit
Agreement among the Company, as Borrower, the Lenders party thereto, Wells
Fargo Bank, N.A., as Administrative Agent, Wells Fargo Securities, LLC, Merrill
Lynch, Pierce, Fenner & Smith Incorporated, and RBC Capital Markets, as
Joint Lead Arrangers and Joint Bookrunners, Bank of America, N.A., Royal Bank
of Canada and Regions Bank, as Syndication Agents, and JPMorgan Chase Bank,
N.A. and U.S. Bank National Association, as Documentation Agents.
.
CREDIT AGREEMENT
Dated as of June 30, 2015
by and among
REALTY INCOME CORPORATION,
as Borrower,
The financial institutions party hereto
and their assignees under
Section 13.5.,
as Lenders,
and
WELLS FARGO Bank, National
Association,
as Administrative Agent
______________________________________________________
WELLS FARGO SECURITIES, LLC,
MERRILL LYNCH, PIERCE, FENNER
& SMITH, INCORPORATED
and
RBC CAPITAL MARKETS,
as Joint Lead Arrangers
and
Joint Bookrunners,
BANK OF AMERICA, N.A.,
ROYAL BANK OF CANADA,
and
REGIONS BANK,
as Syndication Agents,
and
JPMorgan chase bank, n.a.,
and
U.S. Bank National
Association,
as Documentation Agents
TABLE OF CONTENTS
Article I. Definitions.................................................................................................... 1
Section 1.1. Definitions.................................................................................. 1
Section 1.2. General; References to Pacific Time.......................................... 31
Article II. Credit Facility.............................................................................................. 32
Section 2.1. Revolving Loans......................................................................... 32
Section 2.2. Term Loans................................................................................. 33
Section 2.3. Bid Rate Loans........................................................................... 34
Section 2.4. Letters of Credit.......................................................................... 37
Section 2.5. Swingline Loans.......................................................................... 43
Section 2.6. Rates and Payment of Interest on Loans.................................... 45
Section 2.7. Number of Interest Periods......................................................... 46
Section 2.8. Repayment of Loans................................................................... 46
Section 2.9. Prepayments................................................................................ 46
Section 2.10. Continuation.............................................................................. 47
Section 2.11. Conversion................................................................................ 47
Section 2.12. Notes......................................................................................... 48
Section 2.13. Voluntary Reductions of the Commitments.............................. 48
Section 2.14. Extension of Revolving Termination Date................................ 49
Section 2.15. Expiration Date of Letters of Credit Past Revolving
Commitment Termination................................................................... 49
Section 2.16. Amount Limitations.................................................................. 49
Section 2.17. Increase in Revolving Commitments........................................ 50
Section 2.18. Funds Transfer Disbursements.................................................. 51
Article III. Payments, Fees and Other General Provisions............................................ 51
Section 3.1. Payments................................................................................... 51
Section 3.2. Pro Rata Treatment.................................................................... 52
Section 3.3. Sharing of Payments, Etc........................................................... 53
Section 3.4. Several Obligations.................................................................... 53
Section 3.5. Fees............................................................................................ 53
Section 3.6. Computations............................................................................. 55
Section 3.7. Usury......................................................................................... 55
Section 3.8. Statements of Account; Bill Lead Date Request......................... 55
Section 3.9. Defaulting Lenders..................................................................... 56
Section 3.10. Taxes....................................................................................... 59
Article IV. Eligibility of Properties............................................................................ 63
Section 4.1. Eligibility of Properties.............................................................. 63
Section 4.2. Termination of Designation as Unencumbered Asset................ 64
Article V. Yield Protection, Etc.................................................................................. 64
Section 5.1. Additional Costs; Capital Adequacy.......................................... 64
Section 5.2. Suspension of LIBOR Loans and LIBOR Margin Loans........... 66
Section 5.3. Illegality..................................................................................... 67
Section 5.4. Compensation............................................................................. 67
Section 5.5. Treatment of Affected Loans...................................................... 67
Section 5.6. Affected Lenders........................................................................ 68
Section 5.7. Change of Lending Office........................................................... 69
Section 5.8. Assumptions Concerning Funding of LIBOR Loans and
LIBOR Margin Loans......................................................................... 69
Article VI. Conditions Precedent.................................................................................. 69
Section 6.1. Initial Conditions Precedent......................................................... 69
Section 6.2. Conditions Precedent to All Loans and Letters of Credit............. 71
Article VII. Representations and Warranties................................................................ 72
Section 7.1. Representations and Warranties.................................................. 72
Section 7.2. Survival of Representations and Warranties, Etc......................... 78
Article VIII. Affirmative Covenants............................................................................. 79
Section 8.1. Preservation of Existence and Similar Matters............................ 79
Section 8.2. Compliance with Applicable Law............................................... 79
Section 8.3. Maintenance of Property............................................................. 79
Section 8.4. Conduct of Business.................................................................... 79
Section 8.5. Insurance..................................................................................... 79
Section 8.6. Payment of Taxes and Claims..................................................... 80
Section 8.7. Books and Records; Inspections.................................................. 80
Section 8.8. Use of Proceeds........................................................................... 80
Section 8.9. Environmental Matters................................................................ 81
Section 8.10. Further Assurances.................................................................... 81
Section 8.11. Material Contracts..................................................................... 81
Section 8.12. REIT Status................................................................................ 81
Section 8.13. Exchange Listing....................................................................... 81
Section 8.14. Guarantors.................................................................................. 82
Article IX. Information................................................................................................. 82
Section 9.1. Quarterly Financial Statements.................................................... 83
Section 9.2. Year‑End Statements.................................................................. 83
Section 9.3. Compliance Certificate................................................................ 83
Section 9.4. Other Information........................................................................ 83
Section 9.5. Electronic Delivery of Certain Information.................................. 85
Section 9.6. Public/Private Information............................................................ 86
Section 9.7. USA Patriot Act Notice; Compliance............................................ 86
Article X. Negative Covenants....................................................................................... 86
Section 10.1. Financial Covenants.................................................................... 87
Section 10.2. Negative Pledge........................................................................... 88
Section 10.3. Restrictions on Intercompany Transfers....................................... 88
Section 10.4. Merger, Consolidation, Sales of Assets and Other Arrangements... 89
Section 10.5. Plans............................................................................................ 91
Section 10.6. Fiscal Year................................................................................... 91
Section 10.7. Modifications of Organizational Documents and Material
Contracts.................................................................................................91
Section 10.8. Transactions with Affiliates......................................................... 91
Section 10.9. Derivatives Contracts.................................................................. 91
Article XI. Default............................................................................................................ 92
Section 11.1. Events of Default.......................................................................... 92
Section 11.2. Remedies Upon Event of Default.................................................. 95
Section 11.3. [Reserved]................................................................................. 96
Section 11.4. Marshaling; Payments Set Aside............................................... 96
Section 11.5. Allocation of Proceeds.............................................................. 96
Section 11.6. Letter of Credit Collateral Account........................................... 97
Section 11.7. Performance by Administrative Agent...................................... 98
Section 11.8. Rights Cumulative..................................................................... 99
Article XII. The Administrative Agent......................................................................... 99
Section 12.1. Appointment and Authorization................................................ 99
Section 12.2. Administrative Agent’s Reliance.............................................. 100
Section 12.3. Notice of Events of Default...................................................... 101
Section 12.4. Administrative Agent as Lender............................................... 101
Section 12.5. Approvals of Lenders............................................................... 101
Section 12.6. Indemnification of Administrative Agent................................. 102
Section 12.7. Lender Credit Decision, Etc..................................................... 102
Section 12.8. Successor Administrative Agent.............................................. 103
Section 12.9. Titled Agents............................................................................ 104
Article XIII. Miscellaneous......................................................................................... 105
Section 13.1. Notices..................................................................................... 105
Section 13.2. Expenses.................................................................................. 107
Section 13.3. Setoff....................................................................................... 108
Section 13.4. Litigation; Jurisdiction; Other Matters; Waivers...................... 108
Section 13.5. Successors and Assigns........................................................... 109
Section 13.6. Amendments and Waivers....................................................... 114
Section 13.7. Nonliability of Administrative Agent and Lenders.................. 117
Section 13.8. Confidentiality.......................................................................... 117
Section 13.9. Indemnification........................................................................ 118
Section 13.10. Termination; Survival............................................................. 119
Section 13.11. Severability of Provisions....................................................... 119
Section 13.12. GOVERNING LAW.............................................................. 120
Section 13.13. Counterparts........................................................................... 120
Section 13.14. Obligations with Respect to Loan Parties and Subsidiaries.... 120
Section 13.15. Independence of Covenants.................................................... 120
Section 13.16. Limitation of Liability............................................................. 120
Section 13.17. Entire Agreement.................................................................... 120
Section 13.18. Construction............................................................................ 121
Section 13.19. Headings................................................................................. 121
SCHEDULE I Commitments
SCHEDULE 1.1.(A) Existing Letters of Credit
SCHEDULE 1.1.(B) List of Loan Parties
SCHEDULE 4.1. Initial Unencumbered Assets
SCHEDULE 7.1.(b) Ownership Structure
SCHEDULE 7.1.(f) Properties
SCHEDULE 7.1.(g) Indebtedness and Guaranties
SCHEDULE 7.1.(h) Material Contracts
SCHEDULE 7.1.(i) Litigation
SCHEDULE 7.1.(r) Affiliate Transactions
EXHIBIT A Form of Assignment and Assumption Agreement
EXHIBIT B Form of Bid Rate Note
EXHIBIT C Form of Designation Agreement
EXHIBIT D Form of Disbursement Instruction Agreement
EXHIBIT E Form of Guaranty
EXHIBIT F Form of Notice of Continuation
EXHIBIT G Form of Notice of Conversion
EXHIBIT H Form of Notice of Revolving Borrowing
EXHIBIT I Form of Notice of Swingline Borrowing
EXHIBIT J Form of Notice of Term Loan Borrowing
EXHIBIT K Form of Revolving Note
EXHIBIT L Form of Swingline Note
EXHIBIT M Form of Term Note
EXHIBIT N Form of Unencumbered Asset Certificate
EXHIBIT O Form of Bid Rate Quote Request
EXHIBIT P Form of Bid Rate Quote
EXHIBIT Q Form of Bid Rate Quote Acceptance
EXHIBITS R Forms of U.S. Tax Compliance Certificates
EXHIBIT S Form of Compliance Certificate
EXHIBIT T Form of Closing Certificate
THIS CREDIT AGREEMENT (this “Agreement”) dated as of June 30, 2015 by and among REALTY INCOME CORPORATION, a corporation formed under the laws of the State of Maryland (the “Borrower”), each of the financial institutions initially a signatory hereto together with their successors and assignees under Section 13.5. (the “Lenders”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent (the “Administrative Agent”), with WELLS FARGO SECURITIES, LLC, MERRILL LYNCH, PIERCE, FENNER & SMITH, INCORPORATED and RBC CAPITAL MARKETS1, as joint Lead Arrangers and joint Bookrunners (in such capacities, the “Lead Arrangers”), each of BANK OF AMERICA, N.A., ROYAL BANK OF CANADA and REGIONS BANK, as Syndication Agents (in such capacity, the “Syndication Agents”), and JPMORGAN CHASE BANK, N.A., and U.S. BANK NATIONAL ASSOCIATION, as Documentation Agents (in such capacity, the “Documentation Agents”).
WHEREAS, the Administrative Agent, the Issuing Banks, the Swingline Lender and the Lenders desire to make available to the Borrower (a) a revolving credit facility in the initial amount of $2,000,000,000, which will include a $150,000,000 swingline subfacility, a $60,000,000 letter of credit subfacility, and a competitive bid loan subfacility and (b) a $250,000,000 delayed-draw term loan facility, in each case, on the terms and conditions contained herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereto agree as follows:
Article I. Definitions
Section 1.1. Definitions.
In addition to terms defined elsewhere herein, the following terms shall have the following meanings for the purposes of this Agreement:
“Absolute Rate” has the meaning given that term in Section 2.3.(c)(ii)(C).
“Absolute Rate Auction” means a solicitation of Bid Rate Quotes setting forth Absolute Rates pursuant to Section 2.3.
“Absolute Rate Loan” means a Bid Rate Loan, the interest rate on which is determined on the basis of an Absolute Rate pursuant to an Absolute Rate Auction.
“Accession Agreement” means an Accession Agreement substantially in the form of Annex I to the Guaranty.
“Additional Costs” has the meaning given that term in Section 5.1.(b).
“Adjusted Funds From Operations” means, with respect to a Person for any period, (a) Funds From Operations of such Person for such period, plus (b) non-cash deferred note financing costs and stock compensation costs of such Person for such period, minus (c) capital expenditures paid in cash by such Person during such period. Adjusted Funds From Operations shall exclude straight-line rent leveling adjustments required by GAAP.
1 RBC Capital Markets is the brand name for the capital markets activities of Royal Bank of Canada and its affiliates.
“Administrative Agent” means Wells Fargo Bank, National Association as contractual representative of the Lenders under this Agreement, or any successor Administrative Agent appointed pursuant to Section 12.8.
“Administrative Questionnaire” means the Administrative Questionnaire completed by each Lender and delivered to the Administrative Agent in a form supplied by the Administrative Agent to the Lenders from time to time.
“Affected Lender” has the meaning given that term in Section 5.6.
“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. In no event shall the Administrative Agent or any Lender be deemed to be an Affiliate of the Borrower.
“Agreement” has the meaning set forth in the introductory paragraph hereof.
“Agreement Date” means the date as of which this Agreement is dated.
“Anti-Corruption Laws” means all Applicable Laws of any jurisdiction concerning or relating to bribery, corruption or money laundering, including without limitation, the Foreign Corrupt Practices Act of 1977, as amended.
“Anti-Terrorism Laws” has the meaning given that term in Section 7.1.(y).
“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.
“Applicable Margin” means the percentage rates set forth in the table below corresponding to the level (each a “Level”) into which the Credit Rating then falls. As of the Agreement Date, the Applicable Margins are determined based on Level 2. Any change in the Borrower’s Credit Rating which would cause the Applicable Margins to be determined based on a different Level shall be effective as of the first day of the first calendar month immediately following receipt by the Administrative Agent of written notice delivered by the Borrower in accordance with Section 9.4.(p) that the Borrower’s Credit Rating has changed; provided, however, if the Borrower has not delivered the notice required by such Section but the Administrative Agent becomes aware that the Borrower’s Credit Rating has changed, then the Administrative Agent shall give the Borrower notice of its awareness of such change (provided that failure to give such notice shall not limit the effectiveness of any adjustment of the applicable Level by the Administrative Agent in accordance with this definition) and may, in its sole discretion, adjust the Level effective as of the first day of the first calendar month following the date the Administrative Agent becomes aware that the Credit Rating has changed. The Applicable Margins shall be determined based on the Level corresponding to the lower of the highest two Credit Ratings; provided that if the highest two Credit Ratings are from S&P and Moody’s, then the Applicable Margins shall be determined based on the highest of such two Credit Ratings. During any period for which the Borrower has received a Credit Rating from only one Rating Agency, then the Applicable Margins shall be determined based on such Credit Rating so long as such Credit Rating is from either S&P or Moody’s. In any other case, the
Applicable Margins shall be determined based on Level 5. The provisions of this definition shall be subject to Section 2.6.(c).
Level |
Credit Rating |
Applicable Margin for Revolving Loans that are LIBOR Loans
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Applicable Margin for Revolving Loans that are Base Rate Loans
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Applicable Margin for Term Loans that are LIBOR Loans
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Applicable Margin for Term Loans that are Base Rate Loans
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1 |
A-/A3 (or higher) |
0.850% |
0.000% |
0.900% |
0.000% |
2 |
BBB+/Baa1 |
0.900% |
0.000% |
0.950% |
0.000% |
3 |
BBB/Baa2 |
1.000% |
0.000% |
1.100% |
0.100% |
4 |
BBB-/Baa3 |
1.200% |
0.200% |
1.350% |
0.350% |
5 |
BB+/Ba1 (or lower or unrated) |
1.550% |
0.550% |
1.750% |
0.750% |
“Applicable Revolving Facility Fee” means the percentage rate set forth in the table below corresponding to the Level at which the “Applicable Margin” is determined in accordance with the definition thereof:
Level |
Applicable Revolving Facility Fee
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1 |
0.125% |
2 |
0.150% |
3 |
0.200% |
4 |
0.250% |
5 |
0.300% |
Any change in the applicable Level at which the Applicable Margin is determined shall result in a corresponding and simultaneous change in the Applicable Revolving Facility Fee. The provisions of this definition shall be subject to Section 2.6.(c).
“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender, or (c) an entity or an Affiliate of any entity that administers or manages a Lender.
“Assignment and Assumption” means an Assignment and Assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 13.5.), and
accepted by the
Administrative Agent, in substantially the form of Exhibit A or any other
form approved by the Administrative Agent.
“Bankruptcy
Code” means the Bankruptcy Code of 1978, as amended.
“Base Rate” means, at any time, the highest of
(a) the Prime Rate, (b) the Federal Funds Rate plus 0.50% and
(c) the LIBOR Market Index Rate plus 1.0%. Each change in the Base
Rate shall take effect simultaneously with the corresponding change or changes
in the Prime Rate, the Federal Funds Rate or the LIBOR Market Index Rate (provided
that clause (c) shall not be applicable during any period in which LIBOR
is unavailable or unascertainable).
“Base
Rate Loan” means a Revolving Loan or Term Loan (or any portion thereof)
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 Multiemployer Plan and which is
maintained or otherwise contributed to by the Borrower or any Subsidiary.
“Bid
Rate Borrowing” has the meaning given that term in Section 2.3.(b).
“Bid
Rate Loan” means a loan made by a Lender under Section 2.3.(f).
“Bid
Rate Note” means a promissory note of the Borrower substantially in the
form of Exhibit B, payable to a Lender.
“Bid
Rate Quote” means an offer in accordance with Section 2.3.(c) by a
Lender to make a Bid Rate Loan with one single specified interest rate.
“Bid
Rate Quote Request” has the meaning given that term in Section 2.3.(b).
“Bill
Lead Date” has the meaning given that term in Section 3.8.(b).
“Borrower”
has the meaning set forth in the introductory paragraph hereof and shall
include the Borrower’s successors and permitted assigns.
“Borrower
Information” has the meaning given that term in Section 2.6.(c).
“Business
Day” means (a) for all purposes other than as set forth in
clause (b) below, any day (other than a Saturday, Sunday or legal holiday)
on which banks in San Francisco, California and New York, New York, are open
for the conduct of their commercial banking business, and (b) with respect
to all notices and determinations in connection with, and payments of principal
and interest on, any LIBOR Loan, or any Base Rate Loan as to which the interest
rate is determined by reference to LIBOR, any day that is a Business Day
described in clause (a) and that is also a day for trading by and between banks
in Dollar deposits in the London interbank market. Unless specifically
referenced in this Agreement as a Business Day, all references to “days” shall
be to calendar days.
“Capitalization
Rate” means 7.00%.
“Capitalized
Lease Obligations” means obligations under a lease (or other similar arrangement
conveying the right to use property) to pay rent or other similar amounts that
are required to be capitalized for financial reporting purposes in accordance
with GAAP. The amount of a Capitalized Lease Obligation
is the capitalized amount of such obligation as would be required to be
reflected on a balance sheet of the applicable Person prepared in accordance
with GAAP as of the applicable date.
“Cash
Collateralize” means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the applicable Issuing Bank or the Revolving
Lenders, as collateral for Letter of Credit Liabilities or obligations of Revolving
Lenders to fund participations in respect of Letter of Credit Liabilities, cash
or deposit account balances or, if the Administrative Agent and the applicable Issuing
Bank shall agree in their sole discretion, other credit support, in each case
pursuant to documentation in form and substance satisfactory to the
Administrative Agent and the applicable Issuing Bank. “Cash Collateral” shall
have a meaning correlative to the foregoing and shall include the proceeds of
such cash collateral and other credit support.
“Cash
Equivalents” means (a) securities issued, guaranteed or insured by the
United States of America or any of its agencies with maturities of not more
than one year from the date acquired; (b) time deposits, certificates of
deposit or bankers’ acceptances with maturities of not more than one year from
the date acquired issued by any Lender (or bank holding company owning any
Lender) or any other United States federal or state chartered commercial bank,
or a commercial bank organized under the laws of any other country which is a
member of the Organisation for Economic Cooperation and Development, or a
political subdivision of any such country, acting through a branch or agency,
which bank has capital and unimpaired surplus in excess of $500,000,000 and
which bank or its holding company has a short‑term commercial paper
rating of at least A‑2 or the equivalent by S&P or at least P‑2
or the equivalent by Moody’s; (c) reverse repurchase agreements with terms
of not more than seven days from the date acquired, for securities of the type
described in clause (a) above and entered into only with commercial banks
having the qualifications described in clause (b) above;
(d) commercial paper issued by any Lender (or bank holding company owning
any Lender) or any other Person incorporated under the laws of the United
States of America or any State thereof and rated at least A‑2 or the
equivalent thereof by S&P or at least P‑2 or the equivalent thereof
by Moody’s, in each case with maturities of not more than one year from the
date acquired; and (e) investments in money market funds which have net
assets of at least $500,000,000 and whose assets consist primarily of
securities and other obligations of the type described in clauses (a)
through (d) above.
“Class” (a) when used with respect
to a Commitment, refers to whether such Commitment is a Revolving Commitment or
Term Loan Commitment, (b) when used with respect to a Loan, refers to whether
such Loan is a Revolving Loan or a Term Loan and (c) when used with respect to a
Lender, refers to whether such Lender has a Loan or Commitment with respect to
a particular Class of Loans or Commitments.
“Commitment”
means, as to a Lender, such Lender’s Revolving Commitment or such Lender’s Term
Loan Commitment, as the context may require.
“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.
“Connection
Income Taxes” means Other Connection Taxes that are imposed on or measured
by net income (however denominated) or that are franchise Taxes or branch
profits Taxes.
“Continue”,
“Continuation” and “Continued” each refers to the continuation of
a LIBOR Loan from one Interest Period to another Interest Period pursuant to
Section 2.10.
“Control” means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of a Person, whether through the ability to exercise
voting power, by contract or otherwise. “Controlling” and “Controlled” have
meanings correlative thereto.
“Convert”,
“Conversion” and “Converted” each refers to the conversion of a
Loan of one Type into a Loan of another Type pursuant to Section 2.11.
“Credit
Event” means any of the following: (a) the making (or deemed making)
of any Loan and (b) the issuance of a Letter of Credit or the amendment of
a Letter of Credit that extends the maturity, or increases the Stated Amount, of
such Letter of Credit.
“Credit Rating” means the rating assigned by a
Rating Agency to each series of rated senior unsecured long term indebtedness
of the Borrower.
“Crest
Net Subsidiaries” means Subsidiaries of Crest Net Lease, Inc. that are
Deemed Taxable REIT Subsidiaries.
“Debtor
Relief Laws” means the Bankruptcy Code, and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization, or similar
Applicable Laws relating to the relief of debtors in the United States of
America or other applicable jurisdictions from time to time in effect.
“Deemed
Taxable REIT Subsidiary” has the meaning given that term in the definition
of the term “Taxable REIT Subsidiary”.
“Default”
means any of the events specified in Section 11.1., whether or not there
has been satisfied any requirement for the giving of notice, the lapse of time,
or both.
“Defaulting
Lender” means, subject to Section 3.9.(f), any Lender that
(a) has failed to (i) fund all or any portion of its Loans within 2
Business Days of the date such Loans were required to be funded hereunder
unless such Lender notifies the Administrative Agent and the Borrower in
writing that such failure is the result of such Lender’s determination that one
or more conditions precedent to funding (each of which conditions precedent,
together with any applicable default, shall be specifically identified in such
writing) has not been satisfied, or (ii) pay to the Administrative Agent, any
Issuing Bank, the Swingline Lender or any other Lender any other amount
required to be paid by it hereunder (including, with respect to a Revolving
Lender, in respect of its participation in Letters of Credit or Swingline
Loans) within 2 Business Days of the date when due, (b) has notified the
Borrower, the Administrative Agent, any Issuing Bank or the Swingline Lender in
writing that it does not intend to comply with its funding obligations
hereunder, or has made a public statement to that effect (unless such writing
or public statement relates to such Lender’s obligation to fund a Loan
hereunder and states that such position is based on such Lender’s determination
that a condition precedent to funding (which condition precedent, together with
any applicable default, shall be specifically identified in such writing or
public statement) cannot be satisfied), (c) has failed, within 3 Business
Days after written request by the Administrative Agent or the Borrower, to
confirm in writing to the Administrative Agent and the Borrower that it will
comply with its prospective funding obligations hereunder (provided that such
Lender shall cease to be a Defaulting Lender pursuant to this clause (c)
upon receipt of such written confirmation by the Administrative Agent and the
Borrower), or (d) has, or has a direct or indirect parent company that
has, (i) become the subject of a proceeding under any Debtor Relief Law,
or (ii) had appointed for it a receiver, custodian, conservator, trustee,
administrator, assignee for the benefit of creditors or similar Person charged
with reorganization or liquidation of its business or assets, including the
Federal Deposit Insurance Corporation or any other state or federal regulatory
authority acting in such a capacity; provided that a
Lender shall not be a Defaulting Lender solely by virtue of the ownership or
acquisition of any equity interest in that Lender or any direct or indirect
parent company thereof by a Governmental Authority so long as such ownership
interest does not result in or provide such Lender with immunity from the
jurisdiction of courts within the United States of America or from the
enforcement of judgments or writs of attachment on its assets or permit such
Lender (or such Governmental Authority) to reject, repudiate, disavow or
disaffirm any contracts or agreements made with such Lender. Any determination
by the Administrative Agent that a Lender is a Defaulting Lender under any one
or more of clauses (a) through (d) above shall be conclusive and binding
absent manifest error, and such Lender shall be deemed to be a Defaulting
Lender (subject to Section 3.9.(f)) upon delivery of written notice of
such determination to the Borrower, the Issuing Banks, the Swingline Lender and
each Lender.
“Derivatives
Contract” means a “swap agreement” as defined in Section 101 of the
Bankruptcy Code.
“Derivatives
Termination Value” means, in respect of any one or more Derivatives
Contracts, after taking into account the effect of any legally enforceable
netting agreement or provision relating thereto, (a) for any date on or after
the date such Derivatives Contracts have been terminated or closed out, the
termination amount or value determined in accordance therewith, and (b) for any
date prior to the date such Derivatives Contracts have been terminated or
closed out, the then-current mark-to-market value for such Derivatives
Contracts, determined based upon one or more mid-market quotations or estimates
provided by any recognized dealer in Derivatives Contracts (which may include
the Administrative Agent, any Lender, any Specified Derivatives Provider or any
Affiliate of any of them).
“Designated Lender” means a special
purpose corporation which is an Affiliate of, or sponsored by, a Revolving Lender,
that is engaged in making, purchasing or otherwise investing in commercial
loans in the ordinary course of its business and that issues (or the parent of
which issues) commercial paper rated at least P-1 (or the then equivalent
grade) by Moody’s or A-1 (or the then equivalent grade) by S&P that, in
either case, (a) is organized under the laws of the United States of America or
any state thereof, (b) shall have become a party to this Agreement pursuant to
Section 13.5.(g) and (c) is not otherwise a Lender.
“Designating
Lender” has the meaning given that term in Section 13.5.(g).
“Designation
Agreement” means a Designation Agreement between a Revolving Lender and a
Designated Lender and accepted by the Administrative Agent, substantially in
the form of Exhibit C or such other form as may be agreed to by such
Lender, such Designated Lender and the Administrative Agent.
“Development
Property” means a Property currently under development (i) upon which
a certificate of occupancy has not been obtained in accordance with Applicable
Law and local building and zoning ordinances and (ii) on which the
improvements (other than tenant improvements on unoccupied space) related to
the development have not been substantially completed. The term “Development
Property” shall include real property of the type described in the immediately
preceding sentence to be (but not yet) acquired by the Borrower, any Subsidiary
or any Unconsolidated Affiliate upon completion of construction pursuant to a
contract in which the seller of such real property is required to develop or
renovate prior to, and as a condition precedent to, such acquisition.
“Diageo Portfolio” means the Properties
comprised of vineyard properties as well as the winery, production, retail and
visitor center buildings of both the Sterling Vineyards winery and the Beaulieu
Vineyards (BV) winery, acquired by the Borrower and its Subsidiaries from Diageo
Chateau & Estate Wine Company.
“Disbursement
Instruction Agreement” means an agreement substantially in the form of
Exhibit D to be executed and delivered by the Borrower pursuant to Section 6.1.(a), as the same may be
amended, restated or modified from time to time with the prior written approval
of the Administrative Agent.
“Dollars”
or “$” means the lawful currency of the United States of America.
“EBITDA”
means, with respect to a Person for any
period and without duplication, the sum of (a) net income (loss) of such
Person for such period determined on a consolidated basis excluding the
following (but only to the extent included in determining net income (loss) for
such period): (i) depreciation and amortization; (ii) interest
expense; (iii) income tax expense; (iv) extraordinary or nonrecurring
items, including without limitation, gains and losses from the sale of
Properties (but not from the sale of Properties by any Taxable REIT
Subsidiary); (v) gains and losses resulting from currency exchange effects and
hedging arrangements; and (vi) equity in net income (loss) of its
Unconsolidated Affiliates; plus (b) such Person’s Ownership Share of
EBITDA of its Unconsolidated Affiliates. EBITDA shall be adjusted to remove
any impact from straight line rent leveling adjustments required under GAAP and
amortization of above and below market rent intangibles pursuant to FASB ASC
805. For purposes of this definition, nonrecurring items shall be deemed to
include, but shall not be limited to, (w) gains and losses on early
extinguishment of Indebtedness, (x) non-cash severance and other non-cash
restructuring charges, (y) transaction costs of acquisitions, capital
markets offerings, debt financings and amendments thereto not permitted to be
capitalized pursuant to GAAP and (z) non-cash impairment charges.
“Effective
Date” means the later of (a) the Agreement Date and (b) the date
on which all of the conditions precedent set forth in Section 6.1. shall
have been fulfilled or waived by all of the Lenders.
“Eligible
Assignee” means any Person that meets the requirements to be an assignee
under Section 13.5.(b)(iii), (v) and (vi) (subject to such consents, if any, as
may be required under Section 13.5.(b)(iii)).
“Eligible Ground Lease” means a ground lease containing terms and conditions
customarily required by mortgagees making a loan secured by the interest of the
holder of the leasehold estate demised pursuant to a ground lease, including
without limitation, the following: (a) a remaining term (including any
unexercised extension options exercisable at the sole option of the ground
lessee) of 30 years or more from the Agreement Date; (b) the right of the
lessee to mortgage and encumber its interest in the leased property, and to
amend the terms of any such mortgage or encumbrance, in each case, without the
consent of the lessor; (c) a customary obligation of the lessor to give
the holder of any mortgage Lien on such leased property written notice of any
defaults on the part of the lessee and agreement of such lessor that such lease
will not be terminated until such holder has had a reasonable opportunity to
cure or complete foreclosures, and fails to do so; (d) reasonably acceptable
transferability of the lessee’s interest under such lease, including ability to
sublease (provided that a provision that if a consent of such ground lessor is
required, such consent is subject to either an express reasonableness standard
or an objective financial standard for the transferee that is reasonably
satisfactory to the Administrative Agent shall be deemed acceptable);
(e) acceptable limitations on the use of the leased property; and
(f) clearly determinable rental payment terms which in no event contain
profit participation rights.
“Environmental
Claims” means any and all administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, accusations, allegations,
notices of noncompliance or violation, investigations (other than internal
reports prepared by any Person in the ordinary course of business and not in response to any third party action or request of
any kind) or proceedings relating in any way to any actual or alleged violation
of or liability under any Environmental Law or relating to any permit issued,
or any approval given, under any such Environmental Law, including, without
limitation, any and all claims by Governmental Authorities for enforcement,
cleanup, removal, response, remedial or other actions or damages, contribution,
indemnification cost recovery, compensation or injunctive relief resulting from
Hazardous Materials or arising from alleged injury or threat of injury to human
health or the environment.
“Environmental
Laws” means any Applicable Law relating to environmental protection or the
manufacture, storage, remediation, disposal or clean‑up of Hazardous
Materials including, without limitation, the following: Clean Air Act, 42
U.S.C. § 7401 et seq.; Federal Water Pollution Control Act, 33 U.S.C. § 1251 et
seq.; Solid Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act, 42 U.S.C. § 6901 et seq.; Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. § 9601 et seq.; National
Environmental Policy Act, 42 U.S.C. § 4321 et seq.; regulations of the Environmental
Protection Agency, any applicable rule of common law and any judicial
interpretation thereof relating primarily to the environment or Hazardous
Materials, and any analogous or comparable state or local laws, regulations or
ordinances that concern Hazardous Materials or protection of the environment.
“Equity
Interest” means, with respect to any Person, any share of capital stock of
(or other ownership or profit interests in) such Person, any warrant, option or
other right for the purchase or other acquisition from such Person of any share
of capital stock of (or other ownership or profit interests in) such Person,
whether or not certificated, any security convertible into or exchangeable for
any share of capital stock of (or other ownership or profit interests in) such
Person or warrant, right or option for the purchase or other acquisition from
such Person of such shares (or such other interests), and any other ownership
or profit interest in such Person (including, without limitation, partnership,
member or trust interests therein), whether voting or nonvoting, and whether or
not such share, warrant, option, right or other interest is authorized or
otherwise existing on any date of determination.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as in effect from
time to time.
“ERISA
Event” means, with respect to the ERISA Group, (a) any “reportable
event” as defined in Section 4043 of ERISA with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the
withdrawal of a member of the ERISA Group from a Plan subject to
Section 4063 of ERISA during a plan year in which it was a “substantial
employer” as defined in Section 4001(a)(2) of ERISA that results in the
imposition of liability under Section 4063 of ERISA or a cessation of
operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) the incurrence by a member of the ERISA Group of any liability
with respect to the withdrawal or partial withdrawal from any Multiemployer
Plan; (d) the incurrence by any member of the ERISA Group of any liability
under Title IV of ERISA with respect to the termination of any Plan or
Multiemployer Plan; (e) the institution of proceedings by the PBGC to
terminate a Plan or Multiemployer Plan; (f) the failure by any member of
the ERISA Group to make when due required contributions to a Multiemployer Plan
or Plan unless such failure is cured within 30 days or the filing pursuant to
Section 412(c) of the Internal Revenue Code or Section 302(c) of
ERISA of an application for a waiver of the minimum funding standard;
(g) any other event or condition that might reasonably be expected to
constitute grounds under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, any Plan or Multiemployer Plan or
the imposition of liability on any member of the ERISA Group under
Section 4069 or 4212(c) of ERISA; (h) the receipt by any member of
the ERISA Group of any notice or the receipt by any Multiemployer Plan from
any member of the ERISA Group of any notice, concerning the imposition of Withdrawal
Liability or a determination that a Multiemployer Plan is, or is reasonably expected
to be, insolvent (within the meaning of Section 4245 of ERISA), in
reorganization (within the meaning of Section 4241 of ERISA),
or in “critical” status (within the meaning of Section 432 of the Internal
Revenue Code or Section 305 of ERISA); (i) the imposition of any
liability under Title IV of ERISA, other than for PBGC premiums due but
not delinquent under Section 4007 of ERISA, upon any member of the ERISA
Group or the imposition of any Lien upon any member of the ERISA Group in favor
of the PBGC under Title IV of ERISA; or (j) a determination that a Plan
is, or is reasonably expected to be, in “at risk” status (within the meaning of
Section 430 of the Internal Revenue Code or Section 303 of ERISA).
“ERISA
Group” means the Borrower, any Subsidiary and all members of a controlled
group of corporations and all trades or businesses (whether or not
incorporated) under common control, which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section 414 of the
Internal Revenue Code.
“Event
of Default” means any of the events specified in Section 11.1.,
provided that any requirement for notice or lapse of time or any other
condition has been satisfied.
“Excluded
Subsidiary” means any Subsidiary (a) that either (i) holds title
to assets that are or are to become collateral for any Secured Indebtedness of
such Subsidiary or (ii) owns Equity Interests of another Excluded
Subsidiary but has no assets other than such Equity Interests and other assets
of nominal value incidental thereto, and (b) that is prohibited from
Guarantying the Indebtedness of any other Person pursuant to (i) any
document, instrument, or agreement evidencing such Secured Indebtedness or
(ii) a provision of such Subsidiary’s organizational documents which
provision was included in such Subsidiary’s organizational documents as a
condition to the extension of (or pursuant to the terms of) such Secured
Indebtedness. In no event shall the Borrower be considered to be an Excluded Subsidiary.
“Excluded Swap Obligation” means, with respect to any
Loan Party, any Swap Obligation if, and to the extent that, all or a portion of
the liability of such Loan Party for or the Guarantee of such Loan Party of, or
the grant by such Loan Party of a Lien to secure, such Swap Obligation (or any
liability or guarantee thereof) is or becomes illegal under the Commodity
Exchange Act or any rule, regulation or order of the Commodity Futures Trading
Commission (or the application or official interpretation of any thereof) by
virtue of such Loan Party’s failure for any reason to constitute an “eligible
contract participant” as defined in the Commodity Exchange Act and the
regulations thereunder at the time the liability for or the Guarantee of such
Loan Party or the grant of such Lien becomes effective with respect to such
Swap Obligation (such determination being made after giving effect to any
applicable keepwell, support or other agreement for the benefit of the
applicable Loan Party, including under Section 31 of the Guaranty). If a
Swap Obligation arises under a master agreement governing more than one swap,
such exclusion shall apply only to the portion of such Swap Obligation that is
attributable to swaps for which such Guarantee or Lien is or becomes illegal
for the reasons identified in the immediately preceding sentence of this
definition.
“Excluded
Taxes” means any of the following Taxes imposed on or with respect to a
Recipient or required to be withheld or deducted from a payment to a Recipient,
(a) Taxes imposed on or measured by net income (however denominated),
franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a
result of such Recipient being organized under the laws of, or having its
principal office or, in the case of any Lender, its applicable Lending Office
located in, the jurisdiction imposing such Tax (or any political subdivision
thereof) or (ii) that are Other Connection Taxes, (b) in the case of a
Recipient, U.S. federal withholding Taxes imposed on amounts payable to or for
the account of such Lender with respect to an applicable interest in a Loan or
Commitment pursuant to an Applicable Law in effect on the date on which
(i) such Recipient acquires such interest in the Loan or Commitment (other
than pursuant to an assignment request by the Borrower under Section 5.6.) or
(ii) such Recipient (if such Recipient is a Lender) changes its lending
office, except in each case to the extent that, pursuant to Section 3.10.,
amounts with respect to such Taxes were payable either to such Recipient’s
assignor immediately before such Recipient became a party hereto or to such Recipient
immediately before it changed its lending office, (c) Taxes attributable
to such Recipient’s failure to comply with Section 3.10.(g) and
(d) any Taxes imposed under FATCA.
“Existing
Credit Agreement” means that certain Amended and Restated Credit Agreement
dated as of May 10, 2012, by and among the Borrower, the financial institutions
party thereto as lenders, and Wells Fargo, as administrative agent.
“Existing Letters of Credit” means
each of the letters of credit identified on Schedule 1.1.(A), if any.
“Extended
Letter of Credit” has the meaning given that term in Section 2.4.(b).
“FASB
ASC” means the Accounting Standards Codification of the Financial
Accounting Standards Board.
“FATCA”
means Sections 1471 through 1474 of the Internal Revenue Code, as of the date
of this Agreement (or any amended or successor version that is substantively
comparable and not materially more onerous to comply with) and any current or future
regulations or official interpretations thereof and any agreements entered into
pursuant to Section 1471(b)(1) of the Internal Revenue Code and any
intergovernmental agreement between a non-U.S. jurisdiction and the United
States of America with respect to the foregoing and any law, regulation or
practice adopted pursuant to any such intergovernmental agreement.
“Federal
Funds Rate” means, for any period, a fluctuating interest rate per annum
equal for each day during such period to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published for such day (or, if such day
is not a Business Day, for the immediately preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal Funds
brokers of recognized standing selected by the Administrative Agent.
“Fee
Letter” means that certain fee letter dated as of May 22, 2015, by and among
the Borrower, the Lead Arrangers, Wells Fargo and the other parties thereto.
“Fees”
means the fees and commissions provided for or referred to in Section 3.5.
and any other fees payable by the Borrower hereunder, under the Fee Letter or under
any other Loan Document.
“Fitch”
means Fitch, Inc., and its successors.
“Fixed
Charges” means, with respect to a Person and for a given period, the sum of
(a) the Interest Expense of such Person for such period, plus
(b) the aggregate of all scheduled principal payments on Indebtedness made
by such Person during such period (excluding balloon, bullet or similar
payments of principal due upon the stated maturity of Indebtedness), plus
(c) the aggregate of all dividends paid or accrued by such Person on any
Preferred Stock during such period but excluding redemption payments or
repurchases or charges in connection with the final redemption or repurchase in
whole of any Preferred Stock, plus (d) the Reserve for Replacements
for such Person’s Properties. The Borrower’s
Ownership Share of the Fixed Charges of its Unconsolidated Affiliates will be
included when determining the Fixed Charges of the Borrower.
“Foreign Lender” means a Lender
that is resident or organized under the laws of a jurisdiction other than that
in which the Borrower is resident for tax purposes.
“Foreign
Subsidiary” means a Subsidiary not formed under the laws of the United
States of America, any state thereof or the District of Columbia.
“Fronting
Exposure” means, at any time there is a Defaulting Lender that is a
Revolving Lender, (a) with respect to each Issuing Bank, such Defaulting
Lender’s Revolving Commitment Percentage of the outstanding Letter of Credit
Liabilities attributable to such Issuing Bank other than Letter of Credit
Liabilities as to which such Defaulting Lender’s participation obligation has
been reallocated to other Revolving Lenders or Cash Collateralized by such
Defaulting Lender or by the Borrower in accordance with the terms hereof, and
(b) with respect to the Swingline Lender, such Defaulting Lender’s
Revolving Commitment Percentage of outstanding Swingline Loans other than
Swingline Loans as to which such Defaulting Lender’s participation obligation
has been reallocated to other Revolving Lenders.
“Fund”
means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course of its activities.
“Funds From Operations” means net
income available to common stockholders (computed in accordance with GAAP),
plus depreciation, amortization and impairments, but excluding gains on the
sale of investment properties from “continuing operations” and “discontinued
operations” (as indicated on the consolidated statements of income (and
accompanying notes) of the Borrower) (it being agreed that gains or losses on
sales by Crest Net Lease, Inc. and the Crest Net Subsidiaries are not
extraordinary or non-recurring and should be included in Funds From Operations)
and after adjustments for unconsolidated partnerships and joint ventures.
Adjustments for unconsolidated partnerships and joint ventures will be
calculated to reflect funds from operations on the same basis. Funds From
Operations shall be calculated consistent with the National Association of Real
Estate Investments Trusts, Inc. (“NAREIT”) as of the Agreement Date, but
without giving effect to any supplements, amendments or other modifications
promulgated after the Agreement Date.
“GAAP”
means generally accepted accounting principles in the United States of America
set forth in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board (including Statement
of Financial Accounting Standards No. 168, “The FASB Accounting Standards
Codification”) or in such other statements by such other entity as may be
approved by a significant segment of the accounting profession in the United
States of America, which are applicable to the circumstances as of the date of
determination.
“Governmental
Approvals” means all authorizations, consents, approvals, licenses and
exemptions of, registrations and filings with, and reports to, all Governmental
Authorities.
“Governmental
Authority” means any national, state or local government (whether domestic
or foreign), any political subdivision thereof or any other governmental, quasi‑governmental,
judicial, administrative, public or statutory instrumentality, authority, body,
agency, bureau, commission, board, department or other comparable authority (including,
without limitation, the Federal Deposit Insurance Corporation, the Comptroller
of the Currency or the Federal Reserve Board, any central bank or any
comparable authority) exercising executive, legislative, judicial, taxing,
regulatory or administrative powers or functions of or pertaining to government
(including any supra-national bodies such as the European Union or the European
Central Bank), or any arbitrator with authority to bind a party at law.
“Gross Asset Value” means, at a given time, the sum (without duplication)
of (a) (i) the aggregate Net Operating Income for all Properties (other
than Development Properties and land held for development) owned by the
Borrower or any of its Subsidiaries for the entire period of four consecutive
fiscal quarters of the Borrower most recently ended divided by
(ii) the Capitalization Rate, plus (b) all cash, Cash Equivalents
(excluding tenant deposits and other cash and Cash Equivalents the disposition
of which is restricted but including (x) fully refundable earnest money
deposits associated with potential acquisitions and (y) Unrestricted 1031 Cash)
and marketable securities of the Borrower and its Subsidiaries at such time, plus
(c) the current GAAP book value of all Development Properties and all land
held for development, plus (d) the purchase price paid by the
Borrower or any Subsidiary (less any amounts paid to the Borrower or such
Subsidiary as a purchase price adjustment, held in escrow, retained as a
contingency reserve, or in connection with other similar arrangements) for any
Property (other than a Development Property) acquired by the Borrower or such
Subsidiary during the immediately preceding period of four consecutive fiscal
quarters of the Borrower most recently ended, plus (e) the GAAP
book value of all Mortgage Receivables, plus (f) contractual purchase
price of Properties of the Borrower and its Subsidiaries subject to purchase
obligations, repurchase obligations, forward commitments and unfunded
obligations to the extent such obligations and commitments are included in
determinations of Total Liabilities, plus (g) the GAAP book value
(exclusive of accumulated depreciation) of the corporate headquarters of the
Borrower located at 11975/11995 El Camino Real, San Diego, California
92130 so long as the Borrower owns such Property. The Borrower’s Ownership
Share of assets held by Unconsolidated Affiliates (excluding assets of the type
described in the immediately preceding clause (b)) will be included in the
calculation of Gross Asset Value consistent with the above described treatment
for wholly owned assets. To the extent that more than (x) 30.0% of the
Gross Asset Value would be attributable to Unimproved Land, Equity Interest in
Persons that are not Subsidiaries and Mortgage Receivables, such excess shall
be excluded and (y) 15.0% of Gross Asset Value would be attributable to
Development Properties of the Borrower and its Subsidiaries, such excess shall
be excluded. For purposes of this definition, if a Property to be included in
the determination of Gross Asset Value under the immediately preceding
clause (a) has not generated Net Operating Income for the entire period of
four consecutive fiscal quarters of the Borrower most recently ended because
the Property ceased to be a Development Property during such period, then the
Net Operating Income for such Property shall be annualized for such period in a
manner acceptable to the Administrative Agent.
“Guaranteed Obligations” means, collectively,
(a) the Obligations and (b) all existing or future payment and other
obligations owing by any Loan Party under any Specified Derivatives Contract
(other than any Excluded Swap Obligation).
“Guarantor”
means any Person that is a party to the
Guaranty as a “Guarantor”.
“Guaranty”,
“Guaranteed” or to “Guarantee” as applied to any obligation means
and includes: (a) a guaranty (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), directly or
indirectly, in any manner, of any part or all of such obligation, or (b) an
agreement, direct or indirect, contingent or otherwise, and whether or not
constituting a guaranty, the practical effect of which is to assure the payment
or performance (or payment of damages in the event of nonperformance) of any
part or all of such obligation whether by: (i) the purchase of securities
or obligations, (ii) the purchase, sale or lease (as lessee or lessor) of
property or the purchase or sale of services primarily for the purpose of
enabling the obligor with respect to such obligation to make any payment or
performance (or payment of damages in the event of nonperformance) of or on
account of any part or all of such obligation, or to assure the owner of such
obligation against loss, (iii) the supplying of funds to or in any other manner
investing in the obligor with respect to such obligation, (iv) repayment
of amounts drawn down by beneficiaries of letters of credit (including Letters
of Credit), or (v) the supplying of funds to or investing in a Person on
account of all or any part of such Person’s obligation under
a Guaranty of any obligation or indemnifying or holding harmless, in any way,
such Person against any part or all of such obligation. As the context
requires, “Guaranty” shall also mean the guaranty executed and delivered pursuant
to Section 6.1. or Section 8.14. and substantially in the form of
Exhibit E.
“Hazardous
Materials” means all or any of the following: (a) substances that are
defined or listed in, or otherwise classified pursuant to, any applicable
Environmental Laws as “hazardous substances”, “hazardous materials”, “hazardous
wastes”, “toxic substances” or any other formulation intended to define, list
or classify substances by reason of deleterious properties such as
ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity, “TCLP”
toxicity, or “EP toxicity”; (b) oil, petroleum or petroleum derived
substances, natural gas, natural gas liquids or synthetic gas and drilling
fluids, produced waters and other wastes associated with the exploration, development
or production of crude oil, natural gas or geothermal resources; (c) any
flammable substances or explosives or any radioactive materials;
(d) asbestos in any form; (e) toxic mold; and (f) electrical
equipment which contains any oil or dielectric fluid containing levels of
polychlorinated biphenyls in excess of fifty parts per million.
“Indebtedness”
means, with respect to a Person, at the time of computation thereof, all of the
following (without duplication): (a) all obligations of such Person in
respect of money borrowed; (b) all obligations of such Person (other than (A)
trade debt incurred in the ordinary course of business and (B) any earnout
obligation until such obligation becomes a liability on the balance sheet of
such Person in accordance with GAAP (excluding disclosure on the notes and
footnotes thereto) and if not paid after becoming due and payable), whether or
not for money borrowed (i) represented by notes payable, or drafts
accepted, in each case representing extensions of credit, (ii) evidenced
by bonds, debentures, notes or similar instruments, or (iii) constituting
purchase money indebtedness, conditional sales contracts, title retention debt
instruments or other similar instruments, upon which interest charges are customarily
paid or that are issued or assumed as full or partial payment for property or
for services rendered; (c) Capitalized Lease Obligations of such Person;
(d) all reimbursement obligations (contingent or otherwise) of such Person
under or in respect of any letters of credit or acceptances (whether or not the
same have been presented for payment); (e) all Off‑Balance Sheet
Obligations of such Person; (f) net obligations under any Derivative
Contract in an amount equal to the Derivatives Termination Value thereof;
(g) all obligations of such Person to purchase, redeem, retire, defease or
otherwise make any payment in respect of any Mandatorily Redeemable Stock
issued by such Person or any other Person, valued at the greater of its
voluntary or involuntary liquidation preference plus accrued and unpaid
dividends; and (h) all Indebtedness of other Persons which (i) such
Person has Guaranteed or is otherwise recourse to such Person (except for
guaranties of exceptions to non-recourse liability described in the definition
of “Nonrecourse Indebtedness”) or (ii) is secured by a Lien on any
property of such Person (valued in the case of this clause (ii) at the lesser
of (A) the aggregate unpaid amount of such Indebtedness and (B) if such
Indebtedness is non-recourse, the fair market value of the property encumbered
thereby as determined by such Person in good faith). All Loans and Letter of Credit Liabilities shall
constitute Indebtedness of the Borrower.
“Indemnified
Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with
respect to any payment made by or on account of any obligation of the Borrower
or any other Loan Party under any Loan Document and (b) to the extent not
otherwise described in the immediately preceding clause (a), Other Taxes.
“Intellectual
Property” has the meaning given that term in Section 7.1.(s).
“Interest
Expense” means, with respect to a Person and for any period, (a) all
paid, accrued or capitalized interest expense (including, without limitation,
capitalized interest expense and interest expense
attributable to Capitalized Lease Obligations) of such Person and in any event
shall include all letter of credit fees and all interest expense with respect
to any Indebtedness in respect of which such Person is wholly or partially liable
whether pursuant to any repayment, interest carry, performance Guarantee or
otherwise, plus (b) to the extent not already included in the
foregoing clause (a) such Person’s Ownership Share of all paid,
accrued or capitalized interest expense for such period of Unconsolidated
Affiliates of such Person; provided, that Interest Expense shall not
include (i) capitalized interest funded from a construction loan interest
reserve account held by another lender and not included in the calculation of
cash for balance sheet reporting purposes, (ii) commitment or arrangement fees
or (iii) premiums or penalties (including, without limitation, any make-whole
payments associated with the early repayment, redemption or defeasance of
Indebtedness).
“Interest
Period” means:
(a) with
respect to each 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 ending on the numerically corresponding
day in the first, third or sixth calendar month thereafter, as the Borrower may
select in a Notice of Revolving Borrowing, Notice of Term Loan Borrowing, Notice
of Continuation or Notice of Conversion, as the case may be, except that each
Interest Period that commences on the last Business Day of a calendar month (or
on any day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall end on the last Business Day of
the appropriate subsequent calendar month; and
(b) with
respect to each Bid Rate Loan, the period commencing on the date such Bid Rate
Loan is made and ending on the numerically corresponding day (or, if there is
no numerically corresponding day, on the last Business Day) in the first,
second, third or sixth calendar month thereafter, as the Borrower may select as
provided in a Bid Rate Quote Request.
Notwithstanding
the foregoing: (i) if any Interest Period for a Class of Loans would
otherwise end after the Termination Date for such Class, such Interest Period
shall end on such Termination Date; and (ii) each Interest Period that
would otherwise end on a day which is not a Business Day shall end on the
immediately following Business Day (or, if such immediately following Business
Day falls in the next calendar month, on the immediately preceding Business
Day).
“Internal
Revenue Code” means the Internal Revenue Code of 1986, as amended.
“Investment”
means, with respect to any Person, any acquisition or investment (whether or
not of a controlling interest) by such Person, whether by means of any of the
following: (a) the purchase or other acquisition of any Equity Interest in
another Person, (b) a loan, advance or extension of credit to, capital
contribution to, Guaranty of Indebtedness of, or purchase or other acquisition
of any Indebtedness of, another Person, including any partnership or joint
venture interest in such other Person, or (c) the purchase or other acquisition
(in one transaction or a series of transactions) of assets of another Person
that constitute the business or a division or operating unit of another Person.
Except as expressly provided otherwise, for purposes of determining compliance
with any covenant contained in a Loan Document, the amount of any Investment
shall be the amount actually invested, without adjustment for subsequent
increases or decreases in the value of such Investment but determined net of
all payments constituting returns of
invested capital received in respect of such Investment and, in the case of a
guaranty or similar obligation, such Investment will be reduced to the extent
the exposure under such guaranty or similar obligation is reduced.
“Investment
Grade Rating” means a Credit Rating of BBB- or higher by S&P or Fitch,
or Baa3 or higher by Moody’s.
“IRS”
means the Internal Revenue Service.
“ISP”
means, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law &
Practice, Inc. (or such later version thereof as may be in effect at the time
of issuance).
“Issuing
Bank” means each of Wells Fargo, Bank of America, N.A., and Royal Bank of
Canada, in its capacity as an issuer of Letters of Credit pursuant to
Section 2.4.
“L/C
Commitment Amount” has the meaning given to that term in Section 2.4.(a).
“L/C
Disbursement” has the meaning given to that term in Section 3.9.(b).
“Lender”
means each financial institution from time to time party hereto as a “Lender”
or a “Designated Lender,” together with its respective successors and permitted
assigns, and, as the context requires, includes the Swingline Lender; provided,
however, that the term “Lender” (i) shall exclude each Designated Lender when
used in reference to any Loan other than a Bid Rate Loan, the Commitments or
terms relating to any Loan other than a Bid Rate Loan and shall further exclude
each Designated Lender for all other purposes under the Loan Documents except
that any Designated Lender which funds a Bid Rate Loan shall, subject to
Section 13.5.(d), have only the rights (including the rights given to a
Lender contained in Sections 13.2. and 13.9.) and obligations of a Lender
associated with holding such Bid Rate Loan and (ii) except as otherwise
expressly provided herein, shall exclude any Lender (or its Affiliates) in its
capacity as a Specified Derivatives Provider.
“Lender Parties” means, collectively, the
Administrative Agent, the Lenders, the Issuing Banks, each co-agent or
sub-agent appointed by the Administrative Agent from time to time pursuant to Section 12.2.,
any other holder from time to time of any of any Obligations and, in each case,
their respective successors and permitted assigns.
“Lending
Office” means, for each Lender and for each Type of Loan, the office of
such Lender specified in such Lender’s Administrative Questionnaire or in the
applicable Assignment and Assumption, or such other office of such Lender as
such Lender may notify the Administrative Agent in writing from time to time.
“Letter
of Credit” has the meaning given that term in Section 2.4.(a).
“Letter
of Credit Collateral Account” means a special deposit account maintained by
the Administrative Agent, for the benefit of the Administrative Agent, the
Issuing Banks and the Revolving Lenders, and under the sole dominion and
control of the Administrative Agent.
“Letter
of Credit Documents” means, with respect to any Letter of Credit,
collectively, any application therefor, any certificate or other document
presented in connection with a drawing under such Letter of Credit and any
other agreement, instrument or other document governing or providing for
(a) the rights and obligations of the parties concerned or at risk with
respect to such Letter of Credit or (b) any collateral security for any of
such obligations.
“Letter
of Credit Liabilities” means, without duplication, at any time and in
respect of any Letter of Credit (a) the Stated Amount of such Letter of Credit
plus (b) the aggregate unpaid principal amount of all Reimbursement Obligations
of the Borrower at such time due and payable in respect of all drawings made
under such Letter of Credit. For purposes of this Agreement, (i) a Revolving Lender
(other than a Lender in its capacity as an Issuing
Bank of a Letter of Credit) shall be deemed to hold a Letter of Credit
Liability in an amount equal to its participation interest under Section 2.4.
in such Letter of Credit, and the Lender that is the Issuing Bank of such
Letter of Credit shall be deemed to hold a Letter of Credit Liability in an
amount equal to its retained interest in such Letter of Credit after giving
effect to the acquisition by the Revolving Lenders (other than the Lender then
acting as the Issuing Bank of such Letter of Credit) of their participation
interests under such Section and (ii) if on any date of determination a Letter
of Credit has expired by its terms but any amount may still be drawn thereunder
by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall
be deemed to be “outstanding” in the amount so remaining available to be drawn.
“Level”
has the meaning given that term in the definition of the term “Applicable
Margin.”
“LIBOR”
means, with respect to any LIBOR Loan for any Interest Period, the rate of
interest obtained by dividing (i) the rate of interest per annum
determined on the basis of the rate for deposits in Dollars for a period equal
to the applicable Interest Period which appears on Reuters Screen LIBOR01 Page
(or any applicable successor page) at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of the applicable Interest Period by
(ii) a percentage equal to 1 minus the 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). If,
for any reason, the rate referred to in the preceding clause (i) does not
appear on Reuters Screen LIBOR01 Page (or any applicable successor page), then
the rate to be used for such clause (i) shall be determined by the
Administrative Agent to be the arithmetic average of the rate per annum at
which deposits in Dollars would be offered by first class banks in the London
interbank market to the Administrative Agent at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of the applicable
Interest Period for a period equal to such Interest Period. Any change in the
maximum rate of reserves described in the preceding clause (ii) shall
result in a change in LIBOR on the date on which such change in such maximum
rate becomes effective. If LIBOR determined as provided above would be less
than zero, LIBOR shall be deemed to be zero.
“LIBOR
Auction” means a solicitation of Bid Rate Quotes setting forth LIBOR Margin
Loans based on LIBOR pursuant to Section 2.3.
“LIBOR
Loan” means a Revolving Loan or Term Loan (or any portion thereof) (other
than a Base Rate Loan) bearing interest at a rate based on LIBOR.
“LIBOR
Margin” has the meaning given that term in Section 2.3.(c)(ii)(D).
“LIBOR
Margin Loan” means a Bid Rate Loan the interest rate on which is determined
on the basis of LIBOR pursuant to a LIBOR Auction.
“LIBOR
Market Index Rate” means, for any day, LIBOR as of that day that would be
applicable for a LIBOR Loan having a one-month Interest Period determined at
approximately 8:00 a.m. Pacific time on such day (rather than 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest Period
as otherwise provided in the definition of “LIBOR”), or if such day is not a
Business Day, the immediately preceding Business Day. The LIBOR Market Index
Rate shall be determined on a daily basis.
“Lien” as applied to the property
of any Person means: (a) any security interest, encumbrance, mortgage,
deed to secure debt, deed of trust, assignment of leases and rents, pledge,
lien, hypothecation, assignment, charge or lease constituting a Capitalized
Lease Obligation, conditional sale or other title retention agreement, or other
security title or encumbrance of any kind in respect of any property of such
Person, or upon the income, rents or profits therefrom; (b) any
arrangement, express or implied, under which any property of such Person is
transferred, sequestered or otherwise identified for the purpose of subjecting the
same to the payment of Indebtedness or performance of any other obligation in
priority to the payment of the general, unsecured creditors of such Person; and
(c) the filing of any financing statement under the UCC or its equivalent
in any jurisdiction, other than any filing, including without limitation, 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 Capitalized 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.
“Loan”
means a Revolving Loan, a Term Loan, a Bid Rate Loan or a Swingline Loan, as
the context may require.
“Loan
Document” means this Agreement, each Note, the Guaranty (if in effect), each
Letter of Credit Document, the Fee Letter and each other document or instrument
now or hereafter executed and delivered by a Loan Party in connection with,
pursuant to or relating to this Agreement (other than any Specified Derivatives
Contract).
“Loan
Party” means each of the Borrower, each other Person who guarantees all or
a portion of the Obligations and/or who pledges any collateral to secure all or
a portion of the Obligations. Schedule 1.1.(B) sets forth the Loan
Parties in addition to the Borrower as of the Agreement Date.
“Mandatorily
Redeemable Stock” means, with respect to any Person, any Equity Interest of
such Person which by the terms of such Equity Interest (or by the terms of any
security into which it is convertible or for which it is exchangeable or
exercisable), upon the happening of any event or otherwise, (a) matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise
(other than an Equity Interest to the extent redeemable in exchange for common
stock or other equivalent common Equity Interests at the option of the issuer
of such Equity Interest), (b) is convertible into or exchangeable or
exercisable for Indebtedness or Mandatorily Redeemable Stock, or (c) is
redeemable at the option of the holder thereof, in whole or in part (other than
an Equity Interest which is redeemable solely in exchange for common stock or
other equivalent common Equity Interests), in the case of each of
clauses (a) through (c), on or prior to the latest Termination Date for
any Class of Loans.
“Material
Acquisition” means any acquisition by the Borrower or any Subsidiary in
which the assets acquired exceed 10% of the consolidated total assets of the
Borrower and its Subsidiaries determined under GAAP as of the last day of the
most recently ended fiscal quarter of the Borrower for which financial
statements are publicly available.
“Material
Adverse Effect” means a materially adverse effect on (a) the business,
assets, liabilities, financial condition or results of operations of the
Borrower and its Subsidiaries taken as a whole, (b) the ability of the
Borrower and the other Loan Parties, taken as a whole, to perform their
obligations under the Loan Documents, (c) the validity or enforceability
of any of the Loan Documents, or (d) the rights and remedies of the
Lenders, the Issuing Banks and the Administrative Agent under any of the Loan
Documents.
“Material Contract” means any
contract or other arrangement (other than Loan Documents and Specified
Derivatives Contracts), whether written or oral, to which the Borrower, any
Subsidiary or any other Loan Party is a party as to which the breach,
nonperformance, cancellation or failure to renew by any party thereto could
reasonably be expected to have a Material Adverse Effect.
“Moody’s”
means Moody’s Investors Service, Inc. and its successors.
“Mortgage” means a mortgage, deed of trust,
deed to secure debt or similar security instrument made by a Person owning an
interest in real estate granting a Lien on such interest in real estate as
security for the payment of Indebtedness.
“Mortgage
Receivable” means a promissory note secured by a Mortgage of which the Borrower
or a Subsidiary is the holder and retains the rights of collection of all
payments thereunder.
“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 or any Specified
Derivatives Contract) which prohibits or purports to prohibit the creation or
assumption of any Lien on such asset as security for Indebtedness of the Person
owning such asset or any other Person; provided, however, that an agreement
that conditions a Person’s ability to encumber its assets upon the maintenance
of one or more specified ratios that limit such Person’s ability to encumber
its assets but that do not generally prohibit the encumbrance of its assets, or
the encumbrance of specific assets, shall not constitute a Negative Pledge.
“Net
Operating Income” or “NOI” means, for any Property and for a given
period, the sum (without duplication) of (a) rents and other revenues
received in the ordinary course from such Property (excluding pre-paid rents
and revenues and security deposits except to the extent applied in satisfaction
of tenants’ obligations for rent) minus (b) all expenses paid or
accrued by the Borrower and its Subsidiaries and related to the ownership,
operation or maintenance of such Property (other than those expenses normally
covered by a management fee), including but not limited to, taxes, assessments
and the like, insurance, utilities, payroll costs, maintenance, repair and
landscaping expenses, marketing expenses, and general and administrative
expenses (including an appropriate allocation for legal, accounting,
advertising, marketing and other expenses incurred in connection with such
Property, but specifically excluding depreciation and general overhead expenses
of the Borrower and its Subsidiaries) minus (c) the Reserve for
Replacements for such Property for such period minus (d) the
greater of (i) the actual property management fee paid during such period
with respect to such Property and (ii) an imputed management fee in an
amount equal to 1% of the gross revenues for such Property for such period, all
as determined in accordance with GAAP.
“Non-Consenting
Lender” means any Lender that does not approve any consent, waiver or
amendment that (a) requires the approval of all or all affected Lenders in
accordance with the terms of Section 13.6.
and (b) has been approved by the
Requisite Lenders and, in the case of amendments that require the approval of
all or all affected Lenders of a particular Class, Requisite Class Lenders of
such Class.
“Non-Defaulting
Lender” means, at any time, each Lender that is not a Defaulting Lender at
such time.
“Nonrecourse Indebtedness” means,
with respect to a Person, (a) Indebtedness for borrowed money in respect of
which recourse for payment (except for customary exceptions for fraud, misapplication of funds, environmental
indemnities, voluntary bankruptcy, collusive involuntary bankruptcy and other
similar customary exceptions to nonrecourse liability) is contractually
limited to specific assets of such Person encumbered by a Lien securing such
Indebtedness and (b) if such Person is a Single Asset Entity, any Indebtedness
for borrowed money of such Person.
“Note”
means a Revolving Note, Term Note, a Bid Rate Note or a Swingline Note, as the
context may require.
“Notice
of Continuation” means a notice substantially in the form of Exhibit F
(or such other form reasonably acceptable to the Administrative Agent and
containing the information required in such Exhibit) to be delivered to the Administrative
Agent pursuant to Section 2.10. evidencing the Borrower’s request for the
Continuation of a LIBOR Loan.
“Notice
of Conversion” means a notice substantially in the form of Exhibit G (or
such other form reasonably acceptable to the Administrative Agent and
containing the information required in such Exhibit) to be delivered to the Administrative
Agent pursuant to Section 2.11. evidencing the Borrower’s request for the
Conversion of a Loan from one Type to another Type.
“Notice
of Revolving Borrowing” means a notice substantially in the form of
Exhibit H (or such other form reasonably acceptable to the Administrative
Agent and containing the information required in such Exhibit) to be delivered
to the Administrative Agent pursuant to Section 2.1.(b) evidencing the
Borrower’s request for a borrowing of Revolving Loans.
“Notice
of Swingline Borrowing” means a notice substantially in the form of
Exhibit I (or such other form reasonably acceptable to the Administrative
Agent and containing the information required in such Exhibit) to be delivered
to the Swingline Lender pursuant to Section 2.5.(b) evidencing the
Borrower’s request for a Swingline Loan.
“Notice of Term Loan Borrowing” means a notice
substantially in the form of Exhibit J (or such other form reasonably
acceptable to the Administrative Agent and containing the information required
in such Exhibit) to be delivered to the Administrative Agent pursuant to
Section 2.2.(b) evidencing the Borrower’s request for a borrowing of Term
Loans.
“Obligations”
means, individually and collectively: (a) the aggregate principal balance
of, and all accrued and unpaid interest on, all Loans; (b) all
Reimbursement Obligations and all other Letter of Credit Liabilities; and
(c) all other indebtedness, liabilities, obligations, covenants and duties
of the Borrower and the other Loan Parties owing to the Administrative Agent,
the Issuing Bank or any Lender of every kind, nature and description, under or
in respect of this Agreement or any of the other Loan Documents, including,
without limitation, the Fees and indemnification obligations, whether direct or
indirect, absolute or contingent, due or not due, contractual or tortious,
liquidated or unliquidated, and whether or not evidenced by any promissory
note. For the avoidance of doubt, “Obligations” shall not include any indebtedness,
liabilities, obligations, covenants or duties in respect of Specified
Derivatives Contracts.
“OFAC”
means the U.S. Department of the Treasury’s Office of Foreign Assets Control.
“Off-Balance
Sheet Obligations” means, with respect to a Person: (a) obligations of
such Person in respect of any financing transaction or series of financing
transactions (including factoring arrangements) pursuant to which such Person
or any Subsidiary of such Person has sold, conveyed or otherwise
transferred, or granted a security interest in, accounts, payments,
receivables, rights to future lease payments or residuals or similar rights to
payment to a special purpose Subsidiary or Affiliate of such Person;
(b) obligations of such Person under a sale and leaseback transaction that
does not create a liability on the balance sheet of such Person;
(c) obligations of such Person under any so-called “synthetic” lease
transaction; (d) obligations of such Person under any other transaction
which is the functional equivalent of, or takes the place of, a borrowing but
which does not constitute a liability on the balance sheet of such Person; and
(e) in the case of the Borrower, liabilities and obligations of the
Borrower, any Subsidiary or any other Person in respect of “off-balance sheet
arrangements” (as defined in Item 303(a)(4)(ii) of Regulation S-K promulgated
under the Securities Act) which the Borrower would be required to disclose in
the “Management’s Discussion and Analysis of Financial Condition and Results of
Operations” section of the Borrower’s report on Form 10‑Q or Form 10‑K
(or their equivalents) which the Borrower is required to file with the SEC.
“Other
Connection Taxes” means, with respect to any Recipient, Taxes imposed as a
result of a present or former connection between such Recipient and the
jurisdiction imposing such Tax (other than connections arising from such
Recipient having executed, delivered, become a party to, performed its
obligations under, received payments under, received or perfected a security
interest under, engaged in any other transaction pursuant to or enforced any
Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other
Taxes” means all present or future stamp, court or documentary, intangible,
recording, filing or similar Taxes that arise from any payment made under, from
the execution, delivery, performance, enforcement or registration of, from the
receipt or perfection of a security interest under, or otherwise with respect
to, any Loan Document, except any such Taxes that are Other Connection Taxes
imposed with respect to an assignment (other than an assignment made pursuant
to Section 5.6.).
“Ownership
Share” means, with respect to any Subsidiary of a Person (other than a
Wholly Owned Subsidiary) or any Unconsolidated Affiliate of a Person, the
greater of (a) such Person’s relative nominal direct and indirect ownership
interest (expressed as a percentage) in such Subsidiary or Unconsolidated
Affiliate or (b) such Person’s relative direct and indirect economic
interest (calculated as a percentage) in such Subsidiary or Unconsolidated
Affiliate determined in accordance with the applicable provisions of the
declaration of trust, articles or certificate of incorporation, articles of
organization, partnership agreement, joint venture agreement or other
applicable organizational document of such Subsidiary or Unconsolidated
Affiliate.
“Participant”
has the meaning given that term in Section 13.5.(d).
“Participant
Register” has the meaning given that term in Section 13.5.(d).
“Patriot
Act” means The Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of
Pub. L. No. 107-56 (signed into law October 26, 2001)), as amended from time to
time, and any successor statute.
“PBGC”
means the Pension Benefit Guaranty Corporation and any successor agency.
“Permitted
Liens” means, with respect to any Unencumbered Asset owned by a Person,
(a) Liens securing taxes, assessments and other charges or levies imposed
by any Governmental Authority (excluding any Lien imposed pursuant to any of
the provisions of ERISA or pursuant to any Environmental Laws) or property
owner association or similar entity or the claims of materialmen, mechanics,
carriers, warehousemen or landlords for labor, materials, supplies or rentals
incurred in the ordinary course of business, which are not at the time delinquent
or required to be paid or discharged under Section 8.6.;
(b) Liens consisting of deposits or pledges made, in the ordinary course
of business, in connection with, or to secure payment of, obligations under
workmen’s compensation, unemployment insurance or other social security or
other similar Applicable Laws; (c) Liens consisting of encumbrances in the
nature of covenants, conditions, zoning restrictions, easements, and rights or
restrictions on the use of real property, which do not materially detract from
the value of such property or impair the use thereof in the business of such
Person; (d) the rights of tenants under leases or subleases and the rights
of managers or operators with respect to real or personal property made in the
ordinary course of business, in each case, not interfering with the ordinary
conduct of business of such Person; (e) Liens in favor of the
Administrative Agent for the benefit of the Lenders; (f) any option,
contract or other agreement to sell an asset provided such sale is otherwise
permitted by this Agreement; and (g) with respect to any Property, any
attachment or judgment Lien on such Property arising from a judgment or order
against such Person by any court or other tribunal so long as (i) such
judgment or order is paid, stayed or dismissed through appropriate appellate
proceedings on or before 60 days from the date of entry and (ii) the
amount thereof is equal to or less than $500,000.
“Person”
means any natural person, corporation, limited partnership, general
partnership, joint stock company, limited liability company, limited liability
partnership, joint venture, association, company, trust, bank, trust company,
land trust, business trust or other organization, whether or not a legal
entity, or any other nongovernmental entity, or any Governmental Authority.
“Plan”
means at any time an employee pension benefit plan (other than a Multiemployer
Plan) which is covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Internal Revenue Code and either (a) is
maintained, or contributed to, by any member of the ERISA Group for employees
of any member of the ERISA Group or (b) has at any time within the preceding
six years been maintained, or contributed to, by any Person which was at such
time a member of the ERISA Group for employees of any Person which was at such
time a member of the ERISA Group.
“Post-Default
Rate” means, in respect of any principal of any Class of Loans, the rate
otherwise applicable to such Class of Loans plus an additional two percent
(2.0%) per annum and with respect to any other Obligation, a rate per annum
equal to the Base Rate as in effect from time to time plus the
Applicable Margin for Revolving Loans that are Base Rate Loans plus two percent
(2.0%).
“Preferred
Stock” means, with respect to any Person, Equity Interests in such Person
which are entitled to preference or priority over any other Equity Interest in such
Person in respect of the payment of dividends or distribution of assets upon
liquidation or both.
“Prime
Rate” means, at any time, the rate of interest per annum publicly announced
from time to time by the Lender then acting as the Administrative Agent as its
prime rate. Each change in the Prime Rate shall be effective as of the opening
of business on the day such change in such prime rate occurs. The parties
hereto acknowledge that the rate announced publicly by the Lender acting as
Administrative Agent as its prime rate is an index or base rate and shall not
necessarily be its lowest or best rate charged to its customers or other banks.
“Principal
Office” means the office of the Administrative Agent located at 608 Second Avenue S.,
11th Floor, Minneapolis, Minnesota 55402‑1916, or any other
subsequent office that the Administrative Agent shall have specified as the
Principal Office by written notice to the Borrower and the Lenders.
“Property”
means, with respect to any Person, any parcel of real property, together with
any building, facility, structure, equipment or other asset located on such
parcel of real property, in each case owned by such Person.
“Pro
Rata Share” means, as to each Lender, the ratio, expressed as a percentage
of (a) (i) the aggregate amount of such Lender’s Commitments plus (ii) the
aggregate amount of such Lender’s outstanding Term Loans (if any) to
(b) (i) the aggregate amount of the Commitments of all Lenders plus (ii)
the aggregate principal amount of all outstanding Term Loans (if any);
provided, however, that if at the time of determination the Commitments have been
terminated or reduced to zero, the “Pro Rata Share” of each Lender shall be the
ratio, expressed as a percentage of (A) the sum of the aggregate principal
amount of all outstanding Loans and Letter of Credit Liabilities owing to such
Lender as of such date to (B) the sum of the aggregate unpaid principal amount
of all outstanding Loans and Letter of Credit Liabilities of all Lenders as of
such date. If at the time of determination the Commitments have been terminated
or reduced to zero and there are no outstanding Loans or Letter of Credit
Liabilities, then the Pro Rata Shares of the Lenders shall be determined as of
the most recent date on which Commitments were in effect or Loans or Letters of
Credit Liabilities were outstanding. For purposes of this definition, a
Revolving Lender shall be deemed to hold a Swingline Loan or a Letter of Credit
Liability to the extent such Revolving Lender has acquired a participation
therein under the terms of this Agreement and has not failed to perform its
obligations in respect of such participation.
“Qualified Plan” means a Benefit Arrangement
that is intended to be tax-qualified under Section 401(a) of the Internal
Revenue Code.
“Rating
Agency” means S&P, Moody’s or Fitch.
“Recipient”
means (a) the Administrative Agent, (b) any Lender and (c) any
Issuing Bank, as applicable.
“Recurring
Capital Expenditures” means capital expenditures made in respect of a
Property for maintenance of such Property and replacement of items due to
ordinary wear and tear including, but not limited to, expenditures made for
maintenance or replacement of carpeting, roofing materials, mechanical systems,
electrical systems and other structural systems and expenditures relating to
tenant improvements and leasing commissions. “Recurring Capital Expenditures”
shall not include any of the following: (a) improvements to the appearance
of such Property or any other major upgrade or renovation of such Property not
necessary for proper maintenance or marketability of such Property;
(b) capital expenditures for seismic upgrades; or (c) capital
expenditures for deferred maintenance for such Property existing at the time
such Property was acquired by the Borrower or a Subsidiary.
“Register”
has the meaning given that term in Section 13.5.(c).
“Regulatory
Change” means, with respect to any Lender, any change effective after the
Agreement Date in Applicable Law (including without limitation, Regulation D of
the Board of Governors of the Federal Reserve System) or the adoption or making
after such date of any interpretation, directive or request applying to a class
of banks, including such Lender, of or under any Applicable Law (whether or not
having the force of law) by any Governmental Authority or monetary authority charged
with the interpretation or administration thereof or compliance by any Lender
with any request or directive regarding capital adequacy or liquidity. Notwithstanding anything herein to the contrary,
(a) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all
requests, rules, guidelines or directives thereunder or issued in connection
therewith and (b) all requests, rules, guidelines or directives
promulgated by the Bank for International Settlements, the Basel Committee on
Banking Supervision (or any successor or similar authority) or the United
States or foreign regulatory authorities, in each case pursuant to Basel III,
shall in each case be deemed to be a “Regulatory Change”, regardless of the
date enacted, adopted or issued.
“Reimbursement Obligation” means
the absolute, unconditional and irrevocable obligation of the Borrower to
reimburse the applicable Issuing Bank for any drawing honored by such Issuing
Bank under a Letter of Credit.
“REIT”
means a “real estate investment trust” under Sections 856 through 860 of the Internal
Revenue Code.
“Related
Parties” means, with respect to any Person, such Person’s Affiliates and
the partners, shareholders, directors, officers, employees, agents, counsel, other
advisors and representatives of such Person and of such Person’s Affiliates.
“Requisite
Class Lenders” means, with respect to a Class of Lenders as of any date of
determination, Lenders of such Class (a) having more than 50.0% of the
aggregate amount of the Commitments of such Class and, in the case of Term
Loans or Term Loan Commitments, the outstanding Term Loans (if any) of all
Lenders or (b) if the Commitments of such Class have been terminated or
reduced to zero, holding more than 50.0% of the principal amount of the
aggregate outstanding Loans of such Class, and in the case of Revolving
Lenders, outstanding Letter of Credit Liabilities and Swingline Loans; provided
that (i) in determining such percentage at any given time, all then
existing Defaulting Lenders of such Class will be disregarded and excluded, and
(ii) at all times when two or more Lenders (excluding Defaulting Lenders) of
such Class are party to this Agreement, the term “Requisite Class Lenders”
shall in no event mean less than two Lenders of such Class. For purposes of
this definition, a Revolving Lender shall be deemed to hold a Swingline Loan or
a Letter of Credit Liability to the extent such Lender has acquired a
participation therein under the terms of this Agreement and has not failed to
perform its obligations in respect of such participation.
“Requisite
Lenders” means, as of any date, (a) Lenders having more than 50.0% of
the aggregate amount of the Commitments and the outstanding Term Loans (if any)
of all Lenders, or (b) if the Commitments have been terminated or reduced to
zero, Lenders holding more than 50.0% of the principal amount of the aggregate
outstanding Loans and Letter of Credit Liabilities; provided that (i) in
determining such percentage at any given time, all then existing Defaulting
Lenders will be disregarded and excluded, and (ii) at all times when two or
more Lenders (excluding Defaulting Lenders) are party to this Agreement, the
term “Requisite Lenders” shall in no event mean less than two Lenders. For
purposes of this definition, a Revolving Lender shall be deemed to hold a
Swingline Loan or a Letter of Credit Liability to the extent such Lender has
acquired a participation therein under the terms of this Agreement and has not
failed to perform its obligations in respect of such participation.
“Reserve
for Replacements” means, for any period and with respect to any Property,
an amount equal to the greater of (a)(i) the aggregate square footage of
all completed space of such Property times (ii) $0.10 times
(iii) the number of days in such period divided by (iv) 365
and (b) the amount of Recurring Capital Expenditures actually made in
respect of such Property during such period. If the term Reserve for
Replacements is used without reference to any specific Property, then it shall
be determined on an aggregate basis with respect to all Properties and the
applicable Ownership Shares of all real property of all Unconsolidated
Affiliates.
“Responsible
Officer” means with respect to the Borrower or any Subsidiary, the chief
executive officer, the chief financial officer and chief operating officer of
the Borrower or such Subsidiary.
“Restricted
Payment” means (a) any dividend or other distribution, direct or
indirect, on account of any Equity Interest of the Borrower or any of its
Subsidiaries now or hereafter outstanding, except a dividend payable solely in
shares of that class of Equity Interests to the holders of that class;
(b) any redemption, conversion, exchange, retirement, sinking fund or
similar payment, purchase or other acquisition for value,
direct or indirect, of any Equity Interests of the Borrower or any of its
Subsidiaries now or hereafter outstanding; and (c) any payment made to
retire, or to obtain the surrender of, any outstanding warrants, options or
other rights to acquire any Equity Interests of the Borrower or any of its
Subsidiaries now or hereafter outstanding.
“Revolving
Commitment” means, as to each Revolving Lender (other than the Swingline
Lender), such Revolving Lender’s obligation to make Revolving Loans pursuant to
Section 2.1., to issue (in the case of an Issuing Bank) and to participate
(in the case of the other Revolving Lenders) in Letters of Credit pursuant to
Section 2.4.(i), and to participate in Swingline Loans pursuant to
Section 2.5.(e), in an amount up to, but not exceeding the amount set
forth for such Revolving Lender on Schedule I as such Revolving Lender’s “Revolving
Commitment Amount” or as set forth in the applicable Assignment and Assumption,
or agreement executed by a Person becoming a Revolving Lender pursuant to Section 2.17.,
as the same may be reduced from time to time pursuant to Section 2.13. or
increased or reduced as appropriate to reflect any assignments to or by such Revolving
Lender effected in accordance with Section 13.5. or increased as
appropriate to reflect any increase effected in accordance with Section 2.17.
“Revolving
Commitment Percentage” means, as to each Lender with a Revolving
Commitment, 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 Revolving Lenders; provided, however, that if
at the time of determination the Revolving Commitments have been terminated or
reduced to zero, the “Revolving Commitment Percentage” of each Lender with a
Revolving Commitment shall be the “Revolving Commitment Percentage” of such
Lender in effect immediately prior to such termination or reduction.
“Revolving
Credit Exposure” means, as to any Revolving Lender at any time, the
aggregate principal amount at such time of its outstanding Revolving Loans and
such Revolving Lender’s participation in Letter of Credit Liabilities and
Swingline Loans at such time.
“Revolving
Lender” means a Lender having a Revolving Commitment, or if the
Revolving Commitments have been terminated or reduced to zero, holding any
Revolving Loans or Letter of Credit Liabilities.
“Revolving
Loan” means a loan made by a Revolving Lender to the Borrower pursuant to
Section 2.1.(a).
“Revolving
Note” means a promissory note of the Borrower substantially in the form of
Exhibit K, payable to a Revolving Lender in a principal amount equal to
the amount of such Lender’s Revolving Commitment.
“Revolving
Termination Date” means June 30, 2019, or such later date to which the
Revolving Termination Date may be extended pursuant to Section 2.14.
“Sanctioned
Country” means, at any time, a country, region or territory which is, or
whose government is, the subject or target of any Sanctions.
“Sanctioned
Person” means, at any time, (a) any Person listed in any Sanctions-related
list of designated Persons maintained by any Governmental Authority of the
United States of America, including without limitation, OFAC or the U.S.
Department of State, or by the United Nations Security Council, the European
Union or any member state of the European Union, (b) any Person located, operating,
organized or resident in a Sanctioned Country, (c) an agency of the
government of a Sanctioned County or (d) any Person
Controlled by any Person or agency described in any of the preceding
clauses (a) through (c).
“Sanctions”
means any sanctions or trade embargoes imposed, administered or enforced by any
Governmental Authority of the United States of America, including without
limitation, OFAC or the U.S. Department of State, or by the United Nations
Security Council, the European Union or any member state of the European Union.
“SEC”
means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.
“Secured
Indebtedness” means, with respect to a Person as of a given date, the
aggregate principal amount of all Indebtedness of such Person outstanding on such
date that is secured in any manner by any Lien on any property of such Person and,
in the case of the Borrower, shall include (without duplication) the Borrower’s
Ownership Share of the Secured Indebtedness of its Unconsolidated Affiliates.
Indebtedness of the Borrower or a Subsidiary secured solely by a pledge of
Equity Interests in one or more Subsidiaries shall not be treated as Secured
Indebtedness but shall be treated as Unsecured Indebtedness.
“Securities
Act” means the Securities Act of 1933, as amended from time to time,
together with all rules and regulations issued thereunder.
“Single
Asset Entity” means a Person (other than an individual) that (a) only owns
a single Property; (b) is engaged only in the business of owning, developing
and/or leasing such Property; and (c) receives substantially all of its gross
revenues from such Property. In addition, if the assets of a Person consist
solely of (i) Equity Interests in one or more other Single Asset Entities that
collectively own a single Property and (ii) cash and other assets of nominal
value incidental to such Person’s ownership of the other Single Asset Entities,
such Person shall also be deemed to be a Single Asset Entity for purposes
hereof.
“Solvent”
means, when used with respect to any Person, that (a) the fair value and
the fair salable value of its assets are each in excess of the fair valuation
of its total liabilities (including all contingent liabilities computed at the
amount which, in light of all facts and circumstances existing at such time,
represents the amount that could reasonably be expected to become an actual and
matured liability); (b) such Person is able to pay its debts or other
obligations in the ordinary course as they mature; and (c) such Person has
capital not unreasonably small to carry on its business and all business in
which it proposes to be engaged.
“Specified Derivatives Contract” means any Derivatives
Contract that is made or entered into at any time, or in effect at any time now
or hereafter, whether as a result of an assignment or transfer or otherwise,
between or among any Loan Party and any Specified Derivatives Provider, and
which was not prohibited by any of the Loan Documents when made or entered
into.
“Specified Derivatives Provider” means any Person that
(a) at the time it enters into a Specified Derivatives Contract with a Loan
Party, is a Lender or an Affiliate of a Lender or (b) at the time it (or its
Affiliate) becomes a Lender (including on the Effective Date), is a party to a
Specified Derivatives Contract with a Loan Party, in each case in its capacity
as a party to such Specified Derivatives Contract.
“S&P”
means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial
Services LLC business, or any successor.
“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, limited liability company
or other entity of which at least a majority of the Equity Interests having by
the terms thereof ordinary voting power to elect a majority of the board of
directors or other individuals performing similar functions of such
corporation, partnership, limited liability company or other entity (without
regard to the occurrence of any contingency) is at the time directly or
indirectly owned or controlled by such Person or one or more Subsidiaries of
such Person or by such Person and one or more Subsidiaries of such Person, and
shall include all Persons the accounts of which are consolidated with those of
such Person pursuant to GAAP.
“Substantial
Amount” means, at the time of determination thereof, an amount equal to 25%
of Gross Asset Value at such time.
“Swap Obligation” means, with respect to any Guarantor,
any obligation to pay or perform under any agreement, contract or transaction
that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity
Exchange Act.
“Swingline
Commitment” means the Swingline Lender’s obligation to make Swingline Loans
pursuant to Section 2.5. in an amount up to, but not exceeding the
amount set forth in the first sentence of Section 2.5.(a), as such amount may
be reduced from time to time in accordance with the terms hereof.
“Swingline
Lender” means Wells Fargo, together with its successors and assigns.
“Swingline
Loan” means a loan made by the Swingline Lender to the Borrower pursuant to
Section 2.5.
“Swingline
Maturity Date” means the date which is 5 Business Days prior to the Revolving
Termination Date.
“Swingline
Note” means the promissory note of the Borrower substantially in the form
of Exhibit L, 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.
“Tau”
means Tau Operating Partnership, L.P., a limited partnership formed under the
law of the State of Delaware.
“Taxable
REIT Subsidiary” means any corporation (other than a REIT) in which the
Borrower directly or indirectly owns stock and the Borrower and such
corporation jointly elect on IRS Form 8875 (or with respect to which IRS Form
8875 is otherwise filed with the IRS) to have the corporation treated as a
taxable REIT subsidiary of Borrower under Section 856(l) of the Internal
Revenue Code. For purposes of this Agreement, any Subsidiary of a Taxable REIT
Subsidiary that is disregarded as an entity for United States federal income
tax purposes (a “Deemed Taxable REIT Subsidiary”) shall not be treated as an
entity separate from such Taxable REIT Subsidiary but shall instead be deemed
to be the same entity as such Taxable REIT Subsidiary.
“Taxes”
means all present or future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other similar
charges imposed by any Governmental Authority, including any interest,
additions to tax or penalties applicable thereto.
“Term
Loan” means a loan made by a Term Loan Lender to the Borrower pursuant to
Section 2.2.
“Term
Loan Availability Termination Date” means the first to occur of: (a) December 30, 2015;
(b) the date on which the Term Loan Commitments have been fully utilized; and
(c) the date on which the Term Loan Commitments are terminated or reduced to
zero in accordance with this Agreement (including without limitation, pursuant
to Section 2.13.).
“Term
Loan Commitment” means, as to each Term Loan Lender, such Lender’s
obligation to make Term Loans pursuant to Section 2.2., in an amount up
to, but not exceeding, the amount set forth for such Lender on Schedule I as
such Lender’s “Term Loan Commitment Amount”.
“Term
Loan Lender” means a Lender having a Term Loan Commitment, or if the Term
Loan Commitments have terminated, a Lender holding a Term Loan.
“Term
Loan Maturity Date” means June 30, 2020.
“Term
Note” means a promissory note of the Borrower substantially in the form of
Exhibit M, payable to a Term Loan Lender in a principal amount equal to
the amount of such Term Loan Lender’s Term Loan Commitment.
“Termination
Date” means (a) with respect to the Revolving Loans and Revolving
Commitments, the Revolving Termination Date and (b) with respect to the Term
Loans and Term Loan Commitment, the Term Loan Maturity Date.
“Titled
Agent” has the meaning given that term in Section 12.9.
“Total
Liabilities” means, as to any Person as of a given date, all liabilities
which would, in conformity with GAAP, be properly classified as a liability on
a consolidated balance sheet of such Person as of such date, and in any event
shall include (without duplication): (a) all Indebtedness of such Person
(whether or not Nonrecourse Indebtedness and whether or not secured by a Lien),
including without limitation, Capitalized Lease Obligations and reimbursement
obligations with respect to any letter of credit; (b) [reserved];
(c) all purchase and repurchase obligations and forward commitments of
such Person to the extent such obligations or commitments are evidenced by a
binding purchase agreement (forward commitments shall include without
limitation (i) forward equity commitments and (ii) commitments to
purchase any real property under development, redevelopment or renovation);
(d) all unfunded obligations of such Person; (e) all lease
obligations of such Person (including ground leases) to the extent required
under GAAP to be classified as a liability on a balance sheet of such Person;
(f) all contingent obligations of such Person including, without
limitation, all Guarantees of Indebtedness by such Person; (g) all
liabilities of any Unconsolidated Affiliate of such Person, which liabilities
such Person has Guaranteed or is otherwise obligated on a recourse basis; and
(h) such Person’s Ownership Share of the Indebtedness of any
Unconsolidated Affiliate of such Person, including Nonrecourse Indebtedness of
such Person. Accounts payable and accrued expenses shall be excluded from
Total Liabilities. For purposes of clauses (c) and (d) of this definition, the
amount of Total Liabilities of a Person at any given time in respect of
(x) a contract to purchase or otherwise acquire unimproved or fully
developed real property shall be equal to (i) the total purchase price
payable by such Person under such contract if, at such time, the seller of such
real property would be entitled to specifically enforce such contract against
such Person, otherwise, (ii) the aggregate amount of due diligence
deposits, earnest money payments and other similar payments made by such Person
under such contract which, at such time, would be subject to forfeiture upon
termination of the contract and (y) a contract relating to the acquisition of real property which the seller is required
to develop or renovate prior to, and as a condition precedent to, such
acquisition, shall equal the maximum amount reasonably estimated to be payable
by such Person under such contract assuming performance by the seller of its
obligations under such contract, which amount shall include, without
limitation, any amounts payable after consummation of such acquisition which
may be based on certain performance levels or other related criteria. For
purposes of this definition, if the assets of a Subsidiary of a Person consist
solely of Equity Interests in one Unconsolidated Affiliate of such Person and
such Person is not otherwise obligated in respect of the Indebtedness of such
Unconsolidated Affiliate, then only such Person’s Ownership Share of the
Indebtedness of such Unconsolidated Affiliate shall be included as Total
Liabilities of such Person. Notwithstanding the use of GAAP, the calculation
of Total Liabilities shall not include any fair value adjustments to the
carrying value of liabilities to record such liabilities at fair value pursuant
to electing the fair value option election under FASB ASC 825-10-25 (formerly
known as FAS 159, The Fair Value Option for Financial Assets and Financial
Liabilities) or other FASB standards allowing entities to elect fair value
option for financial liabilities.
“Type”
with respect to any Revolving Loan or Term Loan, refers to whether such Loan or
portion thereof is a LIBOR Loan or a 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 whom such
Person holds an Investment, which Investment is accounted for in the financial
statements of such Person on an equity basis of accounting and whose financial
results would not be consolidated under GAAP with the financial results of such
Person on the consolidated financial statements of such Person.
“Unencumbered
Asset” means a Property which satisfies all of the following requirements:
(a) such Property is owned in fee simple, or leased under an Eligible
Ground Lease, by (i) the Borrower, (ii) a Guarantor which is not an
Unconsolidated Affiliate and of which the Borrower directly or indirectly owns
and controls at least 51% of the issued and outstanding Equity Interests of
such Guarantor or (iii) a Subsidiary of which the Borrower directly or
indirectly owns and controls at least 90% of the issued and outstanding Equity
Interests of such Subsidiary; (b) such Property is a retail, office,
industrial, manufacturing or distribution Property, or is the Diageo Portfolio,
and is leased to third party tenants on a net lease basis; (c) if such
Property is owned by a Subsidiary that is not a Guarantor, such Subsidiary has
not incurred, acquired or suffered to exist any Indebtedness other than (i) Nonrecourse
Indebtedness, (ii) Indebtedness that does not constitute Nonrecourse
Indebtedness not to exceed 5% of the Unencumbered Asset Value of such
Subsidiary in the aggregate at any time outstanding and (iii) in the case of
Tau, the Indebtedness of Tau under that certain Term Loan Agreement dated as of
January 22, 2013, by and among Tau, the financial institutions from time to
time party thereto as “Lenders”, and Wells Fargo Bank, as administrative agent
for such lenders, in the original principal amount of $70,000,000, as the same
may be amended, restated, supplemented or otherwise modified from time to time
so long as there is no increase in the aggregate principal amount thereof;
(d) regardless of whether such Property is owned by the Borrower or a
Subsidiary, the Borrower has the right directly, or indirectly through a
Subsidiary, to take the following actions without the need to obtain the
consent of any Person: (i) to create Liens on such Property as security
for Indebtedness of the Borrower or such Subsidiary, as applicable, and
(ii) to sell, transfer or otherwise dispose of such Property;
(e) neither such Property, nor if such Property is owned by a Subsidiary,
any of the Borrower’s direct or indirect ownership interest in such Subsidiary,
is subject to (i) any Lien other than Permitted Liens or (ii) any
Negative Pledge; and (f) such Property is free of all structural defects,
title defects and environmental conditions except for such defects or
conditions individually or collectively which do not materially adversely
affect the profitable operation of such Property; provided that no
Property owned by (A) Crest Net Lease, Inc., (B) any Deemed Taxable REIT
Subsidiary of Crest Net Lease, Inc., (C) ARCT TRS Corp., (D) any Deemed Taxable REIT Subsidiary of ARCT TRS Corp., (E) any
Taxable REIT Subsidiary (in addition to Crest Net Lease, Inc., and ARCT TRS
Corp.) that is designated by the Borrower pursuant to Section 8.14. hereof
to not become a Guarantor hereunder or (F) any Deemed Taxable REIT Subsidiary
of a Taxable REIT Subsidiary identified in the foregoing clause (E) shall be
included as an Unencumbered Asset hereunder. Notwithstanding the foregoing,
any Property approved by the Requisite Lenders shall be deemed to be an Unencumbered
Asset even if such Property does not satisfy all of the requirements herein, so
long as such Property continues to satisfy all those remaining requirements in
this definition that were satisfied by such Property at the time of such
Requisite Lender approval.
“Unencumbered
Asset Certificate” means a report, certified by the chief financial officer
of the Borrower in the manner provided for in Exhibit N, setting forth the
calculations required to establish Unencumbered Asset Value as of a specified date,
all in form and detail reasonably satisfactory to the Administrative Agent.
“Unencumbered
Asset Value” means, at any time, the sum (without duplication) of
(a)(i) the Net Operating Income of
all Unencumbered Assets (excluding (A) Development Properties and (B) any
Unencumbered Asset that has a negative Net Operating Income for such period)
for the period of four consecutive fiscal quarters of the Borrower most
recently ended divided by (ii) the Capitalization Rate, plus
(b) the current GAAP book value of
all Development Properties that are Unencumbered Assets plus (c) the GAAP book
value (exclusive of accumulated depreciation) of the corporate headquarters of
the Borrower located at 11975/11995 El Camino Real, San Diego, California
92130so long as the Borrower owns such Property and such Property would qualify
as an Unencumbered Asset except for clause (b) of the definition thereof. If an Unencumbered Asset (other than a Development
Property) was acquired by the Borrower or a Subsidiary during the period of
four consecutive fiscal quarters of the Borrower most recently ended, then the
Net Operating Income from such Unencumbered Asset shall be excluded from
determination of Unencumbered Asset Value and Unencumbered Asset Value shall be
increased by an amount equal to the purchase price paid by the Borrower or any
Subsidiary for such Unencumbered Asset (less any amounts paid to the Borrower
or such Subsidiary as a purchase price adjustment, held in escrow, retained as
a contingency reserve, or in connection with other similar arrangements). To the extent that Unencumbered Assets leased pursuant
to ground leases would, in the aggregate, account for more than 10.0% of
Unencumbered Asset Value, such excess shall be excluded. To the extent
that Development Properties would, in the aggregate, account for more than
10.0% of Unencumbered Asset Value, such excess shall be excluded. To the
extent that Unencumbered Assets that are not located in a state of the United
States of America or the District of Columbia would, in the aggregate account
for more than 10.0% of Unencumbered Asset Value, such excess shall be excluded.
In the event that a Property meets the definition of Unencumbered Asset by way
of its owner becoming a Guarantor as provided for in clause (a)(ii) of the
definition of Unencumbered Asset (which Guarantor is not a Subsidiary for which
the Borrower directly or indirectly owns and controls at least 90% of its
issued and outstanding Equity Interests), then to the extent that such
Unencumbered Assets (excluding any Unencumbered Assets owned directly or
indirectly by Tau or Realty Income, LP) would account for more than 10.0% of
Unencumbered Asset Value, such excess shall be excluded.
“Unimproved
Land” means land on which no development (other than improvements that are
not material and are temporary in nature) has occurred.
“Unrestricted
1031 Cash” means the aggregate amount of cash of the Borrower, each Guarantor and each Subsidiary that is held in escrow in connection with the
completion of “like-kind” exchanges being effected in accordance with Section
1031 of the Internal Revenue Code.
“Unsecured Indebtedness” means,
with respect to a Person, Indebtedness of such Person that is not Secured
Indebtedness.
“U.S. Person” means any Person that is a
“United States Person” as defined in Section 7701(a)(30) of the Internal
Revenue Code.
“U.S. Tax Compliance Certificate”
has the meaning assigned to such term in Section 3.10.(g)(ii)(B)(III).
“Wells
Fargo” means Wells Fargo Bank, National Association, and its successors and
assigns.
“Wholly
Owned Subsidiary” means any Subsidiary of a Person in respect of which all of
the Equity Interests (other than, in the case of a corporation, directors’
qualifying shares) are at the time directly or indirectly owned or controlled
by such Person or one or more other Subsidiaries of such Person or by such
Person and one or more other Subsidiaries of such Person.
“Withdrawal Liability” means any liability as a
result of a complete or partial withdrawal from a Multiemployer Plan as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
“Withholding Agent” means
(a) the Borrower, (b) any other Loan Party and (c) the
Administrative Agent, as applicable.
Section 1.2.
General; References to Pacific Time.
Unless
otherwise indicated, all accounting terms, ratios and measurements shall be
interpreted or determined in accordance with GAAP as in effect as of the
Agreement Date. References in this Agreement to “Sections”, “Articles”, “Exhibits”
and “Schedules” are to sections, articles, exhibits and schedules herein and
hereto unless otherwise indicated. references
in this Agreement to any document, instrument or agreement (a) shall
include all exhibits, schedules and other attachments thereto, (b) except
as expressly provided otherwise in any Loan Document, shall include all
documents, instruments or agreements issued or executed in replacement thereof,
to the extent permitted hereby and (c) shall mean such document,
instrument or agreement, or replacement or predecessor thereto, as amended,
supplemented, restated or otherwise modified from time to time to the extent
not otherwise stated herein or prohibited hereby and in effect at any given
time. Except as expressly provided otherwise in any Loan Document, (i) any
reference to any law shall include all statutory and regulatory provisions
consolidating, amending, replacing or interpreting such law and any reference
to any law or regulation shall, unless otherwise specified, refer to such law
or regulation as amended, modified, extended, restated, replaced or supplemented
from time to time and (ii) any reference to any Person shall be construed to
include such Person’s permitted successors and permitted assigns. The words
“include”, “includes” and “including” shall be deemed to be followed by the
phrase “without limitation.” The word “will” shall be construed to have the
same meaning and effect as the word “shall”. The word “or” has the inclusive
meaning represented by the phrase “and/or”. Wherever from the context it
appears appropriate, each term stated in either the singular or plural shall
include the singular and plural, and pronouns stated in the masculine, feminine
or neuter gender shall include the masculine, the feminine and the neuter.
Unless explicitly set forth to the contrary, a reference to “Subsidiary” means
a Subsidiary of the Borrower or a Subsidiary of such Subsidiary and a reference
to an “Affiliate” means an Affiliate of the Borrower. Titles and captions of
Articles, Sections, subsections and clauses in this Agreement are for
convenience only, and neither limit nor amplify the provisions of this
Agreement. Unless otherwise indicated, all references to time are references
to Pacific time daylight or standard, as applicable.
Article II. Credit
Facility
Section 2.1.
Revolving Loans.
(a) Making
of Revolving Loans. Subject to the terms and conditions set forth in this
Agreement, including without limitation, Section 2.16., each Revolving Lender
severally and not jointly agrees to make Revolving Loans in Dollars to the
Borrower during the period from and including the Effective Date to but
excluding the Revolving Termination Date, in an aggregate principal amount at
any one time outstanding up to, but not exceeding, such Revolving Lender’s Revolving
Commitment. Each borrowing of Revolving Loans that are to be (i) Base
Rate Loans shall be in an aggregate minimum amount of $5,000,000 and integral
multiples of $1,000,000 in excess thereof and (ii) LIBOR Loans shall be in
an aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000
in excess thereof. Notwithstanding the immediately preceding two sentences but
subject to Section 2.16., a borrowing of Revolving Loans may be in the
aggregate amount of the unused Revolving Commitments. Within the foregoing
limits and subject to the terms and conditions of this Agreement, the Borrower
may borrow, repay and reborrow Revolving Loans.
(b) Requests
for Revolving Loans. Not later than 9:00 a.m. Pacific time at least 1
Business Day prior to a borrowing of Revolving Loans that are to be Base Rate
Loans and not later than 9:00 a.m. Pacific time at least 3 Business Days prior
to a borrowing of Revolving Loans that are to be LIBOR Loans, the Borrower
shall deliver to the Administrative Agent a Notice of Revolving Borrowing. Each
Notice of Revolving Borrowing shall specify the aggregate principal amount of
the Revolving Loans to be borrowed, the date such Revolving Loans are to be
borrowed (which must be a Business Day), the use of the proceeds of such
Revolving Loans, the Type of the requested Revolving Loans, and if such
Revolving Loans are to be LIBOR Loans, the initial Interest Period for such
Revolving Loans. Each Notice of Revolving Borrowing shall be irrevocable once given
and binding on the Borrower. Prior to delivering a Notice of Revolving Borrowing,
the Borrower may (without specifying whether a Revolving Loan will be a Base
Rate Loan or a LIBOR Loan) request that the Administrative Agent provide the
Borrower with the most recent LIBOR available to the Administrative Agent. The
Administrative Agent shall provide such quoted rate to the Borrower on the date
of such request or as soon as possible thereafter.
(c) Funding
of Revolving Loans. Promptly after receipt of a Notice of Revolving Borrowing
under the immediately preceding subsection (b), the Administrative Agent
shall notify each Revolving Lender of the proposed borrowing. Each Revolving Lender
shall deposit an amount equal to the Revolving Loan to be made by such Lender
to the Borrower with the Administrative Agent at the Principal Office, in
immediately available funds not later than 9:00 a.m. Pacific time on the date
of such proposed Revolving Loans. Subject to fulfillment of all applicable
conditions set forth herein, the Administrative Agent shall make available to
the Borrower in the account specified in the Disbursement Instruction Agreement,
not later than 12:00 Noon Pacific time on the date of the requested borrowing
of Revolving Loans, the proceeds of such amounts received by the Administrative
Agent.
(d) Assumptions
Regarding Funding by Revolving Lenders. With respect to Revolving Loans to
be made after the Effective Date, unless the Administrative Agent shall have
been notified by any Revolving Lender that such Lender will not make available
to the Administrative Agent a Revolving 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 Revolving Loan available to the Administrative
Agent in accordance with this Section, and the Administrative Agent may (but
shall not be obligated to), in reliance upon such assumption, make available to
the Borrower the amount of such Revolving Loan to be provided by such Lender. In
such event, if such Lender does not make available to the Administrative Agent
the proceeds of such Revolving Loan, then such Lender and the Borrower
severally agree to pay to the Administrative Agent on
demand the amount of such Revolving Loan with interest thereon, for each day
from and including the date such Revolving Loan is made available to the
Borrower but excluding the date of payment to the Administrative Agent, at (i)
in the case of a payment to be made by such Lender, the greater of the Federal
Funds Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation and (ii) in the case of a
payment to be made by the Borrower, the interest rate applicable to Revolving
Loans that are Base Rate Loans. If the Borrower and such Lender shall pay the
amount of such interest to the Administrative Agent for the same or overlapping
period, the Administrative Agent shall promptly remit to the Borrower the
amount of such interest paid by the Borrower for such period. If such Lender
pays to the Administrative Agent the amount of such Revolving Loan, the amount
so paid shall constitute such Lender’s Revolving Loan included in the borrowing.
Any payment by the Borrower shall be without prejudice to any claim the
Borrower may have against a Revolving Lender that shall have failed to make
available the proceeds of a Revolving Loan to be made by such Lender
(including, if applicable, treatment of such Lender as a Defaulting Lender in
accordance with the terms of this Agreement).
Section 2.2.
Term Loans.
(a) Making
of Term Loans. Subject to the terms and conditions set forth in this
Agreement, during the period from and including the Effective Date to but
excluding the Term Loan Availability Termination Date, each Term Loan Lender
severally and not jointly agrees to make Term Loans in Dollars to the Borrower
in an aggregate principal amount up to, but not exceeding, such Lender’s Term
Loan Commitment. There shall be no more than 4 separate borrowings of Term
Loans and each borrowing of Term Loans shall be in an aggregate minimum amount
of $50,000,000 and integral multiples of $50,000,000 in excess thereof; provided,
that a borrowing of Term Loans may be in the aggregate amount of the Term Loan
Commitments. Upon a Term Loan Lender’s funding of a Term Loan, such Lender’s
Term Loan Commitment shall be permanently reduced by the principal amount of
such Term Loan. All Term Loan Commitments of the Term Loan Lenders shall
terminate on the Term Loan Availability Termination Date if not previously
terminated pursuant hereto. Once repaid, the principal amount of a Term Loan
(or portion thereof) may not be reborrowed.
(b) Requests
for Term Loans. Not later than 9:00 a.m. Pacific time at least 1 Business
Day prior to a borrowing of Term Loans that are to be Base Rate Loans and not
later than 9:00 a.m. Pacific time at least 3 Business Days prior to a borrowing
of Term Loans that are to be LIBOR Loans, the Borrower shall deliver to the
Administrative Agent a Notice of Term Loan Borrowing. Each Notice of Term Loan
Borrowing shall specify the aggregate principal amount of Term Loans to be
borrowed, the Type of the Term Loans, the date such Term Loans are to be
borrowed (which must be a Business Day), the use of proceeds of such Term Loans
and if such Term Loans are to be LIBOR Loans, the initial Interest Period for
such Term Loans. Each Notice of Term Loan Borrowing shall be irrevocable once
given and binding on the Borrower. Upon receipt of a Notice of Term Loan
Borrowing, the Administrative Agent shall promptly notify each Term Loan
Lender.
(c) Funding
of Term Loans. Promptly after receipt of a Notice of Term Loan Borrowing,
each Term Loan Lender shall deposit an amount equal to the Term Loan to be made
by such Term Loan Lender to the Borrower with the Administrative Agent at the
Principal Office, in immediately available funds, not later than 9:00 a.m. Pacific
time on the date of such proposed Term Loans. Subject to fulfillment of all
applicable conditions set forth herein, the Administrative Agent shall make
available to the Borrower in the account specified by the Borrower in the
Disbursement Instruction Agreement, not later than 12:00 Noon Pacific time on
the date of such proposed Term Loans, the proceeds of such amounts received by
the Administrative Agent.
(d) Assumptions Regarding
Funding by Term Loan Lenders. With respect to Term Loans to be made after
the Effective Date, unless the Administrative Agent shall have been notified by
any Term Loan Lender that such Lender will not make available to the
Administrative Agent a Term 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 severally 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 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 that are Term 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 Term Loan included in the borrowing. Any
payment by the Borrower shall be without prejudice to any claim the Borrower
may have against a Term Loan Lender that shall have failed to make available
the proceeds of a Term Loan to be made by such Lender (including, if
applicable, treatment of such Lender as a Defaulting Lender in accordance with
the terms of this Agreement).
Section 2.3.
Bid Rate Loans.
(a) Bid
Rate Loans. In addition to borrowings of Revolving Loans, at any time
during the period from the Effective Date to but excluding the Revolving
Termination Date, and so long as the Borrower continues to maintain an Investment
Grade Rating from any two Ratings Agencies, the Borrower may, as set forth in
this Section, request the Revolving Lenders to make offers to make Bid Rate
Loans to the Borrower in Dollars. The Revolving Lenders may, but shall have no
obligation to, make such offers and the Borrower may, but shall have no
obligation to, accept any such offers in the manner set forth in this Section.
(b) Requests
for Bid Rate Loans. When the Borrower wishes to request from the Revolving
Lenders offers to make Bid Rate Loans, it shall give the Administrative Agent
notice (a “Bid Rate Quote Request”) so as to be received no later than 9:00 a.m.
Pacific time on (x) the Business Day immediately preceding the date of
borrowing proposed therein, in the case of an Absolute Rate Auction and
(y) the date 4 Business Days prior to the proposed date of borrowing, in
the case of a LIBOR Auction. The Administrative Agent shall deliver to each Revolving
Lender a copy of each Bid Rate Quote Request promptly upon receipt thereof by
the Administrative Agent. The Borrower may request offers to make Bid Rate
Loans for up to 3 different Interest Periods in any one Bid Rate Quote Request;
provided that if granted each separate Interest Period shall be deemed
to be a separate borrowing (a “Bid Rate Borrowing”). Each Bid Rate Quote
Request shall be substantially in the form of Exhibit O and shall specify
as to each Bid Rate Borrowing all of the following:
(i) the
proposed date of such Bid Rate Borrowing, which shall be a Business Day;
(ii) the aggregate amount of such
Bid Rate Borrowing which shall be in a minimum amount of $10,000,000 and
integral multiples of $1,000,000 in excess thereof which shall not cause any of
the limits specified in Section 2.16. to be violated;
(iii) whether
the Bid Rate Quote Request is for LIBOR Margin Loans or Absolute Rate Loans;
(iv) the duration of the Interest
Period applicable thereto, which shall not extend beyond the Revolving
Termination Date; and
(v) an express statement as to
whether such Bid Rate Loans may be prepaid without premium or penalty.
The
Borrower shall not deliver any Bid Rate Quote Request within 5 Business Days of
the giving of any other Bid Rate Quote Request and the Borrower shall not
deliver more than 2 Bid Rate Quote Requests in any calendar month.
(c) Bid Rate Quotes.
(i) Each Revolving Lender may
submit one or more Bid Rate Quotes, each containing an offer to make a Bid Rate
Loan in response to any Bid Rate Quote Request; provided that, if the
Borrower’s request under Section 2.3.(b) specified more than one Interest
Period, such Revolving Lender may make a single submission containing only one
Bid Rate Quote for each such Interest Period. Each Bid Rate Quote must be
submitted to the Administrative Agent not later than 8:30 a.m. Pacific time
(x) on the proposed date of borrowing, in the case of an Absolute Rate Auction
and (y) on the date 3 Business Days prior to the proposed date of borrowing, in
the case of a LIBOR Auction, and in either case the Administrative Agent shall
disregard any Bid Rate Quote received after such time; provided that the
Revolving Lender then acting as the Administrative Agent may submit a Bid Rate
Quote only if it notifies the Borrower of the terms of the offer contained
therein not later than 30 minutes prior to the latest time by which the Revolving
Lenders must submit applicable Bid Rate Quotes. Any Bid Rate Quote so made
shall be irrevocable except with the consent of the Administrative Agent given
at the request of the Borrower. Such Bid Rate Loans may be funded by a Revolving
Lender’s Designated Lender (if any) as provided in Section 13.5.(h); however,
such Revolving Lender shall not be required to specify in its Bid Rate Quote
whether such Bid Rate Loan will be funded by such Designated Lender.
(ii) Each Bid Rate
Quote shall be substantially in the form of Exhibit P and shall specify:
(A) the proposed date of borrowing
and the Interest Period therefor;
(B) the principal amount of the Bid
Rate Loan for which each such offer is being made; provided that the aggregate
principal amount of all Bid Rate Loans for which a Revolving Lender submits Bid
Rate Quotes (x) may be greater or less than the Revolving Commitment of such Revolving
Lender but (y) shall not exceed the principal amount of the Bid Rate Borrowing
for a particular Interest Period for which offers were requested; provided
further that any Bid Rate Quote shall be in a minimum amount of $5,000,000 and
integral multiples of $100,000 in excess thereof;
(C) in the case of an Absolute Rate
Auction, the rate of interest per annum (rounded upwards, if necessary, to the
nearest one-hundredth of one percent (0.01%)) offered for each such Absolute
Rate Loan (the “Absolute Rate”);
(D) in
the case of a LIBOR Auction, the margin above or below applicable LIBOR (the “LIBOR
Margin”) offered for each such LIBOR Margin Loan, expressed as a percentage
(rounded upwards, if necessary, to the nearest one-hundredth of one percent
(0.01%)) to be added to (or subtracted from) the applicable LIBOR; and
(E) the identity of the quoting Revolving
Lender.
Unless otherwise agreed by the Administrative Agent
and the Borrower, no Bid Rate Quote shall contain qualifying, conditional or
similar language or propose terms other than or in addition to those set forth
in the applicable Bid Rate Quote Request and, in particular, no Bid Rate Quote
may be conditioned upon acceptance by the Borrower of all (or some specified
minimum) of the principal amount of the Bid Rate Loan for which such Bid Rate
Quote is being made.
(d) Notification
by Administrative Agent. The Administrative Agent shall, as promptly as
practicable after the Bid Rate Quotes are submitted (but in any event not later
than 9:30 a.m. Pacific time (x) on the proposed date of borrowing, in the
case of an Absolute Rate Auction or (y) on the date 3 Business Days prior
to the proposed date of borrowing, in the case of a LIBOR Auction), notify the
Borrower of the terms (i) of any Bid Rate Quote submitted by a Revolving Lender
that is in accordance with Section 2.3.(c) and (ii) of any Bid Rate Quote
that amends, modifies or is otherwise inconsistent with a previous Bid Rate
Quote submitted by such Revolving Lender with respect to the same Bid Rate
Quote Request. Any such subsequent Bid Rate Quote shall be disregarded by the Administrative
Agent unless such subsequent Bid Rate Quote is submitted solely to correct a
manifest error in such former Bid Rate Quote. The Administrative Agent’s
notice to the Borrower shall specify (A) the aggregate principal amount of the
Bid Rate Borrowing for which offers have been received and (B) the principal
amounts and Absolute Rates or LIBOR Margins, as applicable, so offered by each Revolving
Lender (identifying the Revolving Lender that made such Bid Rate Quote).
(e) Acceptance
by Borrower.
(i) Not later than 10:30 a.m. Pacific
time (x) on the proposed date of borrowing, in the case of an Absolute Rate
Auction and (y) on the date 3 Business Days prior to the proposed date of
borrowing, in the case of a LIBOR Auction, the Borrower shall notify the Administrative
Agent of its acceptance or nonacceptance of the Bid Rate Quotes so notified to
it pursuant to Section 2.3.(d). which notice shall be in the form of
Exhibit Q. In the case of acceptance, such notice shall specify the
aggregate principal amount of Bid Rate Quotes for each Interest Period that are
accepted. The failure of the Borrower to give such notice by such time shall
constitute nonacceptance. The Borrower may accept any Bid Rate Quote in whole
or in part; provided that:
(A) the aggregate principal amount
of each Bid Rate Borrowing may not exceed the applicable amount set forth in
the related Bid Rate Quote Request;
(B) the aggregate principal amount
of each Bid Rate Borrowing shall comply with the provisions of Section 2.3.(b)(ii)
and together with all other Bid Rate Loans then outstanding shall not cause the
limits specified in Section 2.16. to be violated;
(C) acceptance of Bid Rate Quotes
may be made only in ascending order of Absolute Rates or LIBOR Margins, as
applicable, in each case beginning with the lowest rate so offered;
(D) any acceptance in part by the
Borrower shall be in a minimum amount of $5,000,000 and integral multiples of $100,000
in excess thereof; and
(E) the Borrower may not accept any Bid
Rate Quote that fails to comply with Section 2.3.(c) or otherwise fails to
comply with the requirements of this Agreement.
(ii) If Bid Rate Quotes are made by
two or more Revolving Lenders with the same Absolute Rates or LIBOR Margins, as
applicable, for a greater aggregate principal amount than the amount in respect
of which Bid Rate Quotes are permitted to be accepted for the related Interest
Period, the principal amount of Bid Rate Loans in respect of which such Bid
Rate Quotes are accepted shall be allocated by the Administrative Agent among
such Revolving Lenders in proportion to the aggregate principal amount of such
Bid Rate Quotes. Determinations by the Administrative Agent of the amounts of
Bid Rate Loans shall be conclusive in the absence of manifest error.
(f) Obligation
to Make Bid Rate Loans. The Administrative Agent shall promptly (and in
any event not later than (x) 11:30 a.m. Pacific time on the proposed date
of borrowing of Absolute Rate Loans and (y) on the date 3 Business Days
prior to the proposed date of borrowing of LIBOR Margin Loans) notify each Revolving
Lender that submitted a Bid Rate Quote as to whose Bid Rate Quote has been
accepted and the amount and rate thereof. A Revolving Lender who is notified
that it has been selected to make a Bid Rate Loan may designate its Designated
Lender (if any) to fund such Bid Rate Loan on its behalf, as described in
Section 13.5.(g). Any Designated Lender which funds a Bid Rate Loan shall on
and after the time of such funding become the obligee in respect of such Bid
Rate Loan and be entitled to receive payment thereof when due. No Revolving Lender
shall be relieved of its obligation to fund a Bid Rate Loan, and no Designated
Lender shall assume such obligation, prior to the time the applicable Bid Rate
Loan is funded. Any Revolving Lender whose offer to make any Bid Rate Loan has
been accepted shall, not later than 12:30 p.m. Pacific time on the date
specified for the making of such Loan, make the amount of such Loan available
to the Administrative Agent at its Principal Office in immediately available
funds, for the account of the Borrower. The amount so received by the Administrative
Agent shall, subject to the terms and conditions of this Agreement, be made
available to the Borrower not later than 1:30 p.m. Pacific time on such date by
depositing the same, in immediately available funds, in an account of the
Borrower designated by the Borrower.
(g) No
Effect on Revolving Commitment. Except for the purpose and to the extent
expressly stated in Section 2.13. and 2.16., the amount of any Bid Rate
Loan made by any Revolving Lender shall not constitute a utilization of such Revolving
Lender’s Revolving Commitment.
Section 2.4.
Letters of Credit.
(a) Letters
of Credit. Subject to the terms and conditions of this Agreement,
including without limitation, Section 2.16., each Issuing Bank severally
and not jointly, on behalf of the Revolving Lenders, agrees to issue for the
account of the Borrower (which may be in support of the obligations of the
Borrower or in support of obligations of a Subsidiary of the Borrower) during
the period from and including the Effective Date to, but excluding, the date 30
days prior to the Revolving Termination Date, one or more standby letters of
credit (each a “Letter of Credit”) up to a maximum aggregate Stated Amount at
any one time outstanding not to exceed $60,000,000 as such amount may be
reduced from time to time in accordance with the terms hereof (the “L/C
Commitment Amount”); provided, that an Issuing Bank shall not be
obligated to issue any Letter of Credit if, after giving effect to such
issuance, the aggregate Stated Amount of outstanding Letters of Credit issued
by such Issuing Bank would exceed the lesser of (i) one-third of the L/C
Commitment Amount and (ii) the Commitment of such Issuing Bank in its
capacity as a Lender. The parties hereto agree that each of the Existing
Letters of Credit, if any, shall, from and after the Effective Date, be deemed
to be a Letter of Credit issued under this Agreement.
(b) Terms
of Letters of Credit. At the time of issuance, the amount, form, terms and
conditions of each Letter of Credit, and of any drafts or acceptances
thereunder, shall be subject to approval by the applicable Issuing Bank and the
Borrower, such approvals not to be unreasonably withheld or delayed.
Notwithstanding the foregoing, in no event may (i) the expiration date of
any Letter of Credit extend beyond the date that is 5 days prior to the Revolving
Termination Date, or (ii) any Letter of Credit have a duration in excess of one
year; provided, however, a Letter of Credit may contain a provision providing
for the automatic extension of the expiration date in the absence of a notice
of non-renewal from the applicable Issuing Bank but in no event shall any such
provision permit the extension of the current expiration date of such Letter of
Credit beyond the earlier of (x) the date that is 5 days prior to the
Revolving Termination Date and (y) the date one year after the current
expiration date. Notwithstanding the foregoing, a Letter of Credit may, as a
result of its express terms or as the result of the effect of an automatic
extension provision, have an expiration date of not more than one year beyond
the Revolving Termination Date (any such Letter of Credit being referred to as an
“Extended Letter of Credit”), so long as the Borrower delivers to the
Administrative Agent for its benefit and the benefit of the applicable Issuing
Bank and the Revolving Lenders no later than 5 days prior to the Revolving Termination
Date, Cash Collateral for such Letter of Credit for deposit into the Letter of
Credit Collateral Account in an amount equal to the Stated Amount of such
Letter of Credit; provided, that the obligations of the Borrower under this
Section in respect of such Extended Letters of Credit shall survive the
termination of this Agreement and shall remain in effect until no such Extended
Letters of Credit remain outstanding. If the Borrower fails to provide Cash
Collateral with respect to any Extended Letter of Credit by the date 5 days
prior to the Revolving Termination Date, such failure shall be treated as a
drawing under such Extended Letter of Credit (in an amount equal to the maximum
Stated Amount of such Extended Letter of Credit), which shall be reimbursed (or
participations therein funded) by the Revolving Lenders in accordance with the
immediately following subsections (i) and (j), with the proceeds being
utilized to provide Cash Collateral for such Extended Letter of Credit. The
initial Stated Amount of each Letter of Credit shall be at least $50,000 (or
such lesser amount as may be acceptable to the Borrower, the applicable Issuing
Bank and the Administrative Agent).
(c) Requests
for Issuance of Letters of Credit. The Borrower shall give the Issuing
Bank selected by the Borrower to issue a Letter of Credit and the
Administrative Agent written notice at least 5 Business Days prior to the
requested date of issuance of such Letter of Credit (or such shorter period as
agreed to by the applicable Issuing Bank), such notice to describe in
reasonable detail the proposed terms of such Letter of Credit and the nature of
the transactions or obligations proposed to be supported by such Letter of
Credit, and in any event shall set forth with respect to such Letter of Credit
the proposed (i) initial Stated Amount, (ii) beneficiary, and
(iii) expiration date. The Borrower shall also execute and deliver such
customary applications and agreements for standby letters of credit, and other
forms as reasonably requested from time to time by the applicable Issuing Bank.
Provided the Borrower has given the notice prescribed by the first sentence of
this subsection and delivered such applications and agreements referred to in
the preceding sentence, subject to the other terms and conditions of this
Agreement, including the satisfaction of any applicable conditions precedent
set forth in Section 6.2., the applicable Issuing Bank shall issue the
requested Letter of Credit on the requested date of issuance for the benefit of
the stipulated beneficiary but in no event prior to the date 5 Business Days (or
such shorter period as agreed to by the applicable Issuing Bank) following the date
after which the applicable Issuing Bank has received all of the items required
to be delivered to it under this subsection. The Issuing Bank shall not at any
time be obligated to issue any Letter of Credit if such issuance would conflict
with, or cause the Issuing Bank or any Revolving Lender to exceed any limits
imposed by, any Applicable Law. References herein to “issue” and derivations
thereof with respect to Letters of Credit shall also include extensions or
modifications of any outstanding Letters of Credit, unless the context
otherwise requires. Upon the written request of the Borrower, an Issuing Bank shall
deliver to the Borrower a copy of each Letter of Credit issued by such Issuing
Bank within a reasonable time after the date of issuance thereof. To the extent any term of a Letter of Credit Document
(excluding any certificate or other document presented by a beneficiary in
connection with a drawing under such Letter of Credit) is inconsistent with a
term of any Loan Document, the term of such Loan Document shall control. The
Borrower shall examine the copy of any Letter of Credit or any amendment to a
Letter of Credit that is delivered to it by the Issuing Bank and, in the event
of any claim of noncompliance with the Borrower’s instructions or other
irregularity, the Borrower will promptly (but in any event, within 5 Business
Days after the later of (x) receipt by the beneficiary of such Letter of
Credit of the original of, or amendment to, such Letter of Credit, as
applicable and (y) receipt by the Borrower of a copy of such Letter of
Credit or amendment, as applicable) notify the Issuing Bank. The Borrower
shall be conclusively deemed to have waived any such claim against the Issuing
Bank and its correspondents unless such notice is given as aforesaid.
(d) Reimbursement
Obligations. Upon receipt by an Issuing Bank from the beneficiary of a
Letter of Credit issued by such Issuing Bank of any demand for payment under
such Letter of Credit and such Issuing Bank’s determination that such demand
for payment complies with the requirements of such Letter of Credit, such Issuing
Bank shall promptly notify the Borrower and the Administrative Agent of the
amount to be paid by such Issuing Bank as a result of such demand and the date
on which payment is to be made by such Issuing Bank to such beneficiary in
respect of such demand; provided, however, that an Issuing Bank’s failure to
give, or delay in giving, such notice shall not discharge the Borrower in any
respect from the applicable Reimbursement Obligation. The Borrower hereby
absolutely, unconditionally and irrevocably agrees to pay and reimburse each
applicable Issuing Bank for the amount of each demand for payment under such
Letter of Credit at or prior to the date on which payment is to be made by such
Issuing Bank to the beneficiary thereunder, without presentment, demand,
protest or other formalities of any kind. Upon receipt by an Issuing Bank of
any payment in respect of any Reimbursement Obligation in respect of a Letter
of Credit issued by such Issuing Bank, such Issuing Bank shall promptly pay to each
Revolving Lender that has acquired a participation therein under the second
sentence of the immediately following subsection (i) such Lender’s Revolving
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 applicable Issuing Bank whether or not the Borrower intends to
borrow hereunder to finance its obligation to reimburse the applicable Issuing
Bank for the amount of the related demand for payment and, if it does, the
Borrower shall submit a timely request for such borrowing as provided in the
applicable provisions of this Agreement. If the Borrower fails to so advise the Administrative Agent
and such Issuing Bank, or if the Borrower fails to reimburse the applicable Issuing
Bank for a demand for payment under a Letter of Credit issued by such Issuing
Bank by the date of such payment, the failure of which the applicable Issuing
Bank shall promptly notify the Administrative Agent, then (i) if the
applicable conditions contained in Article VI. would permit the making of
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
Revolving Lender prompt notice of the amount of the Revolving Loan to be made
available to the Administrative Agent not later than 10:00 a.m. Pacific time and
(ii) if such conditions would not permit the making of Revolving Loans,
the provisions of subsection (j) of this Section shall apply. The amount limitations
set forth in the second sentence of Section 2.1.(a) shall not apply to any
borrowing of Base Rate Loans under this subsection.
(f) Effect
of Letters of Credit on Revolving Commitments. Upon the issuance by an Issuing
Bank of any Letter of Credit and until such Letter of Credit shall have expired
or been cancelled, the Revolving Commitment of each Revolving Lender shall be
deemed to be utilized for all purposes of this Agreement in an amount equal to
the product of (i) such Lender’s Revolving Commitment Percentage and
(ii) (A) the Stated Amount of such Letter of Credit plus (B) any
related Reimbursement Obligations then outstanding.
(g) Issuing
Banks’ Duties Regarding Letters of Credit; Unconditional Nature of
Reimbursement Obligations. In examining documents presented in connection
with drawings under Letters of Credit and making payments under such Letters of
Credit against such documents, each Issuing Bank shall only be required to use
the same standard of care as it uses in connection with examining documents
presented in connection with drawings under letters of credit in which it has
not sold participations and making payments under such letters of credit. The
Borrower assumes all risks of the acts and omissions of, or misuse of the
Letters of Credit by, the respective beneficiaries of such Letters of Credit.
In furtherance and not in limitation of the foregoing, none of the Issuing Banks,
Administrative Agent or any of the Lenders shall be responsible for, and the
Borrower’s obligations in respect of Letters of Credit shall not be affected in
any manner by, (i) the form, validity, sufficiency, accuracy, genuineness
or legal effects of any document submitted by any party in connection with the
application for and issuance of or any drawing honored under any Letter of
Credit even if such document should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged; (ii) the validity
or sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any Letter of Credit, or the rights or benefits thereunder
or proceeds thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason; (iii) failure of the beneficiary of any Letter
of Credit to comply fully with conditions required in order to draw upon such
Letter of Credit; (iv) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telex, telecopy, electronic
mail or otherwise, whether or not they be in cipher; (v) errors in
interpretation of technical terms; (vi) any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any Letter of Credit, or of the proceeds thereof; (vii) the
misapplication by the beneficiary of any Letter of Credit or of the proceeds of
any drawing under any Letter of Credit; or (viii) any consequences arising
from causes beyond the control of the Issuing Banks, the Administrative Agent
or the Lenders. None of the above shall affect, impair or prevent the vesting
of any of the Issuing Banks’ or Administrative Agent’s rights or powers
hereunder. Any action taken or omitted to be taken by an Issuing Bank under or
in connection with any Letter of Credit issued by it, if taken or omitted in
the absence of gross negligence or willful misconduct (as determined by a court
of competent jurisdiction in a final, non-appealable judgment), shall not
create against such Issuing Bank any liability to the Borrower, the
Administrative Agent, any other Issuing Bank or any Lender. In this
connection, the obligation of the Borrower to reimburse the applicable Issuing
Bank for any drawing made under any Letter of Credit issued by such Issuing
Bank, and to repay any Revolving Loan made pursuant to the second sentence of
the immediately preceding subsection (e), shall be absolute, unconditional and
irrevocable and shall be paid strictly in accordance with the terms of this
Agreement and any other applicable Letter of Credit Document under all
circumstances whatsoever, including without limitation, the following circumstances:
(A) any lack of validity or enforceability of any Letter of Credit
Document or any term or provisions therein; (B) any amendment or waiver of
or any consent to departure from all or any of the Letter of Credit Documents;
(C) the existence of any claim, setoff, defense or other right which the
Borrower may have at any time against any Issuing Bank, the Administrative
Agent, any Lender, any beneficiary of a Letter of Credit or any other Person,
whether in connection with this Agreement, the transactions contemplated hereby
or in the Letter of Credit Documents or any unrelated transaction; (D) any
breach of contract or dispute between the Borrower, any Issuing Bank, the Administrative
Agent, any Lender or any other Person; (E) any demand, statement or any
other document presented under a Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement therein or
made in connection therewith being untrue or inaccurate in any respect
whatsoever; (F) any non‑application or misapplication by the
beneficiary of a Letter of Credit or of the proceeds of any drawing under such
Letter of Credit; (G) payment by an Issuing Bank under any Letter of
Credit issued by it against presentation of a draft or certificate which does
not strictly comply with the terms of such Letter of Credit; and (H) any
other act, omission to act, delay or circumstance whatsoever that might, but
for the provisions of this Section, constitute a legal or equitable defense to
or discharge of, or provide a right of setoff against, the Borrower’s
Reimbursement Obligations. Notwithstanding anything to the contrary contained
in this Section or Section 13.9., but not in
limitation of the Borrower’s unconditional obligation to reimburse the applicable
Issuing Bank for any drawing made under a Letter of Credit issued by such
Issuing Bank as provided in this Section and to repay any Revolving Loan made
pursuant to the second sentence of the immediately preceding
subsection (e), the Borrower shall have no obligation to indemnify the
Administrative Agent, any Issuing Bank or any Lender in respect of any
liability incurred by the Administrative Agent, such Issuing Bank or such
Lender arising solely out of the gross negligence or willful misconduct of the
Administrative Agent, such Issuing Bank or such Lender in respect of a Letter
of Credit as determined by a court of competent jurisdiction in a final,
non-appealable judgment. Except as otherwise provided in this Section, nothing
in this Section shall affect any rights the Borrower may have with respect to
the gross negligence or willful misconduct of the Administrative Agent, any Issuing
Bank or any Lender with respect to any Letter of Credit.
(h) Amendments,
Etc. The issuance by an Issuing Bank of any amendment, supplement or other
modification to any Letter of Credit issued by it constituting a Credit Event
under clause (b) of the definition of such term shall be subject to the same
conditions applicable under this Agreement to the issuance of new Letters of
Credit (including, without limitation, that the request therefor be made
through the applicable Issuing Bank and the Administrative Agent), and no
amendment, supplement or other modification to any Letter of Credit shall be
issued unless either (i) the respective Letter of Credit affected thereby
would have complied with such conditions had it originally been issued
hereunder in such amended, supplemented or modified form or (ii) the
Administrative Agent and the Revolving Lenders, if any, required by
Section 13.6. shall have consented
thereto. In connection with any such amendment, supplement or other
modification, the Borrower shall pay the fees, if any, payable under the last
sentence of Section 3.5.(c).
(i) Revolving
Lenders’ Participation in Letters of Credit. Immediately upon (i) the
Effective Date with respect to any Existing Letters of Credit and (ii) the
issuance by an Issuing Bank of any other Letter of Credit, each Revolving
Lender shall be deemed to have absolutely, irrevocably and unconditionally
purchased and received from such Issuing Bank, without recourse or warranty, an
undivided interest and participation to the extent of such Lender’s Revolving
Commitment Percentage of the liability of such Issuing Bank with respect to
such Letter of Credit and each Revolving Lender thereby shall absolutely,
unconditionally and irrevocably assume, as primary obligor and not as surety,
and shall be unconditionally obligated to such Issuing Bank to pay and
discharge when due, such Lender’s Revolving Commitment Percentage of such Issuing
Bank’s liability under such Letter of Credit. In addition, upon the making of
each payment by a Revolving Lender to the Administrative Agent for the account
of an Issuing Bank in respect of any Letter of Credit issued by such Issuing
Bank pursuant to the immediately following subsection (j), such Lender
shall, automatically and without any further action on the part of any Issuing
Bank, the Administrative Agent or such Lender, acquire (i) a participation
in an amount equal to such payment in the Reimbursement Obligation owing to such
Issuing Bank by the Borrower in respect of such Letter of Credit and
(ii) a participation in a percentage equal to such Lender’s Revolving
Commitment Percentage in any interest or other amounts payable by the Borrower
in respect of such Reimbursement Obligation (other than the Fees payable to such
Issuing Bank pursuant to the second and the last sentences of Section 3.5.(c)).
(j) Payment
Obligation of Revolving Lenders. Each Revolving Lender severally agrees to
pay to the Administrative Agent, for the account of the applicable Issuing
Bank, on demand in immediately available funds in Dollars the amount of such
Lender’s Revolving Commitment Percentage of each drawing paid by such Issuing
Bank under each Letter of Credit issued by such Issuing Bank to the extent such
amount is not reimbursed by the Borrower pursuant to the immediately preceding
subsection (d); provided, however, that in respect of any drawing under any
Letter of Credit, the maximum amount that any Revolving Lender shall be
required to fund, whether as a Revolving Loan or as a participation, shall not
exceed such Lender’s Revolving Commitment Percentage of such drawing except as
otherwise provided in Section 3.9.(d). If the
notice referenced in the second sentence of Section 2.4.(e) is received by a Revolving
Lender not later than 9:00 a.m. Pacific time, then such Lender shall make such
payment available to the Administrative Agent not later than 12:00 p.m. Pacific
time on the date of demand therefor; otherwise, such payment shall be made
available to the Administrative Agent not later than 11:00 a.m. Pacific time on
the next succeeding Business Day. Each Revolving Lender’s obligation to make such
payments to the Administrative Agent under this subsection, and the Administrative
Agent’s right to receive the same for the account of the applicable Issuing
Bank, shall be absolute, irrevocable and unconditional and shall not be
affected in any way by any circumstance whatsoever, including without
limitation, (i) the failure of any other Revolving Lender to make its
payment under this subsection, (ii) the financial condition of the
Borrower or any other Loan Party, (iii) the existence of any Default or Event
of Default, including any Event of Default described in Section 11.1.(e)
or (f), (iv) the termination of the Revolving Commitments or (v) the
delivery of Cash Collateral in respect of any Extended Letter of Credit. Each
such payment to the Administrative Agent for the account of any Issuing Bank shall
be made without any offset, abatement, withholding or deduction whatsoever.
(k) Information
to Revolving Lenders. Promptly following any change in any Letter of
Credit outstanding, the applicable Issuing Bank shall deliver to the
Administrative Agent, which shall promptly deliver the same to each Revolving
Lender and the Borrower, a notice describing the aggregate amount of all
Letters of Credit issued by such Issuing Bank and outstanding at such time.
Upon the request of any Revolving Lender from time to time, each Issuing Bank
shall deliver any other information reasonably requested by such Lender with
respect to each Letter of Credit issued by such Issuing Bank and then
outstanding. Other than as set forth in this subsection, the Issuing Banks
shall have no duty to notify the Lenders regarding the issuance or other
matters regarding Letters of Credit issued hereunder. The failure of any Issuing
Bank to perform its requirements under this subsection shall not relieve any Revolving
Lender from its obligations under the immediately preceding subsection (j).
(l) Extended
Letters of Credit. Each Revolving Lender confirms that its obligations
under the immediately preceding subsections (i) and (j) shall be reinstated in
full and apply if the delivery of any Cash Collateral in respect of an Extended
Letter of Credit is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid to a trustee, receiver or any
other party, in connection with any proceeding under any Debtor Relief Law or
otherwise.
(m) Applicability
of ISP; Limitation of Liability. Unless otherwise expressly agreed by the
applicable Issuing Bank and the Borrower when a Letter of Credit is issued, the
rules of the ISP shall apply to each standby Letter of Credit issued by such
Issuing Bank. Notwithstanding the foregoing, no Issuing Bank shall be
responsible to the Borrower for, and each Issuing Bank’s rights and remedies
against the Borrower shall not be impaired by, any action or inaction of such
Issuing Bank required or permitted under any law, order, or practice that is
required or permitted to be applied to any Letter of Credit or this Agreement,
including Applicable Law or any order of a jurisdiction where such Issuing Bank
or the beneficiary is located, the practice stated in the ISP or in the
decisions, opinions, practice statements, or official commentary of the ICC
Banking Commission, the Bankers Association for Finance and Trade-International
Financial Services Association (BAFT-IFSA), or the Institute of International
Banking Law & Practice, whether or not any Letter of Credit chooses such
law or practice.
(n) Letters of Credit Issued for
Subsidiaries. Notwithstanding that a Letter of Credit issued or
outstanding hereunder, is in support of any obligations of, or is for the
account of, a Subsidiary of the Borrower, the Borrower shall be obligated to
reimburse the applicable Issuing Bank hereunder for any and all drawings under
such Letter of Credit. The Borrower hereby acknowledges that the issuance of
Letters of Credit for the account of its Subsidiaries inures to the benefit of
the Borrower and that the Borrower’s business derives substantial benefits from
the businesses of such Subsidiaries.
Section 2.5. Swingline Loans.
(a) Swingline
Loans. Subject to the terms and conditions hereof, including without
limitation Section 2.16., the Swingline Lender agrees to make Swingline
Loans in Dollars to the Borrower, during the period from the Effective Date to
but excluding the Swingline Maturity Date, in an aggregate principal amount at
any one time outstanding up to, but not exceeding, the lesser (such lesser
amount being referred to as the “Swingline Availability”) of (i) $150,000,000,
as such amount may be reduced from time to time in accordance with the terms
hereof and (ii) the Revolving Commitment of the Swingline Lender in its
capacity as a Revolving Lender minus the aggregate outstanding principal amount
of Revolving Loans of the Swingline Lender in its capacity as a Revolving
Lender. If at any time the aggregate principal amount of the Swingline Loans
outstanding at such time exceeds the Swingline Availability at such time, the
Borrower shall promptly pay the Administrative Agent for the account of the
Swingline Lender the amount of such excess. Subject to the terms and
conditions of this Agreement, the Borrower may borrow, repay and reborrow
Swingline Loans hereunder.
(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 9:00 a.m. Pacific time on the proposed date of such borrowing. Any telephonic
notice shall include all information to be specified in a written Notice of
Swingline Borrowing and shall be promptly confirmed in writing by the Borrower
pursuant to a Notice of Swingline Borrowing sent to the Swingline Lender by
telecopy on the same day of the giving of such telephonic notice. Not later
than 11:00 a.m. Pacific time on the date of the requested Swingline Loan
and subject to satisfaction of the applicable conditions set forth in Section 6.2.
for such borrowing, 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.
(c) Interest.
Swingline Loans shall bear interest at a per annum rate equal to the Base Rate
as in effect from time to time plus the Applicable Margin for Revolving
Loans that are Base Rate Loans (or at such other rate or rates as the Borrower
and the Swingline Lender may agree from time to time in writing). Interest on
Swingline Loans is solely for the account of the Swingline Lender (except to
the extent a Revolving Lender acquires a participating interest in a Swingline
Loan pursuant to the immediately following subsection (e)). All accrued and
unpaid interest on Swingline Loans shall be payable on the dates and in the
manner provided in Section 2.6. with respect to interest on Base Rate
Loans (except as the Swingline Lender and the Borrower may otherwise agree in
writing in connection with any particular Swingline Loan).
(d) Swingline
Loan Amounts, Etc. Each Swingline Loan shall be in the minimum amount of $500,000
and integral multiples of $100,000 in excess thereof, or such other minimum
amounts agreed to by the Swingline Lender and the Borrower. Any voluntary
prepayment of a Swingline Loan must be in integral multiples of $100,000 or the
aggregate principal amount of all outstanding Swingline Loans (or such other
minimum amounts upon which the Swingline Lender and the Borrower may agree) and
in connection with any such prepayment, the Borrower must give the Swingline
Lender and the Administrative Agent prior written notice thereof no later than
10:00 a.m. Pacific time on the day prior to the date of such prepayment.
The Swingline Loans shall, in addition to this Agreement, be evidenced by the
Swingline Note.
(e) Repayment
and Participations of Swingline Loans. The Borrower agrees to repay each
Swingline Loan within one Business Day of demand therefor by the Swingline
Lender and, in any event, within 10 Business Days after the date such Swingline
Loan was made. Notwithstanding the foregoing, the Borrower shall repay the
entire outstanding principal amount of, and all accrued but unpaid interest on, the Swingline Loans on the Swingline Maturity Date
(or such earlier date as the 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, if it has not yet received notice
from the Borrower of a repayment, on behalf of the Borrower (which hereby
irrevocably directs the Swingline Lender to act on its behalf), request a
borrowing of Revolving Loans that are Base Rate Loans from the Revolving Lenders
in an amount equal to the principal balance of such Swingline Loan. The amount
limitations contained in the second sentence of Section 2.1.(a) shall not
apply to any borrowing of such Revolving 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 9:00 a.m. Pacific time at least one
Business Day prior to the proposed date of such borrowing. Promptly after
receipt of such notice of borrowing of Revolving Loans from the Swingline
Lender under the immediately preceding sentence, the Administrative
Agent shall notify each Revolving Lender of the proposed borrowing. Not later
than 9:00 a.m. Pacific time on the proposed date of such borrowing, each Revolving
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. 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. If the Revolving
Lenders are prohibited from making Revolving Loans required to be made under
this subsection for any reason whatsoever, including without limitation, the existence
of any of the Defaults or Events of Default described in Sections 11.1.(e)
or (f), each Revolving Lender shall purchase from the Swingline Lender, without
recourse or warranty, an undivided interest and participation to the extent of
such Lender’s Revolving Commitment Percentage of such Swingline Loan, by
directly purchasing a participation in such Swingline Loan in such amount and
paying the proceeds thereof to the Administrative Agent for the account of the
Swingline Lender in Dollars and in immediately available funds. A Revolving
Lender’s obligation to purchase such a participation in a Swingline Loan shall
be absolute and unconditional and shall not be affected by any circumstance
whatsoever, including without limitation, (i) any claim of setoff,
counterclaim, recoupment, defense or other right which such Lender or any other
Person may have or claim against the Administrative Agent, the Swingline Lender
or any other Person whatsoever, (ii) the existence of a Default or Event
of Default (including without limitation, any of the Defaults or Events of
Default described in Sections 11.1. (e) or (f)), or the termination of any
Revolving Lender’s Revolving Commitment, (iii) the existence (or alleged
existence) of an event or condition which has had or could have a Material
Adverse Effect, (iv) any breach of any Loan Document by the Administrative
Agent, any Lender, the Borrower or any other Loan Party, or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing. If such amount is not in fact made available to the Swingline
Lender by any Revolving Lender, the Swingline Lender shall be entitled to
recover such amount on demand from such Lender, together with accrued interest
thereon for each day from the date of demand thereof, at the Federal Funds
Rate. If such Lender does not pay such amount forthwith upon the Swingline
Lender’s demand therefor, and until such time as such Lender makes the required
payment, the Swingline Lender shall be deemed to continue to have outstanding
Swingline Loans in the amount of such unpaid participation obligation for all
purposes of the Loan Documents (other than those provisions requiring the other
Revolving Lenders to purchase a participation therein). Further, such Lender
shall be deemed to have assigned any and all payments made of principal and
interest on its Revolving Loans, and any other amounts due it hereunder, to the
Swingline Lender to fund Swingline Loans in the amount of the participation in
Swingline Loans that such Lender failed to purchase pursuant to this Section
until such amount has been purchased (as a result of such assignment or
otherwise).
Section 2.6.
Rates and Payment of Interest on Loans.
(a) Rates.
The Borrower promises to pay to the Administrative Agent for the account of
each Lender interest on the unpaid principal amount of each Loan made by such
Lender for the period from and including the date of
the making of such Loan to but excluding the date such Loan shall be paid in
full, at the following per annum rates:
(i) during such periods as such
Loan is a Base Rate Loan, at the Base Rate (as in effect from time to time),
plus the Applicable Margin for Base Rate Loans of the applicable Class;
(ii) during such periods as such
Loan is a LIBOR Loan, at LIBOR for such Loan for the Interest Period therefor,
plus the Applicable Margin for LIBOR Loans of the applicable Class;
(iii) if such Loan is an Absolute
Rate Loan, at the Absolute Rate for such Loan for the Interest Period therefor
quoted by the Lender making such Loan in accordance with Section 2.3.; and
(iv) if such Loan is a LIBOR Margin
Loan, at LIBOR for such Loan for the Interest Period therefor plus the LIBOR
Margin quoted by the Lender making such Loan in accordance with Section 2.3.
Notwithstanding
the foregoing, while an Event of Default exists under Section 11.1(a), 11.1(e)
or 11.1(f), or in the case of any other Event of Default, at the direction of
the Requisite Lenders, the Borrower shall pay to the Administrative Agent for
the account of each Class of Lenders and the Issuing Banks, as the case may be,
interest at the Post-Default Rate on the outstanding principal amount of any Class
of Loans made by such Lender, on all Reimbursement Obligations and on any other
amount payable by the Borrower hereunder or under the Notes held by such Lender
to or for the account of such Lender (including without limitation, accrued but
unpaid interest to the extent permitted under Applicable Law).
(b) Payment
of Interest. All accrued and unpaid interest on the outstanding principal
amount of each Loan shall be payable (i) monthly in arrears on the first
day of each month, commencing with the first full calendar month occurring
after the Effective Date and (ii) on any date on which the principal
balance of such Loan is due and payable in full (whether at maturity, due to
acceleration or otherwise). Interest payable at the Post-Default Rate shall be
payable from time to time on demand. All determinations by the Administrative
Agent of an interest rate hereunder shall be conclusive and binding on the
Lenders and the Borrower for all purposes, absent manifest error.
(c) Borrower
Information Used to Determine Applicable Interest Rates. The parties
understand that the applicable interest rate for the Obligations and certain
fees set forth herein may be determined and/or adjusted from time to time based
upon certain information to be provided or certified to the Lenders by the Borrower
(the “Borrower Information”). If it is subsequently determined that any such
Borrower Information was incorrect (for whatever reason, including without
limitation because of a subsequent restatement of earnings by the Borrower) at the
time it was delivered to the Administrative Agent, and if the applicable
interest rate or fees calculated for any period were lower than they should
have been had the correct information been timely provided, then, such interest
rate and such fees for such period shall be automatically recalculated using
correct Borrower Information. The Administrative Agent shall promptly notify the
Borrower in writing of any additional interest and fees due because of such
recalculation, and the Borrower shall pay such additional interest or fees due
to the Administrative Agent, for the account of each Lender, within 5 Business
Days of receipt of such written notice. Any recalculation of interest or fees
required by this provision shall survive the termination of this Agreement,
and this provision shall not in any way limit any of the Administrative Agent’s,
any Issuing Bank’s, or any Lender’s other rights under this Agreement.
Section 2.7. Number of Interest Periods.
There
may be no more than (a) 15 different Interest Periods for LIBOR Loans that are
Revolving Loans and Bid Rate Loans, collectively, outstanding at the same time
and (b) 4 different Interest Periods for LIBOR Loans that are Term Loans
outstanding at the same time.
Section 2.8.
Repayment of Loans.
(a) Revolving
Loans. The Borrower shall repay the entire outstanding principal amount
of, and all accrued but unpaid interest on, the Revolving Loans on the Revolving
Termination Date.
(b) Term
Loans. The Borrower shall repay the entire outstanding principal amount
of, and all accrued but unpaid interest on, the Term Loans on the Term Loan
Maturity Date.
(c) Bid
Rate Loans. The Borrower shall repay the entire outstanding principal
amount of, and all accrued but unpaid interest on, each Bid Rate Loan on the
last day of the Interest Period of such Bid Rate Loan.
Section 2.9.
Prepayments.
(a) Optional.
Subject to Section 5.4., (i) the Borrower may prepay any Loan (other
than a Bid Rate Loan) at any time without premium or penalty, and (ii) the
Borrower may prepay at any time without premium or penalty any Bid Rate Loan
that has been made with respect to a Bid Rate Quote Request containing an
express statement that such Bid Rate Loan could be prepaid without premium or
penalty. Any other Bid Rate Loan may only be prepaid with the prior written
consent of the Lender holding such Bid Rate Loan. The Borrower shall give the Administrative
Agent at least 1 Business Day prior written notice of the prepayment of any
Loan that is a Base Rate Loan and at least 3 Business Days prior written notice
of the prepayment of any Loan that is a LIBOR Rate Loan or Bid Rate Loan. Any
such notice may be conditioned upon the receipt of replacement financing or any
other event and may be withdrawn at any time prior to the specified date of
prepayment if such event does not occur. Each voluntary prepayment of Loans
(other than a prepayment of all outstanding Loans of a Class) shall be in an
aggregate minimum amount of $1,000,000 and integral multiples of $100,000 in
excess thereof.
(b) Mandatory.
(i) Revolving Commitment
Overadvance. If at any time the aggregate principal amount of all
outstanding Revolving Loans, Swingline Loans and Bid Rate Loans, together with
the aggregate amount of all Letter of Credit Liabilities, exceeds the aggregate
amount of the Revolving Commitments, the Borrower shall immediately upon demand
pay to the Administrative Agent for the account of the Revolving Lenders, the
amount of such excess.
(ii) Bid Rate Facility
Overadvance. If at any time the aggregate principal amount of all
outstanding Bid Rate Loans exceeds one‑half of the aggregate amount of
all Revolving Commitments at such time, then the Borrower shall immediately pay
to the Administrative Agent for the accounts of the applicable Lenders the
amount of such excess.
(iii) Application of Mandatory
Prepayments. Amounts paid under the preceding subsection (b)(i) shall
be applied to pay all amounts of principal outstanding on the Loans and any
Reimbursement Obligations pro rata in accordance with Section 3.2. and if
any Letters of Credit are outstanding at such time, the remainder, if any,
shall be deposited into the Letter of Credit Collateral Account for application
to any Reimbursement Obligations. Amounts paid under
the preceding subsection (b)(ii) shall be applied in accordance with
Section 3.2.(g). If the Borrower is required to pay any outstanding LIBOR
Loans or Bid Rate Loans by reason of this Section prior to the end of the
applicable Interest Period therefor, the Borrower shall pay all amounts due, if
any, under Section 5.4.
(c) No Effect on Derivatives Contracts. No
repayment or prepayment of the Loans pursuant to this Section shall affect any
of the Borrower’s obligations under any Derivatives Contracts entered into with
respect to the Loans.
Section 2.10.
Continuation.
So
long as no Event of Default exists, the Borrower may on any Business Day, with
respect to any LIBOR Loan, elect to maintain such LIBOR Loan or any portion
thereof as a LIBOR Loan by selecting a new Interest Period for such LIBOR Loan.
Each Continuation of LIBOR Loans of the same Class shall be in an aggregate
minimum amount of $5,000,000 and integral multiples of $1,000,000 in excess of
that amount, and each new Interest Period selected under this Section shall
commence on the last day of the immediately preceding Interest Period. Each
selection of a new Interest Period shall be made by the Borrower giving to the Administrative
Agent a Notice of Continuation not later than 9:00 a.m. Pacific time on
the third Business Day prior to the date of any such Continuation. Such notice
by the Borrower of a Continuation shall be by telecopy, electronic mail or
other similar form of communication in the form of a Notice of Continuation,
specifying (a) the proposed date of such Continuation, (b) the LIBOR
Loans, Class and portions thereof subject to such Continuation and (c) the
duration of the selected Interest Period, all of which shall be specified in
such manner as is necessary to comply with all limitations on Loans outstanding
hereunder. Each Notice of Continuation shall be irrevocable by and binding on
the Borrower once given. Promptly after receipt of a Notice of Continuation,
the Administrative Agent shall notify each Lender holding Loans being Continued
of the proposed Continuation. If the Borrower shall fail to select in a timely
manner a new Interest Period for any LIBOR Loan in accordance with this
Section, such Loan will automatically, on the last day of the current Interest
Period therefor, continue as a LIBOR Loan with an Interest Period of one month;
provided, however that if an Event of Default exists, 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 2.11.
or the Borrower’s failure to comply with any of the terms of such Section.
Section 2.11.
Conversion.
The
Borrower may on any Business Day, upon the Borrower’s giving of a Notice of
Conversion to the Administrative Agent by telecopy, electronic mail or other
similar form of communication, Convert all or a portion of a Loan of one Type
into a Loan of another Type; provided, however, a Base Rate Loan may not be
Converted into a LIBOR Loan if an Event of Default exists. Each Conversion of
Base Rate Loans of the same Class into LIBOR Loans of the same Class shall be
in an aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000
in excess of that amount. Each such Notice of Conversion shall be given not
later than 9:00 a.m. Pacific time 3 Business Days prior to the date of any
proposed Conversion. Promptly after receipt of a Notice of Conversion, the Administrative
Agent shall notify each Lender holding Loans being Converted of the proposed
Conversion. Subject to the restrictions specified above, each Notice of
Conversion shall be by telecopy, electronic mail or other similar form of
communication in the form of a Notice of Conversion specifying (a) the
requested date of such Conversion, (b) the Type and Class of Loan to be
Converted, (c) the portion of such Type of Loan to be Converted,
(d) the Type of Loan such Loan is to be Converted into and (e) if
such Conversion is into a 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.
Section 2.12. Notes.
(a) Notes.
Except in the case of a Lender that has notified the Administrative Agent in
writing that it elects not to receive any Notes, (i) the Revolving Loans
made by each Revolving Lender shall, in addition to this Agreement, also be
evidenced by a Revolving Note, payable to such Revolving Lender in a principal
amount equal to the amount of its Revolving Commitment as originally in effect
and otherwise duly completed, (ii) the Bid Rate Loans made by a Revolving Lender
to the Borrower shall, in addition to this Agreement, also be evidenced by a
Bid Rate Note payable to such Revolving Lender and (iii) the Term Loans
made by a Term Loan Lender shall, in addition to this Agreement, also be
evidenced by a Term Note, payable to such Term Loan Lender in a principal
amount equal to the amount of such Lender’s Term Loan Commitment as originally
in effect and otherwise duly completed. The Swingline Loans made by the
Swingline Lender to the Borrower shall, in addition to this Agreement, also be
evidenced by a Swingline Note payable to the Swingline Lender.
(b) Records.
The date, amount, interest rate, Class, Type and duration of Interest Periods
(if applicable) of each Loan made by each Lender to the Borrower, and each
payment made on account of the principal thereof, shall be recorded by such
Lender on its books and such entries shall be binding on the Borrower absent
manifest error; provided, however, that (i) the failure of a Lender to make any
such record shall not affect the obligations of the Borrower under any of the
Loan Documents and (ii) if there is a discrepancy between such records of
a Lender and the statements of accounts maintained by the Administrative Agent
in the Register, in the absence of manifest error, the statements of account
maintained by the Administrative Agent in the Register shall be controlling.
(c) Lost,
Stolen, Destroyed or Mutilated Notes. Upon receipt by the Borrower of
(i) written notice from a Lender that a Note of such Lender has been lost,
stolen, destroyed or mutilated, and (ii)(A) in the case of loss, theft or
destruction, an unsecured agreement of indemnity from such Lender in form
reasonably satisfactory to the Borrower, or (B) in the case of mutilation,
upon surrender and cancellation of such Note, the Borrower shall at its own
expense execute and deliver to such Lender a new Note dated the date of such
lost, stolen, destroyed or mutilated Note.
Section 2.13.
Voluntary Reductions of the Commitments.
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 all Letter of
Credit Liabilities and the aggregate principal amount of all outstanding Bid
Rate Loans and Swingline Loans) or the Term Loan Commitments at any time and
from time to time without penalty or premium upon not less than 5 Business Days
prior written notice to the Administrative Agent of each such termination or
reduction, which notice shall specify the Class of Commitments subject to such
termination or reduction, the effective date thereof and the amount of any such
reduction (which in the case of any partial reduction of Commitments shall not
be less than $10,000,000 and integral multiples of $1,000,000 in excess of that
amount in the aggregate) and shall be irrevocable once given and effective only
upon receipt by the Administrative Agent (“Prepayment Notice”); provided,
that a Prepayment Notice providing for termination of the Commitments may state
that such Prepayment Notice is conditioned on the closing of other financing
facilities, in which case such Prepayment Notice may be revoked by the Borrower
(by notice to the Administrative Agent on or prior to the date such termination
of the Commitments is to become effective) if such condition is not satisfied.
Promptly after receipt of a Prepayment Notice with respect to a Class of Commitments,
the Administrative Agent shall notify each Lender of such Class of the proposed
termination or reduction. Commitments, once reduced or terminated pursuant to
this Section, may not be increased or reinstated. If the Commitments of a
Class are terminated or reduced to zero, the Borrower shall pay all fees on the
Commitments so reduced or terminated that have accrued to the date of such
reduction or termination to the Administrative Agent
for the account of the Lenders of the applicable Class, including but not
limited to any applicable compensation due to any Lender in accordance with
Section 5.4.
Section 2.14. Extension of Revolving Termination Date.
The
Borrower may, not more than two times, request that the Administrative Agent
and the Revolving Lenders extend the current Revolving Termination Date by 6
months per each request. The Borrower may exercise such right only by
executing and delivering to the Administrative Agent at least 30 days but not
more than 120 days prior to the current Revolving Termination Date, a written
request for such extension (a “Revolving Extension Request”). The
Administrative Agent shall notify the Lenders if it receives a Revolving
Extension Request promptly upon receipt thereof. Subject to satisfaction of
the following conditions, the Revolving Termination Date shall be extended for six
months effective upon receipt by the Administrative Agent of a Revolving
Extension Request and payment of the fee referred to in the following
clause (y): (x) immediately prior to such extension and immediately
after giving effect thereto, (A) no Default or Event of Default shall
exist and (B) the representations and warranties made or deemed made by
the Borrower and each other Loan Party in the Loan Documents to which any of
them is a party, shall be true and correct in all material respects (except in
the case of a representation or warranty qualified by materiality, in which
case such representation or warranty shall be true and correct in all respects)
on and as of the date of such extension with the same force and effect as if
made on and as of such date except to the extent that such representations and
warranties expressly relate solely to an earlier date (in which case such
representations and warranties shall have been true and correct in all material
respects (except in the case of a representation or warranty qualified by
materiality, in which case such representation or warranty shall be true and
correct in all respects) on and as of such earlier date) and except for changes
in factual circumstances specifically and expressly permitted under the Loan
Documents or waived or consented to by Requisite Lenders in accordance with the
provisions of Section 13.6. and (y) the Borrower shall have paid the Fees
payable under Section 3.5.(e). At any time prior to the effectiveness of
any such extension, upon the Administrative Agent’s request, the Borrower shall
deliver to the Administrative Agent a certificate from the chief executive
officer or chief financial officer certifying the matters referred to in the
immediately preceding clauses (x)(A) and (x)(B). The Termination Date may be
extended only two times pursuant to this Section.
Section 2.15.
Expiration Date of Letters of Credit Past Revolving Commitment Termination.
If
on the date the Revolving Commitments are terminated or reduced to zero
(whether voluntarily, by reason of the occurrence of an Event of Default or
otherwise) there are any Letters of Credit outstanding hereunder and the
aggregate Stated Amount of such Letters of Credit exceeds the balance of
available funds on deposit in the Letter of Credit Collateral Account, then the
Borrower shall, on such date, pay to the Administrative Agent, for its benefit
and the benefit of the Revolving Lenders and the Issuing Banks, for deposit
into the Letter of Credit Collateral Account, an amount of money equal to the
amount of such excess.
Section 2.16.
Amount Limitations.
Notwithstanding
any other term of this Agreement or any other Loan Document, no Lender shall be
required to make a Loan, no Revolving Lender shall make any Bid Rate Loan, the
Issuing Banks shall not be required to issue Letters of Credit and no reduction
of the Revolving Commitments pursuant to Section 2.13. shall take effect,
if immediately after the making of such Loan, the issuance of such Letter of
Credit or such reduction in the Revolving Commitments:
(a) the aggregate principal amount
of all outstanding Revolving Loans, Bid Rate Loans and Swingline Loans,
together with the aggregate amount of all Letter of Credit Liabilities, would
exceed the aggregate amount of the Revolving Commitments at such time; or
(b) the
aggregate principal amount of all outstanding Bid Rate Loans would exceed 50.0%
of the aggregate amount of the Revolving Commitments at such time.
Section 2.17.
Increase in Revolving Commitments.
The Borrower shall have the right at any time after
the Term Loan Availability Termination Date and prior to the Revolving
Termination Date to request increases in the aggregate amount of the Revolving Commitments
by providing written notice thereof to the Administrative Agent, which notice
shall be irrevocable once given; provided, however, that after
giving effect to any such increases the aggregate amount of the Revolving Commitments
shall not exceed $3,000,000,000. Each such increase in the Revolving Commitments
must be an aggregate minimum amount of $50,000,000 and integral multiples of $10,000,000
in excess thereof (or, in each case, in such less amounts as may be acceptable
to the Administrative Agent and the Borrower). The Administrative Agent, in
consultation with the Borrower, shall manage all aspects of the syndication of
such increase in the Revolving Commitments so as to achieve a syndication of
such increase reasonably satisfactory to the Administrative Agent and the
Borrower, including decisions as to the selection of the existing Lenders
and/or other banks, financial institutions and other institutional lenders to
be approached with respect to any such increase and the allocations of any increase
in the Revolving Commitments among such existing Lenders and/or other banks,
financial institutions and other institutional lenders, in each case, as
reasonably agreed to by the Administrative Agent and the Borrower. No Lender
shall be obligated in any way whatsoever to increase its Revolving Commitment
or provide a new Revolving Commitment, and any new Lender becoming a party to
this Agreement in connection with any such requested increase must be an
Eligible Assignee. If a new Revolving Lender becomes a party to this
Agreement, or if any existing Revolving Lender is increasing its Revolving Commitment,
such Lender shall on the date it becomes a Revolving Lender hereunder (or in
the case of an existing Revolving Lender, increases its Revolving Commitment)
(and as a condition thereto) purchase from the other Revolving Lenders its Revolving
Commitment Percentage (determined with respect to the Revolving Lenders’ respective
Revolving Commitments after giving effect to the increase of Revolving Commitments)
of any outstanding Revolving Loans, by making available to the Administrative
Agent for the account of such other Revolving Lenders, in same day funds, an
amount equal to (A) the portion of the outstanding principal amount of
such Revolving Loans to be purchased by such Lender, plus (B) the
aggregate amount of payments previously made by the other Revolving Lenders
under Section 2.4.(j) that have not been repaid, plus (C) interest
accrued and unpaid to and as of such date on such portion of the outstanding
principal amount of such Revolving Loans. The Borrower shall pay to the Revolving
Lenders amounts payable, if any, to such Lenders under Section 5.4. as a
result of the prepayment of any such Revolving Loans. Effecting any increase
of the Revolving Commitments under this Section is subject to the following
conditions precedent: (x) no Default or Event of Default shall be in
existence on the effective date of such increase, (y) the representations and
warranties made or deemed made by the Borrower and any other Loan Party in any
Loan Document to which such Loan Party is a party shall be true and correct in
all material respects (except in the case of a representation or warranty
qualified by materiality, in which case such representation or warranty shall
be true and correct in all respects) on the effective date of such increase
except to the extent that such representations and warranties expressly relate
solely to an earlier date (in which case such representations and warranties
shall have been true and correct in all material respects (except in the case
of a representation or warranty qualified by materiality, in which case such
representation or warranty shall be true and correct in all respects) on and as
of such earlier date) and except for changes in factual circumstances
specifically and expressly permitted hereunder or waived or consented to by the
Requisite Lenders in accordance with the provisions of Section 13.6., and (z) the
Administrative Agent shall have received each of the
following, in form and substance satisfactory to the Administrative Agent: (i)
if not previously delivered to the Administrative Agent, copies certified by
the Secretary or Assistant Secretary of (A) all corporate or other necessary
action taken by the Borrower to authorize such increase and (B) all corporate or
other necessary action taken by each Guarantor authorizing the guaranty of such
increase; (ii) an opinion of counsel to the Borrower and the Guarantors,
and addressed to the Administrative Agent and the Lenders covering such matters
with respect to the increase of the Commitments as reasonably requested by the
Administrative Agent; and (iii) except in the case of a Lender that has
requested not to receive Notes, new Revolving Notes and/or Bid Rate Notes executed
by the Borrower, payable to any such new Revolving Lenders and replacement
Revolving Notes and/or Bid Rate Notes, as applicable, executed by the Borrower,
payable to any such existing Revolving Lenders increasing their respective Revolving
Commitments, in each case, in the amount of such Lender’s Revolving Commitment
at the time of the effectiveness of the applicable increase in the aggregate
amount of the Revolving Commitments. In connection with any increase in the
aggregate amount of the Revolving Commitments pursuant to this Section 2.17.
any Lender becoming a party hereto shall (1) execute such documents and
agreements as the Administrative Agent may reasonably request and (2) in
the case of any Lender that is organized under the laws of a jurisdiction
outside of the United States of America, provide to the Administrative Agent,
its name, address, tax identification number and/or such other information as
shall be necessary for the Administrative Agent to comply with “know your
customer” and anti-money laundering rules and regulations, including without
limitation, the Patriot Act.
Section 2.18.
Funds Transfer Disbursements.
The Borrower hereby authorizes the Administrative
Agent to disburse the proceeds of any Loan made by the Lenders or any of their
Affiliates pursuant to the Loan Documents as requested by an authorized
representative of the Borrower to any of the accounts designated in the Disbursement
Instruction Agreement.
Article III. Payments, Fees and Other
General Provisions
Section 3.1.
Payments.
(a) Payments
by Borrower. Except to the extent otherwise provided herein, all payments
of principal, interest, Fees and other amounts to be made by the Borrower under
this Agreement, the Notes or any other Loan Document shall be made in Dollars,
in immediately available funds, without setoff, deduction or counterclaim
(excluding Taxes required to be withheld pursuant to Section 3.10.), to
the Administrative Agent at the Principal Office, not later than 11:00 a.m. Pacific
time on the date on which such payment shall become due (each such payment made
after such time on such due date to be deemed to have been made on the next
succeeding Business Day). Subject to Section 11.5., the Borrower shall, at the
time of making each payment under this Agreement or any other Loan Document,
specify to the Administrative Agent the amounts payable by the Borrower
hereunder to which such payment is to be applied. Each payment received by the
Administrative Agent for the account of a Lender under this Agreement or any
Note shall be paid to such Lender by wire transfer of immediately available
funds in accordance with the wiring instructions provided by such Lender to the
Administrative Agent from time to time, for the account of such Lender at the
applicable Lending Office of such Lender. Each payment received by the
Administrative Agent for the account of an Issuing Bank under this Agreement
shall be paid to such Issuing Bank by wire transfer of immediately available
funds in accordance with the wiring instructions provided by such Issuing Bank
to the Administrative Agent from time to time, for the account of such Issuing
Bank. If the Administrative Agent fails to pay such amounts to such Lender or such
Issuing Bank, as the case may be, within one Business Day of receipt of such
amounts, the Administrative Agent shall pay interest on such amount until paid at
a rate per annum equal to the Federal Funds Rate from time to time in effect.
If the due date of any payment under this Agreement or any other Loan Document would otherwise fall on a day which is not a
Business Day such date shall be extended to the next succeeding Business Day
and interest shall continue to accrue at the rate, if any, applicable to such
payment for the period of such extension.
(b) Presumptions
Regarding Payments by Borrower. Unless the Administrative Agent shall have
received notice from the Borrower prior to the date on which any payment is due
to the Administrative Agent for the account of the Lenders or an Issuing Bank
hereunder that the Borrower will not make such payment, the Administrative
Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may (but shall not be obligated to), in reliance upon
such assumption, distribute to the Lenders or such Issuing Bank, as the case
may be, the amount due. In such event, if the Borrower has not in fact made
such payment, then each of the Lenders or such Issuing Bank, as the case may
be, severally agrees to repay to the Administrative Agent on demand that amount
so distributed to such Lender or such Issuing Bank, with interest thereon, for
each day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the greater of
the Federal Funds Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation.
Section 3.2.
Pro Rata Treatment.
Except
to the extent otherwise provided herein: (a) each borrowing from the
Revolving Lenders under Sections 2.1.(a), 2.4.(e) and 2.5.(e) shall be
made from the Revolving Lenders, each payment of the fees under Sections 3.5.(b)(i),
the first sentence of 3.5.(c), and 3.5.(e) shall be made for the account of the
Revolving Lenders, and each termination or reduction of the amount of the
Revolving Commitments under Section 2.13. shall be applied to the
respective Revolving Commitments of the Revolving Lenders, pro rata according
to the amounts of their respective Revolving Commitments; (b) each payment
or prepayment of principal of Revolving Loans shall be made for the account of
the Revolving Lenders pro rata in accordance with the respective unpaid principal
amounts of the Revolving Loans held by them, provided that, subject to
Section 3.9., if immediately prior to giving effect to any such payment in
respect of any Revolving Loans the outstanding principal amount of the
Revolving Loans shall not be held by the Revolving Lenders pro rata in
accordance with their respective Revolving Commitments in effect at the time
such Revolving Loans were made, then such payment shall be applied to the
Revolving Loans in such manner as shall result, as nearly as is practicable, in
the outstanding principal amount of the Revolving Loans being held by the
Revolving Lenders pro rata in accordance with such respective Revolving
Commitments; (c) the making of Term Loans under Section 2.2.(a) shall
be made from the Term Loan Lenders, pro rata according to the amounts of their
respective Term Loan Commitments; (d) (i) each payment of the fees under
Section 3.5.(b)(ii) shall be made for the account of the Term Loan Lenders
pro rata in accordance with their respective Term Loan Commitment and (ii) each
payment or prepayment of principal of Term Loans shall be made for the account
of the Term Loan Lenders pro rata in accordance with the respective unpaid
principal amounts of the Term Loans held by them; (e) each payment of
interest on Loans of a Class shall be made for the account of the Lenders of
such Class pro rata in accordance with the amounts of interest on such Loans of
such Class then due and payable to the respective Lenders; (f) the Conversion
and Continuation of Loans of a particular Type and Class (other than
Conversions provided for by Sections 5.1.(c) and 5.5.) shall be made pro
rata among the Lenders according to the amounts of their respective Loans and
the then current Interest Period for each such Lender’s portion of each such
Loan of such Type and Class shall be coterminous; (g) each prepayment of
principal of Bid Rate Loans pursuant to Section 2.9.(b)(iii) shall be made
for account of the Lenders then owed Bid Rate Loans pro rata in accordance with
the respective unpaid principal amounts of the Bid Rate Loans then owing to
each such Lender; (h) the Revolving Lenders’ participation in, and payment
obligations in respect of, Swingline Loans under Section 2.5., shall be in
accordance with their respective Revolving Commitment Percentages; and
(i) the Revolving Lenders’ participation in, and payment obligations in
respect of, Letters of Credit under Section 2.4., shall be in accordance
with their respective Revolving Commitment Percentages.
All payments of principal, interest, fees and other amounts in respect of the
Swingline Loans shall be for the account of the Swingline Lender only (except
to the extent any Revolving Lender shall have acquired a participating interest
in any such Swingline Loan pursuant to Section 2.5.(e), in which case such
payments shall be pro rata in accordance with such participating interests).
Section 3.3.
Sharing of Payments, Etc.
If
a Lender shall obtain payment of any principal of, or interest on, any Loan of
a Class made by it to the Borrower under this Agreement or shall obtain payment
on any other Obligation owing by the Borrower or any other Loan Party through
the exercise of any right of set-off, banker’s lien, counterclaim or similar
right or otherwise or through voluntary prepayments directly to a Lender or
other payments made by or on behalf of the Borrower or any other Loan Party to
a Lender not in accordance with the terms of this Agreement and such payment
should be distributed to the Lenders of the same Class in accordance with
Section 3.2. or Section 11.5., as applicable, such Lender shall
promptly purchase from the other Lenders of such Class participations in (or,
if and to the extent specified by such Lender, direct interests in) the Loans of
such Class made by the other Lenders of such Class or other Obligations owed to
such other Lenders in such amounts, and make such other adjustments from time
to time as shall be equitable, to the end that all the Lenders of such Class shall
share the benefit of such payment (net of any reasonable expenses which may
actually be incurred by such Lender in obtaining or preserving such benefit) in
accordance with the requirements of Section 3.2. or Section 11.5., as
applicable. To such end, all the Lenders of such Class shall make appropriate
adjustments among themselves (by the resale of participations sold or
otherwise) if such payment is rescinded or must otherwise be restored. The
Borrower agrees that any Lender of such Class so purchasing a participation (or
direct interest) in the Loans or other Obligations owed to such other Lenders of
such Class may exercise all rights of set-off, banker’s lien, counterclaim or
similar rights with respect to such participation as fully as if such Lender
were a direct holder of Loans of such Class in the amount of such
participation. Nothing contained herein shall require any Lender to exercise
any such right or shall affect the right of any Lender to exercise and retain
the benefits of exercising, any such right with respect to any other
indebtedness or obligation of the Borrower.
Section 3.4.
Several Obligations.
No Lender shall be responsible for the failure of any
other Lender to make a Loan or to perform any other obligation to be made or
performed by such other Lender hereunder, and the failure of any Lender to make
a Loan or to perform any other obligation to be made or performed by it
hereunder shall not relieve the obligation of any other Lender to make any Loan
or to perform any other obligation to be made or performed by such other
Lender.
Section 3.5.
Fees.
(a) Closing
Fee. On the Effective Date, the Borrower agrees to pay to the Administrative
Agent, the Lead Arrangers and each Lender all fees as have been agreed to in
writing by the Borrower, the Administrative Agent and the Lead Arrangers.
(b) Facility
and Ticking Fees.
(i)
During the period from the
Effective Date to but excluding the Revolving Termination Date, the Borrower
agrees to pay to the Administrative Agent for the account of the Revolving Lenders
a facility fee equal to the daily aggregate amount of the Revolving Commitments
(whether or not utilized) times a rate per annum equal to the Applicable Revolving
Facility Fee. Such fee shall be payable quarterly in
arrears on the first day of each January, April, July and October during the
term of this Agreement and on the Revolving Termination Date or any earlier
date of termination of the Revolving Commitments or reduction of the Revolving Commitments
to zero. The Borrower acknowledges that the fee payable hereunder is a bona
fide commitment fee and is intended as reasonable compensation to the Revolving
Lenders for committing to make funds available to the Borrower as described
herein and for no other purposes.
(ii) Term Loan Ticking Fees. If any Term
Loan Commitments remain in effect on the date that is 61 days following the
Effective Date, then from the date that is 61 days following the Effective Date
through the Term Loan Availability Termination Date, the Borrower agrees to pay
to the Administrative Agent for the account of the Term Loan Lenders a ticking fee
equal to the sum of the daily amount of the Term Loan Commitments multiplied by
a per annum rate equal to 0.15%. Such fee shall be computed on a daily basis
and payable quarterly in arrears, on the date of any reduction of the Term Loan
Commitments pursuant to 2.13. on such terminated amount and on the Term Loan
Availability Termination Date.
(c) Letter
of Credit Fees. The Borrower agrees to pay to the Administrative Agent for
the account of each Revolving Lender a letter of credit fee at a rate per annum
equal to the Applicable Margin for Revolving Loans that are LIBOR Loans times
the daily average Stated Amount of each Letter of Credit for the period from
and including the date of issuance of such Letter of Credit (x) to and
including the date such Letter of Credit expires or is cancelled or terminated or
(y) to but excluding the date such Letter of Credit is drawn in full; provided,
however, notwithstanding anything to the contrary contained herein, during
any period that the Post-Default rate is payable in accordance with Section 2.6.(a),
such letter of credit fees shall accrue at the Post‑Default Rate. In
addition to such fees, the Borrower shall pay to each Issuing Bank solely for
its own account, a fronting fee in respect of each Letter of Credit issued by
such Issuing Bank equal to one‑eighth of one percent (0.125%) of the
initial Stated Amount of such Letter of Credit; provided, however,
in no event shall the aggregate amount of such fee in respect of any Letter of
Credit be less than $500. The fees provided for in this subsection shall be
nonrefundable and payable, in the case of the fee provided for in the first
sentence, in arrears (i) quarterly on the first day of January, April,
July and October, (ii) on the Revolving Termination Date, (iii) on
the date the Revolving Commitments are terminated or reduced to zero and
(iv) thereafter from time to time on demand of the Administrative Agent
and in the case of the fee provided for in the second sentence, at the time of
issuance of such Letter of Credit. The Borrower shall pay directly to the applicable
Issuing Bank from time to time on demand all commissions, charges, costs and
expenses in the amounts customarily charged or incurred by such Issuing Bank
from time to time in like circumstances with respect to the issuance,
amendment, renewal or extension of any Letter of Credit or any other
transaction relating thereto.
(d) Bid
Rate Loan Fees. The Borrower agrees to pay to the Administrative Agent such
fees for services rendered by the Administrative Agent in connection with the
Bid Rate Loans as shall be separately agreed upon between the Borrower and the
Administrative Agent.
(e) Revolving
Extension Fee. Each time the Borrower exercises its right to extend the
Revolving Termination Date in accordance with Section 2.14., the Borrower shall
pay to the Administrative Agent for the account of each Revolving Lender a fee
equal to three‑fortieths of one percent (0.075%) of the amount of such
Revolving Lender’s Revolving Commitment (whether or not utilized). Such fee
shall be paid to the Administrative Agent prior to, and as a condition to, such
extension.
(f) Administrative and Other
Fees. The Borrower agrees to pay the administrative and other fees of the Administrative
Agent as provided in the Fee Letter and as may be otherwise agreed to in writing
from time to time by the Borrower and the Administrative Agent.
Section 3.6.
Computations.
Unless
otherwise expressly set forth herein, any accrued interest on any Loan, 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.
Section 3.7.
Usury.
In
no event shall the amount of interest due or payable on the Loans or other
Obligations exceed the maximum rate of interest allowed by Applicable Law and,
if any such payment is paid by the Borrower or any other Loan Party or received
by any Lender, then such excess sum shall be credited as a payment of
principal, unless the Borrower shall notify the respective Lender in writing
that the Borrower elects to have such excess sum returned to it forthwith. It
is the express intent of the parties hereto that the Borrower not pay and the
Lenders not receive, directly or indirectly, in any manner whatsoever, interest
in excess of that which may be lawfully paid by the Borrower under Applicable
Law. The parties hereto hereby agree and stipulate that the only charge
imposed upon the Borrower for the use of money in connection with this
Agreement is and shall be the interest specifically described in Section 2.6.(a)(i)
through (iv) and, with respect to Swingline Loans, in Section 2.5.(c).
Notwithstanding the foregoing, the parties hereto further agree and stipulate
that all agency fees, syndication fees, facility fees, ticking fees, closing
fees, letter of credit fees, underwriting fees, default charges, late charges,
funding or “breakage” charges, increased cost charges, attorneys’ fees and
reimbursement for costs and expenses paid by the Administrative Agent or any
Lender to third parties or for damages incurred by the Administrative Agent or
any Lender, in each case, in connection with the transactions contemplated by
this Agreement and the other Loan Documents, are charges made to compensate the
Administrative Agent or any such Lender for underwriting or administrative
services and costs or losses performed or incurred, and to be performed or
incurred, by the Administrative Agent and the Lenders in connection with this
Agreement and shall under no circumstances be deemed to be charges for the use
of money. All charges other than charges for the use of money shall be fully
earned and nonrefundable when due.
Section 3.8.
Statements of Account; Bill Lead Date Request.
(a) The
Administrative Agent will account to the Borrower monthly with a statement of
Loans, accrued interest and Fees, charges and payments made pursuant to this
Agreement and the other Loan Documents, and, subject to the entries in the
Register, which shall be controlling, such account rendered by the Administrative
Agent shall be deemed conclusive upon the Borrower absent manifest error. The
failure of the Administrative Agent to deliver such a statement of accounts
shall not relieve or discharge the Borrower from any of its Obligations.
(b) By
written notice to the Administrative Agent, the Borrower may request to receive
monthly billings on a date (the “Bill Lead Date”) that is prior to the first
day of a month. The Administrative Agent will submit to the Borrower monthly
billings, which will consist of the actual interest and principal due through
the Bill Lead Date plus projected interest and principal due through the
balance, if any, of such month. Any necessary adjustments in the applicable
interest rate and/or principal payments due or made between a Bill Lead Date
and the end of a month will be reflected as an additional charge (or credit) in
the billing for the next following month. Neither the failure of the
Administrative Agent to submit a Bill Lead Date billing nor any error in any
such billing will excuse the Borrower’s obligation to make full payment of all
amounts due under this Agreement. In its sole discretion, the Administrative Agent may cancel or modify the terms of
such request which cancellation or modification will be effective upon written
notification to the Borrower. Should the Borrower request a Bill Lead Date,
the Administrative Agent shall not be required to prepare a month end invoice.
Section 3.9.
Defaulting Lenders.
Notwithstanding
anything to the contrary contained in this Agreement, if any Lender becomes a
Defaulting Lender, then, until such time as such Lender is no longer a
Defaulting Lender, to the extent permitted by Applicable Law:
(a) Waivers
and Amendments. Such Defaulting Lender’s right to approve or disapprove
any amendment, waiver or consent with respect to this Agreement shall be
restricted as set forth in the definitions of Requisite Lenders and Requisite
Class Lenders and in Section 13.6.
(b) Defaulting
Lender Waterfall. Any payment of principal, interest, Fees or other
amounts received by the Administrative Agent for the account of such Defaulting
Lender (whether voluntary or mandatory, at maturity, pursuant to Article XI.
or otherwise) or received by the Administrative Agent from a Defaulting Lender
pursuant to Section 13.3. shall be applied at such time or times as may be
determined by the Administrative Agent as follows: first, to the payment
of any amounts owing by such Defaulting Lender to the Administrative Agent
hereunder; second, in the case of a Defaulting Lender that is a
Revolving Lender, to the payment on a pro rata basis of any amounts owing by
such Defaulting Lender to the Issuing Banks and the Swingline Lender hereunder;
third, in the case of a Defaulting Lender that is a Revolving Lender, to
Cash Collateralize the Issuing Banks’ Fronting Exposures with respect to such
Defaulting Lender in accordance with subsection (e) below; fourth,
as the Borrower may request (so long as no Default or Event of Default exists),
to the funding of any Loan in respect of which such Defaulting Lender has
failed to fund its portion thereof as required by this Agreement, as determined
by the Administrative Agent; fifth, if so determined by the
Administrative Agent and the Borrower, to be held in a deposit account and
released pro rata in order to (x) satisfy such Defaulting Lender’s
potential future funding obligations with respect to Loans under this Agreement
and (y) in the case of a Defaulting Lender that is a Revolving Lender, Cash
Collateralize the Issuing Banks’ future Fronting Exposures with respect to such
Defaulting Lender with respect to future Letters of Credit issued under this
Agreement, in accordance with subsection (e) below; sixth, to the
payment of any amounts owing to the Lenders, the Issuing Banks or the Swingline
Lender as a result of any judgment of a court of competent jurisdiction
obtained by any Lender, any Issuing Bank 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 of any Class or amounts owing by such Defaulting
Lender under Section 2.4.(j) in respect of Letters of Credit (such amounts
“L/C Disbursements”), in respect of which such Defaulting Lender has not
fully funded its appropriate share, and (y) such Loans were made or the
related Letters of Credit were issued at a time when the conditions set forth
in Article VI. were satisfied or waived, such payment shall be applied
solely to pay the Loans of such Class of, and L/C Disbursements owed to, all
Non-Defaulting Lenders of the applicable Class on a pro rata basis prior to
being applied to the payment of any Loans of, or L/C Disbursements owed to,
such Defaulting Lender until such time as all Loans of such Class and, as
applicable, funded and unfunded participations in Letter of Credit Liabilities
and Swingline Loans are held by the Revolving Lenders pro rata in accordance
with their respective Revolving Commitment Percentages (determined without
giving effect to the immediately following subsection (d)) and all Term
Loans (if any) are held by the Term Loan Lenders pro rata as if there had been
no Defaulting Lenders that are Term Loan Lenders. Any
payments, prepayments or other amounts paid or payable to a Defaulting Lender
that are applied (or held) to pay amounts owed by a Defaulting Lender or to
post Cash Collateral pursuant to this subsection shall be deemed paid to and
redirected by such Defaulting Lender, and each Lender irrevocably consents
hereto.
(c) Certain Fees.
(i) No Defaulting Lender shall be
entitled to receive any Fee payable under Section 3.5.(b) for any period
during which that Lender is a Defaulting Lender (and the Borrower shall not be
required to pay any such fee that otherwise would have been required to have
been paid to that Defaulting Lender).
(ii) Each Defaulting Lender that is
a Revolving Lender shall be entitled to receive the Fee payable under Section 3.5.(c) for any period during which that Lender is a
Defaulting Lender only to the extent allocable to its Revolving Commitment
Percentage of the stated amount of Letters of Credit for which it has provided
Cash Collateral pursuant to the immediately
following subsection (c).
(iii) With respect to any Fee not
required to be paid to any Defaulting Lender that is a Revolving Lender pursuant
to the immediately preceding clause (ii), the Borrower shall (x) pay
to each Non‑Defaulting Lender that is a Revolving 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 each Issuing
Bank and the Swingline Lender, as applicable, the amount of any such Fee
otherwise payable to such Defaulting Lender to the extent allocable to such
Issuing Bank’s or 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. In the case of a Defaulting
Lender that is a Revolving Lender, all or any part of such Defaulting Lender’s
participation in Letter of Credit Liabilities and Swingline Loans shall be
reallocated among the Non-Defaulting Lenders that are Revolving Lenders in
accordance with their respective Revolving Commitment Percentages (determined
without regard to such Defaulting Lender’s Revolving Commitment) but only to
the extent that (x) the conditions set forth in Article VI. are
satisfied at the time of such reallocation (and, 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 Non-Defaulting Lender that is a Revolving 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 Revolving Lender having
become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a
result of such Non-Defaulting Lender’s increased exposure following such
reallocation.
(e) Cash Collateral, Repayment
of Swingline Loans.
(i) If the reallocation described
in the immediately preceding subsection (d) above cannot, or can only
partially, be effected, the Borrower shall, without prejudice to any right or
remedy available to it hereunder or under law, (x) first, prepay Swingline
Loans in an amount equal to the Swingline Lender’s Fronting Exposure and
(y) second, Cash Collateralize each Issuing Bank’s Fronting Exposure in
accordance with the procedures set forth in this subsection.
(ii) At any time that there shall
exist a Defaulting Lender that is a Revolving Lender, within 1 Business Day
following the written request of the Administrative Agent or any Issuing Bank
(with a copy to the Administrative Agent), the Borrower shall Cash Collateralize
such Issuing Bank’s Fronting Exposure with respect to such Defaulting Lender
(determined after giving effect to the immediately preceding
subsection (d) and any Cash Collateral provided by such Defaulting Lender)
in an amount not less than the aggregate Fronting
Exposure of such Issuing Bank with respect to Letters of Credit issued by such
Issuing Bank and outstanding at such time.
(iii) The Borrower, and to the
extent provided by any Defaulting Lender that is a Revolving Lender, such
Defaulting Lender, hereby grant to the Administrative Agent, for the benefit of
the Issuing Banks, and agree to maintain, a first priority security interest in
all such Cash Collateral as security for the obligation of Defaulting Lenders that
are Revolving Lenders to fund participations in respect of Letter of Credit
Liabilities, to be applied pursuant to the immediately following
clause (iv). If at any time the Administrative Agent determines that Cash
Collateral is subject to any right or claim of any Person other than the
Administrative Agent and the Issuing Banks as herein provided, or that the
total amount of such Cash Collateral is less than the aggregate Fronting Exposure of the Issuing Banks with respect to
Letters of Credit issued and outstanding at such time, the Borrower will, promptly upon demand by the
Administrative Agent, pay or provide to the Administrative Agent additional
Cash Collateral in an amount sufficient to eliminate such deficiency (after
giving effect to any Cash Collateral provided by the Defaulting Lender that is
a Revolving Lender).
(iv) Notwithstanding anything to the
contrary contained in this Agreement, Cash Collateral provided under this
Section in respect of Letters of Credit shall be applied to the satisfaction of
the obligation of a Defaulting Lender that is a Revolving Lender to fund
participations in respect of Letter of Credit Liabilities (including, as to
Cash Collateral provided by a Defaulting Lender, any interest accrued on such
obligation) for which the Cash Collateral was so provided, prior to any other
application of such property as may otherwise be provided for herein.
(v) Cash Collateral (or the
appropriate portion thereof) provided to reduce the Issuing Banks’ Fronting Exposures
shall no longer be required to be held as Cash Collateral pursuant to this
subsection following (x) the elimination of the applicable Fronting
Exposure (including by the termination of Defaulting Lender status of the
applicable Revolving Lender), or (y) the determination by the Administrative
Agent and the Issuing Banks that there exists excess Cash Collateral; provided
that, subject to the immediately preceding subsection (b), the Person
providing Cash Collateral and the Issuing Banks may (but shall not be obligated
to) agree that Cash Collateral shall be held to support future anticipated
Fronting Exposure or other obligations and to the extent that such Cash
Collateral was provided by the Borrower, such Cash Collateral shall remain
subject to the security interest granted pursuant to the Loan Documents.
(f) Defaulting
Lender Cure. If the Borrower and the Administrative Agent, and solely in
the case of a Defaulting Lender that is a Revolving Lender, the Swingline
Lender and the Issuing Banks, agree in writing that a Lender is no longer a
Defaulting Lender, the Administrative Agent will so notify the parties hereto,
whereupon as of the effective date specified in such notice and subject to any
conditions set forth therein (which may include arrangements with respect to any
Cash Collateral), that Lender will, to the extent applicable, purchase at par
that portion of outstanding Loans of the other Lenders or take such other
actions as the Administrative Agent may determine to be necessary to cause, as
applicable, (i) the Revolving Loans and funded and unfunded participations in
Letters of Credit and Swingline Loans to be held pro
rata by the Revolving Lenders in accordance with their respective Revolving
Commitment Percentages (determined without giving effect to the immediately
preceding subsection (d)), and (ii) the Term Loans (if any) to be
held by the Term Loan Lenders pro rata as if there had been no Defaulting
Lenders of such Class, whereupon such Lender will cease to be a Defaulting
Lender; provided that no adjustments will be made retroactively with
respect to Fees accrued or payments made by or on behalf of the Borrower while
that Lender was a Defaulting Lender; and provided, further, that
except to the extent otherwise expressly agreed by the affected parties, no change
hereunder from Defaulting Lender to Lender will constitute a waiver or release
of any claim of any party hereunder arising from that Lender’s having been a
Defaulting Lender.
(g) New
Swingline Loans/Letters of Credit. So long as any Revolving 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) no Issuing
Bank shall be required to issue, extend, renew or increase any Letter of Credit
unless it is satisfied that it will have no Fronting Exposure after giving
effect thereto.
(h) Purchase of Defaulting
Lender’s Commitment; Termination of Defaulting Lender.
(i) During any
period that a Lender is a Defaulting Lender, the Borrower may, by the Borrower
giving written notice thereof to the Administrative Agent, such Defaulting
Lender and the other Lenders, demand that such Defaulting Lender assign its Commitments
and Loans to an Eligible Assignee subject to and in accordance with the
provisions of Section 13.5.(b). No party hereto shall have any obligation
whatsoever to initiate any such replacement or to assist in finding an Eligible
Assignee. In addition, any Lender who is not a Defaulting Lender may, but
shall not be obligated, in its sole discretion, to acquire the face amount of
all or a portion of such Defaulting Lender’s Commitments and Loans via an
assignment subject to and in accordance with the provisions of Section 13.5.(b).
In connection with any such assignment, such Defaulting Lender shall promptly
execute all documents reasonably requested to effect such assignment, including
an appropriate Assignment and Assumption and, notwithstanding Section 13.5.(b),
shall pay to the Administrative Agent an assignment fee in the amount of
$7,500. The exercise by the Borrower of its rights under this Section shall be
at the Borrower’s sole cost and expense and at no cost or expense to the
Administrative Agent or any of the Lenders.
(ii) The Borrower may terminate the unused
amount of the Commitment of any Revolving Lender that is a Defaulting Lender
upon not less than 15 Business Days’ prior written notice to the Administrative
Agent (which shall promptly notify the Lenders thereof), and in such event the
provisions of Section 3.9.(b) will apply to all amounts thereafter paid by
the Borrower for the account of such Defaulting Lender under this Agreement
(whether on account of principal, interest, fees, indemnity or other amounts); provided
that (A) no Event of Default shall have occurred and be continuing, and (B)
such termination shall not be deemed to be a waiver or release of any claim the
Borrower, the Administrative Agent, any Issuing Bank, the Swingline Lender or
any Lender may have against such Defaulting Lender.
Section 3.10.
Taxes.
(a) Issuing
Banks. For purposes of this Section, the term “Lender” includes each Issuing
Bank and the term “Applicable Law” includes FATCA.
(b) Payments
Free of Taxes. Any and all payments by or on account of any obligation of
the Borrower or any other Loan Party under any Loan Document shall be made
without deduction or withholding for any Taxes, except as required by
Applicable Law. If any Applicable Law (as determined in
the good faith discretion of an applicable Withholding Agent) requires the
deduction or withholding of any Tax from any such payment by a Withholding
Agent, then the applicable Withholding Agent shall be entitled to make such
deduction or withholding and shall timely pay the full amount deducted or
withheld to the relevant Governmental Authority in accordance with Applicable
Law and, if such Tax is an Indemnified Tax, then the sum payable by the
Borrower or other applicable Loan Party shall be increased as necessary so that
after such deduction or withholding has been made (including such deductions
and withholdings applicable to additional sums payable under this Section) the
applicable Recipient receives an amount equal to the sum it would have received
had no such deduction or withholding been made.
(c) Payment
of Other Taxes by the Borrower. The Borrower and the other Loan Parties
shall timely pay to the relevant Governmental Authority in accordance with
Applicable Law, or at the option of the Administrative Agent timely reimburse
it for the payment of, any Other Taxes.
(d) Indemnification
by the Borrower. The Borrower and the other Loan Parties shall jointly and
severally indemnify each Recipient, within 10 days after demand therefor, for
the full amount of any Indemnified Taxes (including Indemnified Taxes imposed
or asserted on or attributable to amounts payable under this Section) payable
or paid by such Recipient or required to be withheld or deducted from a payment
to such Recipient and any reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as
to the amount of such payment or liability delivered to the Borrower by a
Lender (with a copy to the Administrative Agent), or by the Administrative
Agent on its own behalf or on behalf of a Lender, shall be conclusive absent
manifest error.
(e) Indemnification
by the Lenders. Each Lender shall severally indemnify the Administrative
Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes
attributable to such Lender (but only to the extent that the Borrower or
another Loan Party has not already indemnified the Administrative Agent for
such Indemnified Taxes and without limiting the obligation of the Borrower and
the other Loan Parties to do so), (ii) any Taxes attributable to such
Lender’s failure to comply with the provisions of Section 13.5. relating
to the maintenance of a Participant Register and (iii) any Excluded Taxes
attributable to such Lender, in each case, that are payable or paid by the
Administrative Agent in connection with any Loan Document, and any reasonable
expenses arising therefrom or with respect thereto, whether or not such Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability
delivered to any Lender by the Administrative Agent shall be conclusive absent
manifest error. Each Lender hereby authorizes the Administrative Agent to set
off and apply any and all amounts at any time owing to such Lender under any
Loan Document or otherwise payable by the Administrative Agent to the Lender
from any other source against any amount due to the Administrative Agent under
this subsection. The provisions of this
subsection shall continue to inure to the benefit of an Administrative Agent
following its resignation or removal as Administrative Agent.
(f) Evidence
of Payments. As soon as practicable after any payment of Taxes by the
Borrower or any other Loan Party to a Governmental Authority pursuant to this
Section, the Borrower or such other Loan Party shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(g) Status
of Lenders.
(i) Any Recipient that is entitled
to an exemption from or reduction of withholding Tax with respect to payments
made under any Loan Document shall deliver to the Borrower and the
Administrative Agent, at the time or times reasonably requested by the Borrower
or the Administrative Agent, such properly completed
and executed documentation reasonably requested by the Borrower or the
Administrative Agent as will permit such payments to be made without
withholding or at a reduced rate of withholding. In addition, any Recipient,
if reasonably requested by the Borrower or the Administrative Agent, shall
deliver such other documentation prescribed by Applicable Law or reasonably
requested by the Borrower or the Administrative Agent as will enable the
Borrower or the Administrative Agent to determine whether or not such Recipient
is subject to backup withholding or information reporting requirements.
Notwithstanding anything to the contrary in the preceding two sentences, the
completion, execution and submission of such documentation (other than such
documentation set forth in the immediately following clauses (ii)(A),
(ii)(B) and (ii)(D)) shall not be required if in the Recipient’s reasonable
judgment such completion, execution or submission would subject such Recipient
to any material unreimbursed cost or expense or would materially prejudice the
legal or commercial position of such Recipient.
(ii) Without limiting the
generality of the foregoing, in the event that the Borrower is a U.S. Person:
(A) any Recipient that is a U.S.
Person shall deliver to the Borrower and the Administrative Agent on or prior
to the date on which such Recipient becomes a party to this Agreement (and from
time to time thereafter upon the reasonable request of the Borrower or the
Administrative Agent), an electronic copy (or an original if requested by the
Borrower or the Administrative Agent) of an executed IRS Form W-9 (or any
successor form) certifying that such Recipient is exempt from U.S. federal
backup withholding tax;
(B) any Foreign Lender shall, to the
extent it is legally entitled to do so, deliver to the Borrower and the
Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a
Lender under this Agreement (and from time to time thereafter upon the
reasonable request of the Borrower or the Administrative Agent), whichever of
the following is applicable:
(I) in the case of a Foreign Lender
claiming the benefits of an income tax treaty to which the United States is a
party (x) with respect to payments of interest under any Loan Document, an
electronic copy (or an original if requested by the Borrower or the
Administrative Agent) of an executed IRS Form W-8BEN or W-8BEN-E, as
applicable, establishing an exemption from, or reduction of, U.S. federal
withholding Tax pursuant to the “interest” article of such tax treaty and
(y) with respect to any other applicable payments under any Loan Document,
IRS Form W-8BEN or W-8BEN-E, as applicable, establishing an exemption from, or
reduction of, U.S. federal withholding Tax pursuant to the “business profits”
or “other income” article of such tax treaty;
(II) an electronic copy (or an
original if requested by the Borrower or the Administrative Agent) of an
executed IRS Form W-8ECI;
(III) in the case of a Foreign Lender
claiming the benefits of the exemption for portfolio interest under Section
881(c) of the Internal Revenue Code, (x) a certificate substantially in
the form of Exhibit R-1 to the effect that such Foreign Lender is not a “bank”
within the meaning of Section 881(c)(3)(A) of the
Internal Revenue Code, a “10 percent shareholder” of the Borrower within the
meaning of Section 881(c)(3)(B) of the Internal Revenue Code, or a
“controlled foreign corporation” described in Section 881(c)(3)(C) of the
Internal Revenue Code (a “U.S. Tax Compliance Certificate”) and
(y) executed originals of IRS Form W-8BEN or W-8BEN-E, as applicable; or
(IV) to the extent a Foreign Lender
is not the beneficial owner, an electronic copy (or an original if requested by
the Borrower or the Administrative Agent) of an executed IRS Form W-8IMY,
accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, as applicable, a
U.S. Tax Compliance Certificate substantially in the form of Exhibit R-2 or
Exhibit R-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 R-4
on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the
extent it is legally entitled to do so, deliver to the Borrower and the
Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a
Lender under this Agreement (and from time to time thereafter upon the
reasonable request of the Borrower or the Administrative Agent), an electronic
copy (or an original if requested by the Borrower or the Administrative Agent)
of any other form prescribed by Applicable Law as a basis for claiming
exemption from or a reduction in U.S. federal withholding Tax, duly completed,
together with such supplementary documentation as may be prescribed by
Applicable Law to permit the Borrower or the Administrative Agent to determine
the withholding or deduction required to be made; and
(D) if a payment made to a Recipient
under any Loan Document would be subject to U.S. federal withholding Tax
imposed by FATCA if such Recipient were to fail to comply with the applicable
reporting requirements of FATCA (including those contained in Section 1471(b)
or 1472(b) of the Internal Revenue Code, as applicable), such Recipient shall
deliver to the Borrower and the Administrative Agent at the time or times
prescribed by Applicable Law and at such time or times reasonably requested by
the Borrower or the Administrative Agent such documentation prescribed by
Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the
Internal Revenue Code) and such additional documentation reasonably requested
by the Borrower or the Administrative Agent as may be necessary for the
Borrower and the Administrative Agent to comply with their obligations under
FATCA and to determine that such Recipient has complied with such Recipient’s
obligations under FATCA or to determine the amount to deduct and withhold from
such payment. Solely for purposes of this clause (D), “FATCA” shall
include any amendments made to FATCA after the date of this Agreement.
(E) If any successor Administrative
Agent is not a U.S. Person, it shall deliver two duly completed copies of IRS
Form W-8ECI (with respect to any payments to be received on its own behalf) and
IRS Form W-8IMY (for all other payments) certifying that it is a “U.S. branch”
and that the payments it receives for the account of others are not effectively
connected with the conduct of its trade or business in the United States and
that it is using such form as evidence of its agreement with the Loan Parties
to be treated as a U.S. Person with respect to such
payments (and the Loan Parties and Administrative Agent agree to so treat
Administrative Agent as a U.S. Person with respect to such payments), with the
effect that the Loan Parties can make payments to Administrative Agent without
deduction or withholding of any Taxes imposed by the United States.
Each
Recipient agrees that if any form or certification it previously delivered
expires or becomes obsolete or inaccurate in any respect, it shall update such
form or certification or promptly notify the Borrower and the Administrative
Agent in writing of its legal inability to do so.
(h) Treatment
of Certain Refunds. If any party determines, in its sole discretion
exercised in good faith, that it has received a refund of any Taxes as to which
it has been indemnified pursuant to this Section (including by the payment of
additional amounts pursuant to this Section), it shall pay to the indemnifying
party an amount equal to such refund (but only to the extent of indemnity
payments made under this Section with respect to the Taxes giving rise to such
refund), net of all out-of-pocket expenses (including Taxes) of such
indemnified party and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund). Such
indemnifying party, upon the request of such indemnified party, shall repay to
such indemnified party the amount paid over pursuant to this subsection (plus
any penalties, interest or other charges imposed by the relevant Governmental
Authority) in the event that such indemnified party is required to repay such refund
to such Governmental Authority. Notwithstanding anything to the contrary in
this subsection, in no event will the indemnified party be required to pay any
amount to an indemnifying party pursuant to this subsection the payment of
which would place the indemnified party in a less favorable net after-Tax
position than the indemnified party would have been in if the Tax subject to
indemnification and giving rise to such refund had not been deducted, withheld
or otherwise imposed and the indemnification payments or additional amounts with
respect to such Tax had never been paid. This subsection shall not be
construed to require any indemnified party to make available its Tax returns
(or any other information relating to its Taxes that it deems confidential) to
the indemnifying party or any other Person.
(i) Survival.
Each party’s obligations under this Section shall survive the resignation or
replacement of the Administrative Agent or any assignment of rights by, or the
replacement of, a Lender, the termination of the Commitments and the repayment,
satisfaction or discharge of all obligations under any Loan Document.
Article IV. Eligibility of Properties
Section 4.1.
Eligibility of Properties.
(a) Existing
Unencumbered Assets. Subject to compliance with the terms and conditions
of Section 6.1.(a), as of the Effective Date the parties hereto
acknowledge and agree that the Properties listed on Schedule 4.1. are
Unencumbered Assets as of the Effective Date.
(b) Additional
Unencumbered Assets. After the Effective Date, a Property shall be
included as an Unencumbered Asset upon delivery to the Administrative Agent of
an Unencumbered Asset Certificate pursuant to Section 9.4.(d). setting
forth the information required to be contained therein and assuming that such
Property is included as an Unencumbered Asset. Subject to the terms and
conditions of this Agreement, upon the Administrative Agent’s receipt of such
certificate, such Property shall be included as an Unencumbered Asset.
(c) Alternative Acceptance Procedure for
Additional Unencumbered Assets. Any Property that does not satisfy all of
the requirements of an Unencumbered Asset shall be included only upon the written approval of the Requisite Lenders provided,
however, that such approval shall only be a waiver of those requirements in the
definition of Unencumbered Assets specifically set forth and approved therein
with respect to such Property.
Section 4.2. Termination
of Designation as Unencumbered Asset.
A
Property shall cease to be included as an Unencumbered Asset for purposes of
this Agreement if either (i) such Property ceases to satisfy the
requirements of the definition of the term “Unencumbered Assets” applicable to
it (with the termination effective immediately) or (ii) such Property is
noted to have been removed as an Unencumbered Asset in an Unencumbered Asset
Certificate subsequently submitted pursuant to this Agreement (with the
termination effective as of the date of receipt by the Administrative Agent of
such Unencumbered Asset Certificate). Notwithstanding the foregoing, no
Property will be terminated as an Unencumbered Asset if (i) a Default or
Event of Default exists or (ii) a Default or Event of Default would exist
immediately after such Property is terminated as an Unencumbered Asset.
Article V. Yield Protection, Etc.
Section 5.1.
Additional Costs; Capital Adequacy.
(a) Capital Adequacy. If any
Lender determines that any Regulatory Change affecting such Lender or any
lending office of such Lender or such Lender’s holding company, if any,
regarding capital or liquidity ratios or requirements, has or would have the
effect of reducing the rate of return on such Lender’s capital or on the
capital of such Lender’s holding company, if any, as a consequence of this
Agreement, the Commitments of such Lender or the Loans made by, or
participations in Letters of Credit or Swingline Loans held by, such Lender, to
a level below that which such Lender or such Lender’s holding company could
have achieved but for such Regulatory Change (taking into consideration such
Lender’s policies and the policies of such Lender’s holding company with
respect to capital adequacy), then from time to time the Borrower will pay to
such Lender such additional amount or amounts as will compensate such Lender or
such Lender’s holding company for any such reduction suffered.
(b) Additional Costs. In addition
to, and not in limitation of the immediately preceding subsection, the Borrower
shall promptly pay to the Administrative Agent for the account of a Lender from
time to time such amounts as such Lender may determine to be necessary to
compensate such Lender for any costs incurred by such Lender that it reasonably
determines are attributable to its making or maintaining of any LIBOR Loans or
LIBOR Margin 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 LIBOR Loans or LIBOR
Margin Loans or such obligation or the maintenance by such Lender of capital in
respect of its LIBOR Loans or LIBOR Margin Loans or its Commitments (other than
any amounts included in the determination of “LIBOR” in the definition thereof)
(such increases in costs and reductions in amounts receivable being herein
called “Additional Costs”), resulting from any Regulatory Change that:
(i) changes the
basis of taxation of any amounts payable to such Lender under this Agreement or
any of the other Loan Documents in respect of any of such LIBOR Loans or LIBOR
Margin Loans or its Commitments (other than Indemnified Taxes, Taxes described
in clauses (b) through (d) of the definition of Excluded Taxes and Connection
Income Taxes);
(ii) imposes or
modifies any reserve, special deposit, compulsory loan, insurance charge or
similar requirements (other than Regulation D of the Board of Governors of
the Federal Reserve System or other similar reserve requirement applicable to
any other category of liabilities or category of
extensions of credit or other assets by reference to which the interest rate on
LIBOR Loans or LIBOR Margin Loans is determined to the extent utilized when
determining LIBOR for such Loans) relating to any extensions of credit or other
assets of, or any deposits with or other liabilities of, or other credit
extended by, or any other acquisition of funds by such Lender (or its parent
corporation), or any commitment of such Lender (including, without limitation,
the Commitments of such Lender hereunder); or
(iii) imposes on
any Lender or the London interbank market any other condition, cost or expense
(other than Taxes) affecting this Agreement or the Loans made by such Lender.
(c) Lender’s Suspension of LIBOR Loans
and LIBOR Margin 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 or LIBOR Margin 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 LIBOR Margin Loans or
(ii) becomes subject to restrictions on the amount of such a category of
liabilities or assets that it may hold, then, if such Lender so elects by
notice to the Borrower (with a copy to the Administrative Agent), the
obligation of such Lender to make or Continue, or to Convert Base Rate Loans
into, LIBOR Loans and/or the obligation of a Revolving Lender that has
outstanding a Bid Rate Quote to make LIBOR Margin Loans hereunder shall be
suspended until such Regulatory Change ceases to be in effect (in which case
the provisions of Section 5.5. shall apply).
(d) Additional
Costs in Respect of Letters of Credit. Without limiting the obligations of
the Borrower under the preceding subsections of this Section (but without
duplication), if as a result of any Regulatory Change or any risk-based capital
guideline or other requirement heretofore or hereafter issued by any
Governmental Authority there shall be imposed, modified or deemed applicable
any Tax (other than Indemnified Taxes, Taxes described in clauses (b) through
(d) of the definition of Excluded Taxes and Connection Income Taxes), reserve,
special deposit, capital adequacy or similar requirement against or with
respect to or measured by reference to Letters of Credit and the result shall
be to increase the cost to an Issuing Bank of issuing (or any Revolving Lender
of purchasing participations in) or maintaining its obligation hereunder to
issue (or purchase participations in) any Letter of Credit or reduce any amount
receivable by such Issuing Bank or any Revolving Lender hereunder in respect of
any Letter of Credit, then, upon demand by such Issuing Bank or such Lender, the
Borrower shall pay immediately to such Issuing Bank or, in the case of such
Lender, to the Administrative Agent for the account of such Lender, from time
to time as specified by such Issuing Bank or such Lender, such additional
amounts as shall be sufficient to compensate such Issuing Bank or such Lender
for such increased costs or reductions in amount.
(e) Notification and Determination of
Additional Costs. Each of the Administrative Agent, each Issuing Bank and each
Lender, as the case may be, agrees to notify the Borrower (and in the case of an
Issuing Bank and or a Lender, to notify the Administrative Agent) of any event
occurring after the Agreement Date entitling the Administrative Agent, such Issuing
Bank or such Lender to compensation under any of the preceding subsections of
this Section as promptly as practicable; provided, however, that the failure of
the Administrative Agent, any Issuing Bank or any Lender to give such notice
shall not release the Borrower from any of its obligations hereunder; provided,
further, that the Borrower shall not be required to compensate the
Administrative Agent, an Issuing Bank or a Lender pursuant to this Section for
any increased costs incurred or reductions suffered more than six months prior
to the date that the Administrative Agent, such Issuing Bank or such Lender, as
the case may be, notifies the Borrower of the Regulatory Change giving rise to
such increased costs or reductions, and of the intention of the Administrative
Agent, such Issuing Bank or such Lender to claim compensation therefor (except
that, if the Regulatory Change giving rise to such
increased costs or reductions is retroactive, then the six-month period
referred to above shall be extended to include the period of retroactive effect
thereof). The Administrative Agent, each Issuing Bank and each Lender, as the
case may be, agrees to furnish to the Borrower (and in the case of an Issuing
Bank or a Lender to the Administrative Agent as well) a certificate setting
forth the basis and amount of each request for compensation under this Section.
Determinations by the Administrative Agent, such Issuing Bank or such Lender, as
the case may be, of the effect of any Regulatory Change shall, provided that
such determinations are made on a reasonable basis and in good faith, be
conclusive and binding for all purposes, absent manifest error. The Borrower
shall pay the Administrative Agent, such Issuing Bank and or any such Lender,
as the case may be, the amount shown as due on any such certificate within
10 days after receipt thereof.
Section 5.2.
Suspension of LIBOR Loans and LIBOR Margin Loans.
Anything
herein to the contrary notwithstanding, if, on or prior to the determination of
LIBOR for any Interest Period:
(a) the Administrative Agent reasonably
determines (which determination shall be conclusive) that reasonable and
adequate means do not exist for ascertaining LIBOR for such Interest Period;
(b) the Administrative Agent
reasonably determines (which determination shall be conclusive) that quotations
of interest rates for the relevant deposits referred to in the definition of
LIBOR are not being provided in the relevant amounts or for the relevant
maturities for purposes of determining rates of interest for LIBOR Loans as
provided herein;
(c) the Administrative Agent
reasonably determines (which determination shall be conclusive) that the
relevant rates of interest referred to in the definition of LIBOR upon the
basis of which the rate of interest for LIBOR Loans for such Interest Period is
to be determined are not likely to adequately cover the cost to any Lender of
making or maintaining LIBOR Loans for such Interest Period; or
(d) any Revolving Lender that has
outstanding a Bid Rate Quote with respect to a LIBOR Margin Loan reasonably
determines (which determination shall be conclusive) that LIBOR will not
adequately and fairly reflect the cost to such Revolving Lender of making or
maintaining such LIBOR Margin Loan;
then
the Administrative Agent shall give the Borrower and each Lender prompt notice thereof
and, so long as such condition remains in effect, (i) the Lenders shall be
under no obligation to, and shall not, make additional LIBOR Loans, Continue
LIBOR Loans or Convert Loans into LIBOR Loans and the Borrower shall, on the
last day of each current Interest Period for each outstanding LIBOR Loan,
either prepay such Loan or Convert such Loan into a Base Rate Loan and (ii) in
the case of clause (d) above, no Revolving Lender that has outstanding a Bid
Rate Quote with respect to a LIBOR Margin Loan shall be under any obligation to
make such Loan.
Section 5.3.
Illegality.
Notwithstanding any other provision of
this Agreement, (a) if any Lender shall determine (which determination shall be
conclusive and binding) that it is unlawful for such Lender to honor its
obligation to make or maintain LIBOR Loans hereunder and/or (b) if any Lender
that has an outstanding Bid Rate Quote shall determine (which determination
shall be conclusive and binding) that it is unlawful for such Lender to honor
its obligation to make or maintain LIBOR Margin Loans hereunder, then such
Lender shall promptly notify the Borrower thereof
(with a copy of such notice to the Administrative Agent) and such Lender’s
obligation to make or Continue, or to Convert Loans of any other Type into,
LIBOR Loans shall be suspended and/or such Lender’s obligation to make LIBOR
Margin Loans shall be suspended, in each case, until such time as such Lender
may again make and maintain LIBOR Loans or LIBOR Margin Loans, as the case may
be (in which case the provisions of Section 5.5. shall be applicable).
Section 5.4.
Compensation.
The
Borrower shall pay to the Administrative Agent for the account of each Lender,
upon the request of such Lender through the Administrative Agent, such amount
or amounts as shall be sufficient to compensate such Lender for any loss, cost
or expense that the Administrative Agent reasonably determines is attributable
to:
(a) any payment or prepayment
(whether mandatory or optional) of a LIBOR Loan or a Bid Rate 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 Section 6.2. to be satisfied) to borrow
a LIBOR Loan or a Bid Rate Loan from such Lender on the 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.
Not
in limitation of the foregoing, such compensation shall include, without
limitation, (i) in the case of a LIBOR Loan, 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 Interest Period at the rate applicable to such LIBOR
Loan, less (B) the amount of interest that would accrue on the same LIBOR Loan
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, as applicable, calculating present
value by using as a discount rate LIBOR quoted on such date and (ii) in the
case of a Bid Rate Loan, the sum of such losses and expenses as the Lender or
Designated Lender who made such Bid Rate Loan may reasonably incur by reason of
such prepayment, including without limitation any losses or expenses incurred
in obtaining, liquidating or employing deposits from third parties; provided,
that any such compensation shall, for the avoidance of doubt, in no event
include any lost profit. Upon the Borrower’s request, the Administrative Agent
will provide to the Borrower, on behalf of any Lender seeking compensation
under this Section, a statement setting forth in reasonable detail the basis
for requesting such compensation and the method for determining the amount
thereof. Any such statement shall be conclusive absent manifest error.
Section 5.5.
Treatment of Affected Loans.
(a) If the obligation of any Lender
to make LIBOR Loans or to Continue, or to Convert Base Rate Loans into, LIBOR
Loans shall be suspended pursuant to Section 5.1.(c), Section 5.2. or
Section 5.3. 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 5.1.(c), Section 5.2., or Section 5.3. on such earlier
date as such Lender or the Administrative Agent, as applicable, may specify to
the Borrower (with a copy to the Administrative Agent, as applicable)) and,
unless and until such Lender or the Administrative Agent, as applicable, gives
notice as provided below that the circumstances specified in Section 5.1.,
Section 5.2. or Section 5.3. that gave rise to such Conversion no
longer exist:
(i) to the extent that such Lender’s
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
(ii) 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.
If such Lender or the Administrative Agent, as
applicable, gives notice to the Borrower (with a copy to the Administrative
Agent, as applicable) that the circumstances specified in Section 5.1.(c),
5.2. or 5.3. that gave rise to the Conversion of such Lender’s LIBOR Loans
pursuant to this Section no longer exist (which such Lender or the
Administrative Agent, as applicable, agrees to do promptly upon such
circumstances ceasing to exist) at a time when LIBOR 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 Commitments.
(b) If the obligation of a Lender
to make LIBOR Margin Loans shall be suspended pursuant to Section 5.1.(c)
or 5.2., then the LIBOR Margin Loans of such Lender shall be automatically due
and payable on such date as such Lender may specify to the Borrower by written
notice with a copy to the Administrative Agent.
Section 5.6. Affected Lenders.
If
(a) a Lender requests compensation pursuant to Section 3.10. or 5.1.,
or is a Lender that sold a participation to a Participant that requests
compensation pursuant to Section 3.10. or 5.1., and the Requisite Lenders
are not also doing the same, (b) 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 5.1.(c), 5.2. or 5.3. but
the obligation of the Requisite Lenders shall not have been suspended under
such Sections or (c) becomes a Non-Consenting Lender, then, so long as there
does not then exist any Default or Event of Default, the Borrower may either
(i) demand that such Lender (the “Affected Lender”), and upon such demand
the Affected Lender shall promptly, assign its Commitments and Loans to an
Eligible Assignee subject to and in accordance with the provisions of
Section 13.5.(b) for a purchase price equal to (x) the aggregate
principal balance of all Loans then owing to the Affected Lender, plus (y) the
aggregate amount of payments previously made by the Affected Lender under
Section 2.4.(j) that have not been
repaid, plus (z) any accrued but unpaid interest thereon and accrued
but unpaid fees owing to the Affected Lender, or any other amount as may be
mutually agreed upon by such Affected Lender and Eligible Assignee or (ii) pay to the Affected Lender the aggregate
principal balance of the Loans then owing to the Affected Lender, plus the aggregate amount of payments previously made by
the Affected Lender under Section 2.4.(j)
that have not been repaid, plus any
accrued but unpaid interest and accrued but unpaid fees owing to the Affected
Lender (or such other amount as may be mutually agreed upon by the Borrower and
such Affected Lender), and by written notice to such Affected Lender, terminate
such Affected Lender’s Commitment, whereupon the Affected Lender shall no
longer be a party hereto or have any rights or obligations hereunder or under
any of the other Loan Documents (but
shall continue to be entitled to the benefits of Sections 3.10., 5.1., 5.4.,
13.2. and 13.9. and the other provisions of this Agreement and the other Loan
Documents as provided in Section 13.10. with respect to facts and
circumstances occurring prior to the effective date of such payment). Each of the Administrative Agent, the Borrower and
the Affected Lender shall reasonably cooperate in effectuating the replacement
of such Affected Lender under this Section, but at no
time shall the Administrative Agent, such Affected Lender, any other Lender or
any Titled Agent be obligated in any way whatsoever to initiate any such
replacement or to assist in finding an Eligible Assignee. The exercise by the
Borrower of its rights under this Section shall be at the Borrower’s sole cost
and expense and at no cost or expense to the Administrative Agent, the Affected
Lender or any of the other Lenders; provided, however, notwithstanding anything
to the contrary in this Agreement, the Borrower shall not be obligated to
reimburse or otherwise pay an Affected Lender’s administrative or legal costs
incurred as a result of the Borrower’s exercise of its rights under this
Section. The terms of this Section shall not in any way limit the Borrower’s
obligation to pay to any Affected Lender compensation owing to such Affected
Lender pursuant to this Agreement (including, without limitation, pursuant to
Sections 3.10., 5.1. or 5.4.) with respect to any period up to the date of
replacement. In connection with any such assignment under this Section 5.6.,
such Affected Lender shall promptly execute all documents reasonably requested
to effect such assignment, including an appropriate Assignment and Assumption.
Section 5.7.
Change of Lending Office.
Each
Lender agrees that it will use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to designate an alternate Lending
Office with respect to any of its Loans affected by the matters or
circumstances described in Sections 3.10., 5.1. or 5.3. to reduce the
liability of the Borrower or avoid the results provided thereunder, so long as
such designation is not disadvantageous to such Lender as determined by such
Lender in its sole discretion, except that such Lender shall have no obligation
to designate a Lending Office located in the United States of America.
Section 5.8.
Assumptions Concerning Funding of LIBOR Loans and LIBOR Margin Loans.
Calculation
of all amounts payable to a Lender under this Article shall be made as though
such Lender had actually funded LIBOR Loans or LIBOR Margin Loans through the
purchase of deposits in the relevant market bearing interest at the rate
applicable to such LIBOR Loans or LIBOR Margin Loans, in an amount equal to the
amount of the LIBOR Loans or LIBOR Margin Loans and having a maturity
comparable to the relevant Interest Period; provided, however, that each Lender
may fund each of its LIBOR Loans and LIBOR Margin Loans in any manner it sees
fit and the foregoing assumption shall be used only for calculation of amounts
payable under this Article.
Article VI. Conditions Precedent
Section 6.1.
Initial Conditions Precedent.
The
obligation of the Lenders to effect or permit the occurrence of the first
Credit Event hereunder, whether as the making of a Loan or the issuance of a
Letter of Credit, is subject to the satisfaction or waiver of the following
conditions precedent:
(a) The
Administrative Agent shall have received each of the following, in form and
substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement
executed by each of the parties hereto;
(ii) Revolving Notes, Term Notes
and Bid Rate Notes executed by the Borrower, payable to each applicable Lender (including
any Designated Lender, if applicable but excluding any Lender that has
requested that it not receive Notes) and complying with the terms of
Section 2.12.(a) and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each
of the Guarantors initially to be a party thereto, if any;
(iv) an
opinion of in-house or outside counsel to the Borrower and the other Loan
Parties, addressed to the Administrative Agent and the Lenders and covering such
matters as the Administrative Agent may request;
(v) copies of the certificate or
articles of incorporation or formation, articles of organization, certificate
of limited partnership, declaration of trust or other comparable organizational
instrument (if any) of each Loan Party certified as of a recent date by the
Secretary of State of the state of formation of such Person (or in the case of
any Loan Party other than the Borrower, any other date acceptable to the
Administrative Agent so long as such organizational documents are certified as
of the Effective Date by the Secretary or Assistant Secretary (or other
individual performing similar functions) of the applicable Loan Party);
(vi) a
certificate of good standing (or certificate of similar meaning) with respect
to each Loan Party issued as of a recent date by the Secretary of State of the
state of formation of each such Person;
(vii) a certificate of incumbency
signed by the Secretary or Assistant Secretary (or other individual performing
similar functions) of each Loan Party with respect to each of the officers of
such Loan Party authorized to execute and deliver the Loan Documents to which
such Loan Party is a party, and in the case of the Borrower, authorized to
execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of
Swingline Borrowing, requests for Letters of Credit, Notices of Conversion and
Notices of Continuation;
(viii) copies certified by the
Secretary or Assistant Secretary (or other individual performing similar
functions) of each Loan Party of (A) the by-laws of such Loan Party, if a
corporation, the operating agreement, if a limited liability company, the
partnership agreement, if a limited or general partnership, or other comparable
document in the case of any other form of legal entity and (B) all
corporate, partnership, 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;
(ix) an Unencumbered Asset
Certificate calculated as of March 31, 2015,
(x) a Compliance Certificate calculated on a
pro forma basis for the Borrower’s fiscal quarter ending March 31, 2015,
(xi) a Closing Certificate substantially in form
of Exhibit T, executed on behalf of the Borrower by an authorized officer of
the Borrower;
(xii) a Disbursement Instruction
Agreement effective as of the Agreement Date;
(xiii) evidence that all indebtedness,
liabilities or obligations owing by the Loan Parties under the Existing Credit
Agreement shall have been paid in full;
(xiv) evidence that the Fees, if any,
then due and payable under Section 3.5., together with all other fees, expenses
and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers and any of the Lenders,
including without limitation, the reasonable fees and expenses of counsel to
the Administrative Agent, have been paid; and
(xv) such other documents, agreements
and instruments as the Administrative Agent, or any Lender through the Administrative
Agent, may reasonably request;
(b) there
shall not have occurred or become known to the Administrative Agent or any of
the Lenders any event, condition, situation or status since the date of the
information contained in the financial and business projections, budgets, pro
forma data and forecasts concerning the Borrower and its Subsidiaries delivered
to the Administrative Agent and the Lenders by or on behalf of the Borrower prior
to the Agreement Date in connection with the transactions contemplated by this
Agreement that has had or could reasonably be expected to result in a Material
Adverse Effect;
(c) no
litigation, action, suit, investigation or other arbitral, administrative or
judicial proceeding shall be pending or threatened which is reasonably likely
to be adversely determined, and, if adversely determined, could reasonably be
expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin,
impose materially burdensome conditions on, or otherwise materially and
adversely affect, the ability of the Borrower or any other Loan Party to
fulfill its obligations under the Loan Documents to which it is a party;
(d) the
Borrower and the other Loan Parties 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 (A) any
Applicable Law or (B) any agreement, document or instrument to which any
Loan Party is a party or by which any of them or their respective properties is
bound, except for such approvals, consents, waivers, filings and notices the
receipt, making or giving of which, or the failure to make, give or receive
which, would not reasonably be likely to (A) have a Material Adverse
Effect, or (B) restrain or enjoin or impose materially burdensome
conditions on, or otherwise materially and adversely affect the ability of the
Borrower or any other Loan Party to fulfill its obligations under the Loan
Documents to which it is a party; and
(e) the
Borrower and each other Loan Party shall have provided all information
requested by the Administrative Agent and each Lender at least 2 Business Days
prior to the Agreement Date in order to comply with applicable “know your
customer” and anti-money laundering rules and regulations, including without
limitation, the Patriot Act.
Section 6.2.
Conditions Precedent to All Loans and Letters of Credit.
The obligations of (i) Lenders to make any Loans and
(ii) the Issuing Banks to issue Letters of Credit are each 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,
and no violation of the limits described in Section 2.16. would occur
after giving effect thereto; (b) the representations and warranties made
or deemed made by the Borrower and each other Loan Party in the Loan Documents
to which any of them is a party, shall be true and correct in all material
respects (except in the case of a representation or warranty qualified by
materiality, in which case such representation or warranty shall be true and
correct in all respects) on and as of the date of 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 (except in the case of a representation or warranty qualified by
materiality, in which case such representation or warranty shall be true and
correct in all respects) on and as of such earlier
date) and except for changes in factual circumstances specifically and
expressly permitted hereunder or waived or consented to by the applicable
Lenders in accordance with the provisions of Section 13.17.; and (c) in
the case of the borrowing of Revolving Loans, the Administrative Agent shall
have received a timely Notice of Revolving Borrowing, in the case of a
Swingline Loan, the Swingline Lender shall have received a timely Notice of
Swingline Borrowing, in the case of the borrowing of Term Loans, the
Administrative Agent shall have received a timely Notice of Term Loan
Borrowing, and in the case of the issuance of a Letter of Credit, the applicable
Issuing Bank and the Administrative Agent shall have received a timely request
for the issuance of such Letter of Credit. Each Credit Event shall constitute
a certification by the Borrower to the effect set forth in 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). In addition, the Borrower shall be deemed to have
represented to the Administrative Agent, the Issuing Banks and the Lenders at
the time any Loan is made or any Letter of Credit is issued that all conditions
to the making of such Loan or issuing of such Letter of Credit contained in Section
6.1., solely in the case of the initial Loan made or Letter of Credit issued
hereunder, whichever occurs first, and in this Section, in the case of the
making of all Loans and the issuance of all Letters of Credit have been
satisfied. 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 for the benefit of the Administrative Agent and the
Lenders that the conditions precedent for initial Loans set forth in
Sections 6.1. and 6.2. that have not previously been waived by the Lenders
in accordance with the terms of this Agreement have been satisfied.
Article VII. Representations and Warranties
Section 7.1.
Representations and Warranties.
In
order to induce the Administrative Agent and each Lender to enter into this
Agreement and to make Loans and, in the case of the Issuing Banks, to issue
Letters of Credit, the Borrower represents and warrants to the Administrative
Agent, each Issuing Bank and each Lender as follows:
(a) Organization;
Power; Qualification. Each of the Loan Parties and the other Subsidiaries is
a corporation, limited liability company, partnership 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 is duly qualified and
is in good standing as a foreign corporation, limited liability company, partnership
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 and where the failure to be so qualified or
authorized could reasonably be expected to have, in each instance, a Material
Adverse Effect.
(b) Ownership
Structure. Part I of Schedule 7.1.(b) is, as of the Agreement Date, a
complete and correct list of all Subsidiaries of the Borrower setting forth for
each such Subsidiary, (i) the jurisdiction of organization of such
Subsidiary, (ii) each Person holding any Equity Interest in such
Subsidiary, (iii) the nature of the Equity Interests held by each such
Person and (iv) the percentage of ownership of such Subsidiary represented
by such Equity Interests. As of the Agreement Date, except as disclosed in
such Schedule, (A) each of the Borrower and its 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,
(B) all of the issued and outstanding capital stock of each such Person
organized as a corporation is validly issued, fully paid and nonassessable and
(C) there are no outstanding subscriptions, options, warrants,
commitments, preemptive rights or agreements of any kind (including, without
limitation, any stockholders’ or voting trust agreements) for the issuance,
sale, registration or voting of, or outstanding
securities convertible into, any additional shares of capital stock of any
class, or partnership or other Equity Interests of any type in, any such
Person. Part II of Schedule 7.1.(b) correctly sets forth, as of the
Agreement Date, all Unconsolidated Affiliates of the Borrower, 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 Borrower.
(c) Authorization
of Loan Documents and Borrowings. 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. The Borrower and each other 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. The Loan Documents to which the Borrower or
any other 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 contained herein or therein and as may be limited by equitable
principles generally (whether in a proceeding at law or in equity).
(d) Compliance
of Loan Documents with Laws. 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 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: (i) require any Governmental Approval or
violate any Applicable Law (including all Environmental Laws) in any material
respect relating to the Borrower or any other Loan Party; (ii) conflict
with, result in a breach of or constitute a default under the articles of
incorporation or the bylaws of the Borrower or the organizational or governing documents
of any Loan Party, or any material indenture, agreement or other instrument to
which the Borrower or any other Loan Party is a party or by which it or any of
its respective properties may be bound; or (iii) result in or require the
creation or imposition of any Lien upon or with respect to any property now
owned or hereafter acquired by any Loan Party other than in favor of the Administrative
Agent for its benefit and the benefit of the other Lender Parties.
(e) Compliance
with Law; Governmental Approvals. Each of the Borrower, the other Loan
Parties and the other Subsidiaries is in compliance with each Governmental
Approval and all other Applicable Laws relating to it except for noncompliances
which, and Governmental Approvals the failure to possess which, could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(f) Title
to Properties; Liens. Schedule 7.1.(f) is, as of March 31, 2015, a
complete and correct listing of all real estate assets of the Borrower, each
other Loan Party and each other Subsidiary, setting forth, for each such
Property, the current occupancy status of such Property and whether such
Property is a Development Property and, if such Property is a Development
Property, the status of completion of such Property. During the period from
March 31, 2015 to and including the Agreement Date, the Borrower and its
Subsidiaries have not acquired or disposed of any material real estate assets.
Schedule 4.1. is, as of May 31, 2015, a complete and correct listing of
all Unencumbered Assets. Each of the Borrower, each other Loan Party and each other
Subsidiary has good, marketable (in the case of real property) and legal title
to, or a valid leasehold interest in, its respective material assets. No Unencumbered
Asset is subject to any Lien other than Permitted Liens.
(g) Existing
Indebtedness; Total Liabilities. Part I of Schedule 7.1.(g) is, as of
March 31, 2015, a complete and correct listing of all Indebtedness
(including all Guarantees) of each of the Borrower,
the other Loan Parties and the other Subsidiaries, and if such Indebtedness is
secured by any Lien, a description of all of the property subject to such Lien.
Part II of Schedule 7.1.(g) is, as of such date, a complete and correct
listing of all Total Liabilities of the Borrower, the other Loan Parties and
the other Subsidiaries (excluding any Indebtedness set forth on Part I of such
Schedule). The outstanding principal amount of Indebtedness incurred by the
Borrower and its Subsidiaries during the period from March 31, 2015
to and including the Agreement Date does not exceed $300,000,000 in the
aggregate.
(h) Material
Contracts. Schedule 7.1.(h) is, as of March 31, 2015, a
true, correct and complete listing of all Material Contracts. Copies of any
Material Contracts entered into by the Borrower or any Subsidiary during the
period from March 31, 2015 to and including the Agreement Date have
been publicly filed by the Borrower with the SEC. As of the Agreement Date, each
of the Borrower, the other Loan Parties and the other Subsidiaries that are
parties to any Material Contract has performed and is in compliance with all of
the terms of such Material Contract to the extent that the noncompliance therewith
would give any other party thereto the right to terminate such Material
Contract.
(i) Litigation.
Except as set forth on Schedule 7.1.(i), there are no actions, suits or
proceedings pending (or, 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 the Borrower, any other Loan Party, any other Subsidiary
or any of their respective property in any court or before any arbitrator of
any kind or before or by any other Governmental Authority which, (i) is
reasonably likely to be adversely determined and, if adversely determined, could
reasonably be expected to have a Material Adverse Effect or (ii) in any manner
draws into question the validity or enforceability of any Loan Document. There
are no strikes, slow downs, work stoppages or walkouts or other labor disputes
in progress or threatened relating to, any Loan Party or any other Subsidiary.
(j) Taxes.
All federal, material state and other tax returns of the Borrower, each other Loan
Party and each other Subsidiary required by Applicable Law to be filed have
been duly filed, and all material federal, state and other taxes, assessments
and other governmental charges or levies upon, each Loan Party, each other
Subsidiary and their respective properties, income, profits and assets which
are due and payable have been paid, except any such nonpayment or non-filing
which is at the time permitted under Section 8.6. As of the Agreement
Date, none of the United States federal income tax returns of the Borrower, any
other Loan Party or any other Subsidiary is under a material tax audit. All
charges, accruals and reserves on the books of the Borrower, the other Loan
Parties and the other Subsidiaries in respect of any taxes or other
governmental charges are in accordance with GAAP to the extent required under
GAAP.
(k) Financial
Statements. The Borrower has furnished to the Administrative Agent for
distribution to the Lenders copies of (i) the audited consolidated balance
sheets of the Borrower and its consolidated Subsidiaries for the fiscal years
ended December 31, 2013 and December 31, 2014, and the related audited consolidated
statements of income, equity and cash flows for the fiscal years ended on such
dates, with the opinion thereon of KPMG LLP, and (ii) the unaudited
consolidated balance sheet of the Borrower and its consolidated Subsidiaries
for the fiscal quarter ended March 31, 2015, and the related unaudited consolidated
statements of income and cash flows of the Borrower and its consolidated
Subsidiaries for the fiscal quarter ended on such date. Such financial
statements (including in each case related schedules and notes) are complete
and correct in all material respects and present fairly, in accordance with
GAAP consistently applied throughout the periods involved, the consolidated
financial position of the Borrower and its consolidated Subsidiaries as at
their respective dates and the results of operations and the cash flow for such
periods (subject, as to interim statements, to changes resulting from normal
year‑end audit adjustments and the absence of footnotes). Neither the
Borrower nor any of its Subsidiaries has on the Agreement Date 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 notes thereto, except as referred to or reflected or provided for
in said financial statements.
(l) No
Material Adverse Change. Since December 31, 2014, there have been no events,
changes, circumstances or occurrences that, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect. The Borrower is
Solvent and the Borrower and its Subsidiaries on a consolidated basis are Solvent.
(m) ERISA.
(i) Except as would not reasonably
be expected, individually or in the aggregate, to have a Material Adverse
Effect, each Benefit Arrangement is in compliance with the applicable
provisions of ERISA, the Internal Revenue Code and other Applicable Laws.
Except with respect to Multiemployer Plans, each Qualified Plan has received a
favorable determination letter from the IRS or is maintained under a
prototype plan and may rely upon a favorable opinion letter issued by the IRS
with respect to such prototype plan, or an application for such a letter is
currently being processed by the IRS with respect thereto. To the best
knowledge of the Borrower, nothing has occurred which would cause the loss of
its reliance on each Qualified Plan’s favorable determination letter or opinion
letter.
(ii) With respect to any Benefit
Arrangement that is a retiree welfare benefit arrangement, all amounts have
been accrued on the financial statements of the Borrower or any Subsidiary in
accordance with FASB ASC 715.
(iii) Except as would not reasonably
be expected, individually or in the aggregate, to have a Material Adverse
Effect: (i) no ERISA Event has occurred or is expected to occur;
(ii) there are no pending, or to the best knowledge of the Borrower,
threatened, claims, actions or lawsuits or other action against the Borrower by
any Governmental Authority, plan participant or beneficiary with respect to a
Benefit Arrangement; (iii) there are no violations of the fiduciary
responsibility rules by the Borrower or, to the knowledge of the Borrower, any
other fiduciary with respect to any Benefit Arrangement; and (iv) 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 Plan, that would reasonably be expected to
subject any member of the Borrower or such Subsidiary to a tax on prohibited
transactions imposed by Section 502(i) of ERISA or an excise tax imposed
by Section 4975 of the Internal Revenue Code.
(n) Absence
of Defaults. None of the Loan Parties or any of the other Subsidiaries is
in default under its certificate or articles of incorporation or formation,
bylaws, partnership agreement, limited liability company agreement or other
similar organizational documents, and no event has occurred, which has not been
remedied, cured or waived: (i) which constitutes a Default or an Event of
Default; or (ii) which constitutes, or which with the passage of time, the
giving of notice, or both, would constitute, a default or event of default by,
any Loan Party or any other Subsidiary under any agreement (other than this
Agreement) or judgment, decree or order to which any such Person is a party or
by which any such Person or any of its respective properties may be bound where
such default or event of default could, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(o) Environmental
Laws. In the ordinary course of business, and from time to time, each of the
Borrower, each other Loan Party and each other Subsidiary conducts reviews of
the effect of Environmental Laws on its respective business, operations and
properties. Each of the Borrower, each other Loan
Party and each other Subsidiary: (i) is in compliance with all Environmental
Laws applicable to its business, operations and the Properties, (ii) has
obtained all Governmental Approvals which are required under Environmental Laws,
and each such Governmental Approval is in full force and effect, and (iii) is
in compliance with all terms and conditions of such Governmental Approvals,
where with respect to each of the immediately preceding clauses (i) through (iii)
the failure to obtain or to comply with could reasonably be expected to have a
Material Adverse Effect. Except for any of the following matters that could
not reasonably be expected to have a Material Adverse Effect, no Loan Party has
any knowledge of, or has received notice of, any past, present, or pending
releases, events, conditions, circumstances, activities, practices, incidents, facts,
occurrences, actions, or plans that, with respect to any Loan Party or any
other Subsidiary, their respective businesses, operations or with respect to the
Properties, may: (x) cause or contribute to an actual or alleged
violation of or noncompliance with Environmental Laws, (y) cause or
contribute to any other potential common‑law or legal claim or other liability,
or (z) cause any of the Properties to become subject to any restrictions
on ownership, occupancy, use or transferability under any Environmental Law or
require the filing or recording of any notice, approval or disclosure document
under any Environmental Law and, with respect to the immediately preceding
clauses (x) through (z) is based on or related to the on-site or off-site manufacture,
generation, processing, distribution, use, treatment, storage, disposal,
transport, removal, clean up or handling, or the emission, discharge, release
or threatened release of any wastes or Hazardous Material, or any other
requirement under Environmental Law. There is no civil, criminal, or
administrative action, suit, demand, claim, hearing, notice, or demand letter, mandate,
order, lien, request, investigation, or proceeding pending or, to the Borrower’s
knowledge after due inquiry, threatened, against the Borrower, any other Loan
Party or any other Subsidiary relating in any way to Environmental Laws which, reasonably
could be expected to have a Material Adverse Effect. None of the Properties is
listed on or proposed for listing on the National Priority List promulgated
pursuant to the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 and its implementing regulations, or any state or local priority
list promulgated pursuant to any analogous state or local law, except to the
extent all such listings taken together could not reasonably be expected to
result in a Material Adverse Effect. To the Borrower’s knowledge, no Hazardous
Materials generated at or transported from the Properties are or have been
transported to, or disposed of at, any location that is listed or proposed for
listing on the National Priority List 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 a Material Adverse Effect.
(p) Investment
Company. None of the Borrower, any other Loan Party or any other Subsidiary
is (i) an “investment company” or a company “controlled” by an “investment
company” within the meaning of the Investment Company Act of 1940, as amended,
or (ii) subject to any other Applicable Law which purports to regulate or
restrict its ability to borrow money or obtain other extensions of credit or to
consummate the transactions contemplated by this Agreement or to perform its
obligations under any Loan Document to which it is a party.
(q) Margin
Stock. None of the Borrower, any other Loan Party or any other Subsidiary 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.
(r) Affiliate
Transactions. As of the Agreement Date, except as set forth on Schedule 7.1.(r),
and as permitted by Section 10.8., none of the Borrower, any other Loan Party
or any other Subsidiary is a party to or bound by any agreement or arrangement
with any Affiliate.
(s) Intellectual
Property. Except for such instances as would not, individually or in the
aggregate, have a Material Adverse Effect: (1) each of the Loan Parties
and each other Subsidiary owns or has the right to
use, under valid license agreements or otherwise, all patents, licenses,
franchises, trademarks, trademark rights, service marks, service mark rights, trade
names, trade name rights, trade secrets and copyrights (collectively, “Intellectual
Property”) necessary to the conduct of its businesses, without known conflict
with any patent, license, franchise, trademark, trademark right, service mark,
service mark right, trade secret, trade name, copyright, or other proprietary
right of any other Person; (2) all such Intellectual Property is fully
protected and/or duly and properly registered, filed or issued in the
appropriate office and jurisdictions for such registrations, filing or
issuances and (3) no claim has been asserted by any Person with respect to
the use of any such Intellectual Property by the Borrower, any other Loan Party
or any other Subsidiary, or challenging or questioning the validity or
effectiveness of any such Intellectual Property.
(t) Business.
As of the Agreement Date, the Borrower, the other Loan Parties and the other
Subsidiaries are engaged primarily in the business of owning, funding the
development of, operating, buying, selling and managing completed commercial properties
leased to third party tenants principally, but not exclusively, on a net lease
basis, together with other business activities incidental thereto.
(u) Broker’s
Fees. No broker’s or finder’s fee, commission or similar compensation will
be payable with respect to the transactions contemplated hereby. Except for Fees
payable pursuant to the Fee Letter, no other similar fees or commissions will
be payable by any Loan Party for any other services rendered to the Borrower,
any other Loan Party or any other Subsidiary ancillary to the transactions
contemplated hereby.
(v) Accuracy
and Completeness of Information. All written information, reports and
other papers and data (other than financial projections and other forward
looking statements and general economic and general industry data) furnished to
the Administrative Agent, any Issuing Bank or any Lender by, on behalf of, or
at the direction of, the Borrower, any other Loan Party or any other
Subsidiary, in connection with the negotiation, preparation or execution of
this Agreement or delivered hereunder from
time to time, taken as a whole, together with the information publicly filed by
the Borrower or its Subsidiaries with the SEC does not, taken as a whole,
contain any material misstatement of fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading,
or, in the case of financial statements, present fairly, in accordance with
GAAP consistently applied throughout the periods involved, the financial
position of the Persons involved as at the date thereof and the results of
operations for such periods (subject, as to interim statements, to changes
resulting from normal year end audit adjustments and absence of full footnote
disclosure). All financial projections and other forward looking statements
prepared by or on behalf of the Borrower, any other Loan Party or any other
Subsidiary that have been or may hereafter be made available to the
Administrative Agent or any Lender by or on behalf of the Borrower, any other
Loan Party or any other Subsidiary were or will be prepared in good faith based
on based upon assumptions believed to be
reasonable at the time made (it being understood that projections are subject
to significant uncertainties and contingencies, many of which are beyond the
Borrower’s control, that no assurance can be given that any particular
projections will be realized and that actual results during the period or
periods covered by any such information may differ significantly from the
forecasted, estimated, pro forma, project or anticipated results and
assumptions, and such differences may be material).
(w) Unencumbered
Assets. Each of the Properties included in calculations of Unencumbered
Asset Value qualifies as an Unencumbered Asset.
(x) Not Plan Assets; No Prohibited
Transactions. None of the assets of the Borrower, any other Loan Party or
any other Subsidiary constitutes “plan assets” within the meaning of ERISA, the
Internal Revenue Code and the respective regulations 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.
(y) Anti-Corruption
Laws and Sanctions; Anti-Terrorism Laws. None of the Borrower, any
Subsidiary or, to the knowledge of the Borrower, any of their respective
directors, officers, employees and agents (i) is an “enemy” or an “ally of
the enemy” within the meaning of Section 2 of the Trading with the Enemy
Act of the United States, 50 U.S.C. App. §§ 1 et seq., as amended (the “Trading
with the Enemy Act”) or (ii) is in violation of (A) the Trading with the
Enemy Act, (B) any of the foreign assets control regulations of the United
States Treasury Department or any enabling legislation or executive order
relating thereto, including without limitation, Executive Order No. 13224,
effective as of September 24, 2001 relating to Blocking Property and Prohibiting
Transactions With Persons Who Commit, Threaten to Commit or Support Terrorism
(66 Fed. Reg. 49079 (2001)) or (C) the Patriot Act (collectively, the
“Anti-Terrorism Laws”). The Borrower has implemented and maintains in effect
policies and procedures designed to ensure compliance in all material respects
by the Borrower, its Subsidiaries and their respective directors, officers,
employees and agents (in their capacities as such) with Anti-Corruption Laws,
Anti-Terrorism Laws and applicable Sanctions, and the Borrower, its
Subsidiaries and, to the knowledge of the Borrower, their respective directors,
officers, employees and agents are in compliance with Anti-Corruption Laws,
Anti-Terrorism Laws and applicable Sanctions in all material respects. None of
the Borrower or any Subsidiary is, or derives any material portion of its
assets or operating income from investments in or transactions with, a
Sanctioned Person and, to the knowledge of the Borrower, none of the respective
directors, officers, employees or agents of the Borrower or any of its
Subsidiaries is a Sanctioned Person.
(z) REIT
Status. The Borrower qualifies as, and has elected to be treated as, a
REIT.
Section 7.2.
Survival of Representations and Warranties, Etc.
All representations and warranties made under this
Agreement and the other Loan Documents shall be deemed to be made at and as of
the Agreement Date, the Effective Date, the date on which any extension of the Revolving
Termination Date is effectuated pursuant to Section 2.14., the date on
which any increase of the Revolving Commitments is effectuated pursuant to
Section 2.17. and at and as of the date of the occurrence of each
Credit Event, except to the extent that such representations and warranties
expressly relate solely to an earlier date (in which case such representations
and warranties shall have been true and correct in all material respects
(except in the case of a representation or warranty qualified by materiality,
in which case such representation or warranty shall be true and correct in all
respects) on and as of such earlier date) and except for changes in factual
circumstances specifically and expressly permitted hereunder or as waived or
consented to by the applicable Lenders in accordance with Section 13.6. All such
representations and warranties shall survive the effectiveness of this
Agreement, the execution and delivery of the Loan Documents and the making of
the Loans and the issuance of the Letters of Credit.
Article VIII. Affirmative Covenants
For
so long as this Agreement is in effect, the Borrower shall comply with the
following covenants:
Section 8.1. Preservation of Existence and Similar Matters.
Except
as otherwise permitted under Section 10.4., the Borrower shall, and shall
cause each other Loan Party and each other Subsidiary to, preserve and maintain
its respective existence, rights, franchises, licenses and privileges in the
jurisdiction of its incorporation or formation and 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 and where the failure to be so authorized and qualified could
reasonably be expected to have a Material Adverse Effect.
Section 8.2.
Compliance with Applicable Law.
The
Borrower shall comply, and shall cause each other Loan Party and each other
Subsidiary to comply, and the Borrower shall use, and shall cause each other
Loan Party and each other Subsidiary to use, commercially reasonable efforts to
cause all other Persons occupying, using or present on the Properties to
comply, with all Applicable Law, including the obtaining of all
Governmental Approvals, the failure with which to comply could reasonably be
expected to have a Material Adverse Effect. The Borrower will maintain in
effect and enforce policies and procedures designed to ensure compliance in all
material respects by the Borrower, its Subsidiaries and their respective
directors, officers, employees and agents with Anti-Corruption Laws,
Anti-Terrorism Laws and applicable Sanctions.
Section 8.3.
Maintenance of Property.
In
addition to the requirements of any of the other Loan Documents and except as
may otherwise be expressly permitted herein, the Borrower shall, and shall
cause each other Loan Party and each other Subsidiary to, protect and preserve
all of its respective material properties, including, but not limited to, all material
Intellectual Property necessary to the conduct of its respective business, and
maintain in good repair, working order and condition all tangible properties, ordinary
wear and tear excepted.
Section 8.4.
Conduct of Business.
The
Borrower shall, and shall cause each other Loan Party and each other Subsidiary
to, carry on its respective businesses as described in Section 7.1.(t).
Section 8.5.
Insurance.
The
Borrower shall, and shall cause each other Loan Party and each other Subsidiary
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 or as may be
required by Applicable Law. The Borrower shall from time to time deliver to the
Administrative Agent upon 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.
Section 8.6.
Payment of Taxes and Claims.
The
Borrower shall, and shall cause each other Loan Party and each other Subsidiary
to, pay and discharge when due (a) all taxes, assessments and governmental
charges or levies 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 (other than a Lien not
resulting in an Event of Default under Section 11.1.(h)) on any
properties of such Person; provided, however, that this Section shall not require
the payment or discharge of any such tax, assessment,
charge, levy or claim which is being contested in good faith by appropriate
proceedings which operate to suspend the collection thereof and for which
adequate reserves have been established on the books of such Person in
accordance with GAAP to the extent required by GAAP.
Section 8.7.
Books and Records; Inspections.
The Borrower shall, and shall cause each other
Loan Party and each other Subsidiary to, keep proper books of record and
account in which full, true and correct entries shall be made of all dealings
and transactions in relation to its business and activities. The Borrower
shall, and shall cause each other Loan Party and each other Subsidiary to,
permit representatives of the Administrative Agent or any Lender to visit and inspect any of their respective properties,
to examine and make abstracts from any of their respective books and records
and to discuss their respective affairs, finances and accounts with their
respective officers, employees and independent public accountants (in the presence
of an officer of the Borrower), all at such reasonable times during business
hours and as often as may reasonably be requested and so long as no Event of
Default exists, with reasonable prior notice. The Borrower shall be obligated
to reimburse the Administrative Agent and the Lenders for their reasonable costs
and expenses incurred in connection with the exercise of their rights under
this Section only if such exercise occurs while a Default or Event of Default
exists. The Borrower hereby authorizes and instructs its accountants to
discuss the financial affairs of the Borrower, any other Loan Party or any
other Subsidiary with the Administrative Agent or any Lender in accordance with
the terms of this Section.
Section 8.8.
Use of Proceeds.
The
Borrower will use the proceeds of Loans only (a) for the payment of
pre-development and development costs incurred in connection with Properties
owned by the Borrower or any Subsidiary; (b) to finance acquisitions and
equity and debt investments otherwise permitted under this Agreement;
(c) to finance capital expenditures and the repayment of Indebtedness of
the Borrower and its Subsidiaries (including scheduled amortization payments on
Indebtedness); and (d) to provide for the general working capital needs of
the Borrower and its Subsidiaries and for other general corporate purposes of
the Borrower and its Subsidiaries (including distributions and stock
repurchases otherwise permitted under this Agreement). The Borrower shall only
use Letters of Credit for the same purposes for which it may use the proceeds
of Loans. The Borrower shall not, and shall not permit any other Loan Party or
any other Subsidiary to, use any part of such proceeds, or any Letter of
Credit, to purchase or carry, or to reduce or retire or refinance any credit
incurred to purchase or carry, any margin stock (within the meaning of
Regulation U or Regulation X 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; provided, however, to the extent
not otherwise prohibited by this Agreement or the other Loan Documents, the
Borrower may use proceeds of the Loans to purchase
outstanding shares of its common stock and Preferred Stock (to the extent such
payments are permitted by Section 10.1.(c)) so long as such use will not result in any of the Loans, Letters of
Credit or other Obligations being considered to be “purpose credit” directly or
indirectly secured by margin stock within the meaning of Regulation U or
Regulation X of the Board of Governors of the Federal Reserve System. No
proceeds of any Loan or any Letter of Credit will be used directly or indirectly
in any manner which would violate Anti-Corruption Laws, Anti-Terrorism Laws or
applicable Sanctions.
Section 8.9.
Environmental Matters.
The Borrower shall, and shall cause each other Loan
Party and each other Subsidiary to, comply with, and to include within all
leases relating to any Property for which the Borrower, any other Loan Party or
other Subsidiary is the lessor terms requiring their respective tenants to
comply with, all Environmental Laws the failure with
which to comply could reasonably be expected to have a Material Adverse Effect.
The Borrower shall comply, and shall cause each other Loan Party and each other
Subsidiary to comply, and the Borrower shall use, and shall cause each other
Loan Party and each other Subsidiary to use, commercially reasonable efforts to
cause all other Persons occupying, using or present on the Properties to
comply, with all Environmental Laws in all material respects. The Borrower
shall, and shall cause each other Loan Party and each other Subsidiary to,
promptly take all actions and pay or arrange to pay all costs necessary for it
and for the Properties to comply in all material respects with all
Environmental Laws and all Governmental Approvals, including actions to remove
and dispose of all Hazardous Materials and to clean up the Properties as
required under Environmental Laws. The Borrower shall, and shall cause each
other Loan Party and each other Subsidiary to, promptly take 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. Nothing in
this Section shall impose any obligation or liability whatsoever on the Administrative
Agent or any Lender.
Section 8.10.
Further Assurances.
At
the Borrower’s cost and expense and upon request of the Administrative Agent,
the Borrower shall, and shall cause each other Loan Party and each other
Subsidiary to, duly execute and deliver or cause to be duly 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 more effectively the provisions and purposes of this
Agreement and the other Loan Documents.
Section 8.11.
Material Contracts.
The
Borrower shall, and shall cause each other Loan Party and each other Subsidiary
to, duly and punctually perform and comply with all terms and conditions of all
Material Contracts to which it is a party to the extent that the failure to
comply therewith would permit any other party thereto to terminate such
Material Contract. The Borrower shall not, and shall not permit any other Loan
Party or any other Subsidiary to, do or knowingly permit to be done anything to
impair materially the value of any of the Material Contracts.
Section 8.12.
REIT Status.
The
Borrower shall maintain its status as, and election to be treated as, a REIT
under the Internal Revenue Code.
Section 8.13.
Exchange Listing.
The
Borrower shall maintain at least one class of common shares of the Borrower
listed on the New York Stock Exchange.
Section 8.14.
Guarantors.
(a) Requirements
to Become a Guarantor. As soon as available, and in any event within 30 days
of the date on which a Subsidiary Guarantees, or otherwise becomes obligated in
respect of, any Indebtedness of the Borrower or of any other Subsidiary, the
Borrower shall deliver to the Administrative Agent each of the following in
form and substance satisfactory to the Administrative Agent: (i) an
Accession Agreement executed by such Subsidiary and (ii) the items that
would have been delivered under subsections (iv) through (viii) and (xv)
of Section 6.1.(a) and under Section 6.1.(e) if such Subsidiary had been
required to become a Guarantor on the Agreement Date; provided, that (x)
the foregoing requirement to become a Guarantor shall
not apply to Guaranties of exceptions to non-recourse liability described in
the definition of “Nonrecourse Indebtedness” and (y) a Foreign Subsidiary that
only Guarantees, or otherwise becomes obligated in respect of, Indebtedness of
another Foreign Subsidiary shall not be required to become a Guarantor. In
addition, the Borrower shall be permitted, in its sole discretion, to cause any
Subsidiary to become a Guarantor at any time by delivering to the
Administrative Agent each of the following in form and substance satisfactory
to the Administrative Agent: (i) an Accession Agreement executed by such
Subsidiary and (ii) the items that would have been delivered under
subsections (iv) through (viii) and (xv) of Section 6.1.(a) and under
Section 6.1.(e) if such Subsidiary had been required to become a Guarantor on
the Agreement Date. Notwithstanding the foregoing, (A) none of Crest Net
Lease, Inc., its Deemed Taxable REIT Subsidiaries, ARCT TRS Corp. or its Deemed
Taxable REIT Subsidiaries shall be required to become Guarantors and (B) upon
written notice from the Borrower to the Administrative Agent and the Lenders,
the Borrower may designate up to three Taxable REIT Subsidiaries (in addition
to Crest Net Lease, Inc. and ARCT TRS Corp.) that shall not, and whose Deemed
Taxable REIT Subsidiaries shall not, be required to become Guarantors.
(b) Release
of Guarantors. The Borrower may request in writing that the Administrative
Agent release, and upon receipt of such request the Administrative Agent shall
release, a Guarantor from the Guaranty so long as: (i)(A) such Guarantor
is not, or simultaneously with its release from the Guaranty will not be,
required to be a party to the Guaranty under the immediately preceding
subsection (a) or (B) such Guarantor has ceased to be, or
simultaneously with its release from the Guaranty will cease to be, a
Subsidiary; (ii) no Default or Event of Default shall then be in existence
or would occur as a result of such release; (iii) the representations and
warranties made or deemed made by the Borrower and each other Loan Party in the
Loan Documents to which any of them is a party, shall be true and correct in
all material respects (except to the extent otherwise qualified by materiality,
in which case such representation or warranty shall be true and correct in all
respects) on and as of the date of such release with the same force and effect
as if made on and as of such date except to the extent that such
representations and warranties expressly relate solely to an earlier date (in
which case such representations and warranties shall have been true and correct
in all material respects (except to the extent otherwise qualified by
materiality, in which case such representation or warranty shall be true and
correct in all respects) on and as of such earlier date) and except for changes
in factual circumstances specifically and expressly permitted under the Loan
Documents or waived or consented to by the applicable Lenders in accordance
with the provisions of Section 13.6.; and (iv) the Administrative
Agent shall have received such written request at least 10 Business Days
(or such shorter period as may be acceptable to the Administrative Agent) prior
to the requested date of release. Delivery by the Borrower to the Administrative
Agent of any such request shall constitute a representation by the Borrower
that the matters set forth in the preceding sentence (both as of the date of
the giving of such request and as of the date of the effectiveness of such
request) are true and correct with respect to such request.
Article IX. Information
For
so long as this Agreement is in effect, the Borrower shall furnish to the Administrative
Agent for distribution to each of the Lenders:
Section 9.1.
Quarterly Financial Statements.
As
soon as available and in any event within 5 Business Days after the same is
filed with the SEC (but in no event later than 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 Borrower and its Subsidiaries as at the end
of such period and the related unaudited consolidated statements of income and
cash flows of the Borrower and its Subsidiaries for such period, setting forth
in each case 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 the chief financial officer of the
Borrower, in his or her opinion, to present fairly, in accordance with GAAP,
the consolidated financial position of the Borrower and its Subsidiaries 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).
Section 9.2.
Year‑End Statements.
As
soon as available and in any event within 5 Business Days after the same is
filed with the SEC (but in no event later than 75 days after the end of each
fiscal year of the Borrower), the audited consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal year and the related
audited consolidated statements of income, equity and cash flows of the
Borrower and its Subsidiaries 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 the chief financial officer of the
Borrower, in his or her opinion, to present fairly, in accordance with GAAP and
in all material respects, the financial position of the Borrower and its
Subsidiaries as at the date thereof and the result of operations for such
period and (b) accompanied by the report thereon of KPMG LLP or any other
independent certified public accountants of recognized national standing whose
report shall not be subject to any “going concern” or like qualification or
exception or any qualification or exception as to the scope of such audit and
who shall have authorized the Borrower to deliver such financial statements and
report to the Administrative Agent and the Lenders pursuant to this Agreement.
Section 9.3.
Compliance Certificate.
At
the time the financial statements are furnished pursuant to Sections 9.1.
and 9.2., a certificate substantially in the form of Exhibit S (a “Compliance
Certificate”) executed on behalf of the Borrower by the chief financial officer
of the Borrower (a) setting forth in reasonable detail as of the end of
such fiscal quarter or fiscal year, as the case may be, the calculations
required to establish whether the Borrower was in compliance with the covenants
contained in Section 10.1.; and (b) stating that 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 and the steps being taken by the
Borrower with respect to such event, condition or failure.
Section 9.4.
Other Information.
(a) Promptly
upon receipt thereof, copies of all reports, if any, submitted to the Borrower
or its Board of Directors by its independent public accountants including,
without limitation, any management report;
(b) Within
5 Business Days of the filing thereof, copies of all registration
statements (excluding the exhibits thereto (unless requested by the
Administrative Agent) and any registration statements on Form S‑8 or its
equivalent), reports on Forms 10‑K, 10‑Q and 8‑K (or their
equivalents) and all other periodic reports which any Loan Party or any other
Subsidiary shall file with the SEC or any national securities exchange;
(c) Promptly
upon the mailing thereof to the shareholders of the Borrower generally, copies
of all financial statements, reports and proxy statements so mailed and
promptly upon the issuance thereof copies of all material press releases issued
by the Borrower, any Subsidiary or any other Loan Party;
(d) As
soon as available and in any event within 45
days after the end of each fiscal quarter of the Borrower, an Unencumbered
Asset Certificate setting forth the information to be contained therein as of
the last day of such fiscal quarter;
(e) No later than 90 days after the
end of each fiscal year of the Borrower ending prior to the Revolving
Termination Date, projected balance sheets, operating statements and cash flow
budgets of the Borrower and its Subsidiaries on a consolidated basis for each
quarter of the next succeeding fiscal year, all itemized in reasonable detail. The
foregoing shall be accompanied by pro forma calculations, together with
detailed assumptions, required to establish whether or not the Borrower, and
when appropriate its consolidated Subsidiaries, will be in compliance with the
covenants contained in Section 10.1. and at the end of each fiscal quarter
of the next succeeding fiscal year;
(f) If
any ERISA Event shall occur that individually, or together with any other ERISA
Event that has occurred, could reasonably be expected to have a Material
Adverse Effect, a certificate of the chief executive officer or chief financial
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;
(g) To
the extent any Loan Party or any other Subsidiary is aware of the same, prompt
notice of the commencement of any proceeding or investigation by or before any
Governmental Authority and any 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 other Subsidiary or any of
their respective properties, assets or businesses which, if determined or
resolved adversely to such Person, could reasonably be expected to have a
Material Adverse Effect;
(h) A
copy of any amendment to the certificate or articles of incorporation or
formation, bylaws, partnership agreement or other similar organizational
documents of any Loan Party within 5 Business Days after the effectiveness
thereof;
(i) Prompt
notice of (i) any change in the senior management of the Borrower, any
other Loan Party or any other Subsidiary and (ii) any change in the
business, assets, liabilities, financial condition, results of operations or
business prospects of any Loan Party or any other Subsidiary which has had, or
could reasonably be expected to have, a Material Adverse Effect;
(j) Prompt
notice of the occurrence of any Default or Event of Default;
(k) Promptly upon entering into any Material
Contract after the Agreement Date, a copy of such Material Contract and prompt
notice of any event constituting a breach of a Material Contract by the
Borrower, any other Loan Party or any other Subsidiary, which breach (with the
passage of time, the giving of notice, or otherwise), would permit a
counterparty to such Material Contract to terminate such Material Contract;
(l) Prompt
notice of any order, judgment or decree in excess of $20,000,000 having been
entered against any Loan Party or any other Subsidiary or any of their
respective properties or assets;
(m) Prompt
notice of any written notification of a material violation of any Applicable Law
or any inquiry shall have been received by any Loan Party or any other
Subsidiary from any Governmental Authority;
(n) Prompt
notice of the acquisition, incorporation or other creation of any Subsidiary,
the purpose for such Subsidiary, the nature of the assets and liabilities
thereof and whether such Subsidiary is a Wholly Owned Subsidiary;
(o) Promptly upon the reasonable request
of the Administrative Agent, evidence of the Borrower’s calculation of the
Ownership Share with respect to a Subsidiary or an Unconsolidated Affiliate,
such evidence to be in form and detail satisfactory to the Administrative Agent;
(p) Promptly,
upon the Borrower becoming aware of any change in the Credit Rating, a
certificate stating that the Borrower’s Credit Rating has changed and the new
Credit Rating that is in effect;
(q) Promptly,
upon each request, information identifying the Borrower as a Lender may request
in order to comply with applicable “know your customer” and anti-money
laundering rules and regulations, including without limitation, the Patriot Act;
and
(r) From
time to time and promptly upon each request, such data, certificates, reports,
statements, documents or further information regarding any Property or the
business, assets, liabilities, financial condition, results of operations or
business prospects of the Borrower, any of its Subsidiaries, or any other Loan
Party as the Administrative Agent or any Lender through the Administrative
Agent may reasonably request.
Section 9.5.
Electronic Delivery of Certain Information.
(a) Documents
required to be delivered pursuant to the Loan Documents may be delivered by
electronic communication and delivery, including, the Internet, e-mail or
intranet websites to which the Administrative Agent and each Lender have access
(including a commercial, third-party website or a website sponsored or hosted
by the Administrative Agent or the Borrower) provided that the foregoing shall
not apply to (i) notices to any Lender (or the Issuing Banks) pursuant to
Article II. (which delivery is covered by subsection (b) below) and (ii)
any Lender (or Issuing Bank) that has notified the Administrative Agent and the
Borrower that it cannot or does not want to receive electronic communications.
The Administrative Agent or the Borrower may, in its discretion, agree to
accept notices and other communications to it hereunder by electronic delivery
pursuant to procedures approved by it for all or particular notices or
communications. Documents or notices delivered electronically shall be deemed
to have been delivered 24 hours after the date and time on which the Administrative
Agent or the Borrower posts such documents or the documents become available on
a commercial website and the Administrative Agent or Borrower notifies each
Lender of said posting and provides a link thereto provided, (x) if such
notice or other communication is not sent or posted during the normal business
hours of the recipient, said posting date and time shall be deemed to have
commenced as of 9:00 a.m. Pacific time on the opening of business on the next
business day for the recipient and (y) if the deemed time of delivery
occurs on a day that is not a business day for the recipient, the deemed time
of delivery shall be 9:00 a.m. Pacific time on the next business day of the
recipient. Notwithstanding anything contained herein, the Borrower shall
deliver paper copies (which for the avoidance of doubt may be delivered by
facsimile) of any documents to the Administrative Agent or to any Lender that
requests such paper copies until a written request to cease delivering paper
copies is given by the Administrative Agent or such Lender. The Administrative
Agent shall have no obligation to request the delivery of or to maintain paper
copies of the documents delivered electronically, and in any event shall have
no responsibility to monitor compliance by the Borrower with any such request
for delivery. Each Lender shall be solely responsible for requesting delivery
to it of paper copies and maintaining its paper or electronic documents.
(b) Notwithstanding
anything to the contrary in the foregoing subsection (a) and for the avoidance
of doubt, (i) any documents required to be delivered by any Loan Party
pursuant to the Loan Documents may be delivered by electronic means described
above, and for all purposes hereunder, including delivery of information
required under Article IX., electronic delivery of such documents by any
such Loan Party to the Administrative Agent, the Issuing Banks and the Lenders
shall be deemed effective when such documents are
delivered to the Administrative Agent and such Loan Party receives an
acknowledgement from the Administrative Agent (such as by the “return receipt
requested” function, as available, return email or other written
acknowledgement), or if posted to a website as described in subsection (a)
above, when notice of such posting is given to the Administrative Agent (which
notice may be given electronically and deemed effective in accordance with this
subsection); provided, that, in any event, any documents or notices delivered
electronically pursuant to this subsection shall be deemed delivered 24 hours
after the Borrower delivers such documents or posts such notice electronically
to the Administrative Agent; provided, further, however, that (x) if such
documents are not delivered or such notice of posting of documents to such a
website is not sent during normal business hours of the Administrative Agent,
such documents or notice shall be deemed to have been sent at the opening of
the next Business Day of the Administrative Agent and (y) if the deemed
time of delivery occurs on a day that is not a Business Day, the deemed time of
delivery shall be 9:00 a.m. Pacific time on the next Business Day; and (ii)
documents required to be delivered pursuant to Article II. may be
delivered electronically to a website provided for such purpose by the
Administrative Agent pursuant to procedures provided to the Borrower by the
Administrative Agent.
Section 9.6.
Public/Private Information.
The
Borrower shall cooperate with the reasonable requests of the Administrative
Agent in connection with the publication of certain materials and/or
information provided by or on behalf of the Borrower. Documents required to be
delivered pursuant to the Loan Documents shall be delivered by or on behalf of
the Borrower to the Administrative Agent and the Lenders (collectively, “Information
Materials”) pursuant to this Article and the Borrower shall designate Information
Materials (a) that are either available to the public or not material with
respect to the Borrower and its Subsidiaries or any of their respective
securities for purposes of United States federal and state securities laws, as “Public
Information” and (b) that are not Public Information as “Private Information”.
Section 9.7.
USA Patriot Act Notice; Compliance.
The Patriot Act 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 a non-fiduciary agent for all Lenders hereunder) may from
time-to-time request, and the Borrower shall, and shall cause the other Loan
Parties to, provide promptly upon any such request to such Lender, such Loan
Party’s 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. Negative Covenants
For
so long as this Agreement is in effect, the Borrower shall comply with the
following covenants:
Section 10.1.
Financial Covenants.
(a) Ratio
of Total Liabilities to Gross Asset Value. Except as provided in this
subsection (a) below, the Borrower shall not permit the ratio of (i) Total
Liabilities of the Borrower and its Subsidiaries determined on a consolidated
basis to (ii) Gross Asset Value to exceed 0.60 to 1.00 at the end of any
fiscal quarter of the Borrower. For purposes of calculating this ratio, (A) Total
Liabilities shall be adjusted by deducting therefrom an amount equal to the
lesser of (x) unrestricted cash and Cash Equivalents
of the Borrower and its Subsidiaries as of the date of determination in excess
of $30,000,000 and (y) the amount of Total Liabilities that matures on or
before the date that is 24 months from the date of the calculation and
(B) Gross Asset Value shall be adjusted by deducting therefrom the amount
by which Total Liabilities is adjusted under the immediately preceding clause
(A). Notwithstanding the foregoing, the Borrower shall have the option,
exercisable two times during the term of this Agreement, to elect that the
ratio of Total Liabilities to Gross Asset Value may exceed 0.60 to 1.00 for any
fiscal quarter in which the Borrower completes a Material Acquisition and the
immediately subsequent fiscal quarter so long as (1) the Borrower has delivered
a written notice to the Administrative Agent that the Borrower is exercising
its option under this subsection (a) and (2) the ratio of Total
Liabilities to Gross Asset Value does not exceed 0.65 to 1.00 at the end of the
fiscal quarter for which such election has been made and the immediately
subsequent fiscal quarter.
(b) Ratio
of EBITDA to Fixed Charges. The Borrower shall not permit, for any period
of four consecutive fiscal quarters, the ratio of (i) EBITDA of the
Borrower and its Subsidiaries determined on a consolidated basis for such
period to (ii) Fixed Charges of the Borrower and its Subsidiaries
determined on a consolidated basis for such period, to be less than 1.50 to
1.00 at the end of such fiscal quarter; provided that such ratio shall
be calculated on a pro forma basis on the assumption that (A) any Indebtedness
incurred by the Borrower or any of its Subsidiaries since the first day of such
four-quarter period and the application of the proceeds therefrom (including to
refinance other Indebtedness since the first day of such four-quarter period)
had occurred on the first day of such period, (B) the repayment or retirement
of any other Indebtedness of the Borrower or any of its Subsidiaries since the
first day of such four-quarter period had occurred on the first day of such
period (except that, in making such computation, the amount of Indebtedness
under any revolving credit facility, line of credit or similar facility shall
be computed based upon the average daily balance of such Indebtedness during
such period), and (C) in the case of any acquisition or disposition by the
Borrower or any Subsidiary of any asset or group of assets since the first day
of such four-quarter period, including, without limitation, by merger, stock
purchase or sale, or asset purchase or sale, such acquisition or disposition
had occurred on the first day of such period with the appropriate adjustments
with respect to such acquisition or disposition being included in such pro
forma calculation; provided that, notwithstanding the foregoing, the
amount of scheduled principal payments (excluding balloon, bullet or similar
payments of principal due upon the stated maturity of Indebtedness) made that
are included in clause (b) of the calculation of Fixed Charges for such period
shall be determined on an actual rather than pro forma basis. If any
Indebtedness incurred after the first day of the relevant four-quarter period
bears interest at a floating rate then, for purposes of calculating the Fixed
Charges, the interest rate on such Indebtedness shall be computed on a pro
forma basis as if the average interest rate which would have been in effect
during the entire such four-quarter period had been the applicable rate for the
entire such period.
(c) Dividends and Other Restricted Payments.
Subject to the following sentence, if an Event of Default exists, the Borrower
shall not, and shall not permit any of its Subsidiaries (other than Wholly
Owned Subsidiaries) to, declare or make, or incur any liability to make,
Restricted Payments during any period of four consecutive fiscal quarters in an
aggregate amount in excess of the greater of (i) the sum of (A) 95%
of Adjusted Funds From Operations of the Borrower and its Subsidiaries
determined on a consolidated basis for such period plus (B) the amount of
cash distributions made to the holders of the Borrower’s Preferred Stock for
such period and (ii) the minimum amount of cash distributions required to
be made by the Borrower to its shareholders to maintain compliance with
Section 8.12. and to avoid the payment of any income or excise taxes
imposed under Sections 857(b)(1), 857(b)(3) or 4981 of the Internal Revenue
Code; provided that the Borrower may repurchase or redeem Preferred
Stock with the net proceeds received by the Borrower from the issuance by the
Borrower of Preferred Stock or common stock. If an Event of Default under
Section 11.1.(a), (e) or (f) shall exist, neither the Borrower nor any
Subsidiary (other than Wholly Owned Subsidiaries) shall directly or indirectly
declare or make, or incur any liability to make, any
Restricted Payments other than Restricted Payments described in the immediately
preceding clause (ii).
(d) Ratio
of Secured Indebtedness to Gross Asset Value. The Borrower shall not permit the ratio of
(i) the aggregate principal amount of Secured Indebtedness of the Borrower
and its Subsidiaries determined on a consolidated basis to (ii) Gross
Asset Value, to exceed 0.40 to 1.00 at any time.
(e) Ratio
of Unsecured Indebtedness to Unencumbered Asset Value. Except as provided
in this subsection (e) below, the
Borrower shall not permit the ratio of (i) the aggregate principal amount
of Unsecured Indebtedness of the Borrower and its Subsidiaries determined on a
consolidated basis to (ii) Unencumbered Asset Value of the Borrower and its Subsidiaries determined
on a consolidated basis, to exceed 0.60 to 1.00 at the end of any fiscal quarter
of the Borrower. For purposes of calculating this ratio, (A) Unsecured Indebtedness shall be adjusted by deducting therefrom an amount equal to the lesser
of (x) unrestricted cash and Cash Equivalents of the Borrower and its
Subsidiaries as of the date of determination in excess of $30,000,000 and
(y) the amount of Unsecured
Indebtedness that matures on or before
the date that is 24 months from the date of the calculation and
(B) Unencumbered Asset Value shall be adjusted by deducting therefrom the
amount by which Unsecured Indebtedness is adjusted under the immediately preceding clause
(A). Notwithstanding the foregoing, the Borrower shall have the option,
exercisable two times during the term of this Agreement, to elect that the
ratio of Unsecured Indebtedness to Unencumbered Asset Value may exceed 0.60 to
1.00 for any fiscal quarter in which the Borrower completes a Material
Acquisition and the immediately subsequent fiscal quarter so long as (1) the
Borrower has delivered a written notice to the Administrative Agent that the
Borrower is exercising its option under this subsection (b) and
(2) the ratio of Unsecured Indebtedness to Unencumbered Asset Value does
not exceed 0.65 to 1.00 at the end of the fiscal quarter for which such
election has been made and the immediately subsequent fiscal quarter.
Section 10.2.
Negative Pledge.
The
Borrower shall not, and shall not permit any other Loan Party or any other Subsidiary
to, (a) create, assume, incur, or permit or suffer to exist any Lien upon any
of the Unencumbered Assets or any direct or indirect ownership interest of the
Borrower in any Subsidiary owning any Unencumbered Asset, other than Permitted
Liens or (b) permit any Unencumbered Asset or any direct or indirect
ownership interest of the Borrower in any Subsidiary owning any Unencumbered
Asset, to become subject to a Negative Pledge if immediately prior to the creation, assumption, incurrence or
existence of such Lien, or Unencumbered Asset or ownership interest becoming
subject to a Negative Pledge, or immediately thereafter, a 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.
Section 10.3.
Restrictions on Intercompany Transfers.
Other
than as expressly set forth in this Agreement, the Borrower shall not, and
shall not permit any other Loan Party or any other Subsidiary (other
than an Excluded Subsidiary) to, create or otherwise cause or suffer to exist
or become effective any consensual encumbrance or restriction of any kind on
the ability of any Subsidiary (other than
an Excluded Subsidiary) to: (a) pay
dividends or make any other distribution on any of such Subsidiary’s capital
stock or other equity interests owned by the Borrower or any other Subsidiary;
(b) pay any Indebtedness owed to the Borrower or any other Subsidiary; (c) make
loans or advances to the Borrower or any other Subsidiary; or (d) transfer
any of its property or assets to the Borrower or any other Subsidiary; other
than (i) with respect to clauses (a) through (d), (1) those encumbrances
or restrictions contained in any Loan Document or existing by reason of
Applicable Law, (2) customary restrictions contained in the organizational
documents of any Subsidiary that is not a Wholly Owned
Subsidiary (but only to the extent applicable to the Equity Interest in such
Subsidiary or the assets of such Subsidiary) and (3) encumbrances or
restrictions contained in any agreement evidencing Unsecured Indebtedness so
long as such encumbrances or restrictions are substantially similar to, or not
more restrictive than, those contained in the Loan Documents or, (ii) with
respect to clause (d), (1) customary provisions restricting assignment of any
agreement entered into by the Borrower, any other Loan Party or any other Subsidiary
in the ordinary course of business, (2) restrictions
on the ability of any Loan Party or any Subsidiary to transfer, directly or
indirectly, Equity Interests (and beneficial interest therein) in any Excluded
Subsidiary pursuant to the terms of any Secured Indebtedness of such Excluded
Subsidiary, (3) customary
restrictions on transfer contained in leases applicable only to the property
subject to such lease, (4) restrictions on transfer contained in any
agreement relating to the transfer, sale, conveyance or other disposition of a
Subsidiary or the assets of a Subsidiary permitted under this Agreement pending
such transfer, sale, conveyance or other disposition; provided that in any such
case, the restrictions apply only to the Subsidiary or the assets that are the
subject of such transfer, sale, conveyance or other disposition,
(5) customary non-assignment provisions or other customary restrictions on
transfer arising under licenses and other contracts entered into in the
ordinary course of business; provided, that such restrictions are limited to
assets subject to such licenses and contracts and (6) restrictions on transfer
contained in any agreement evidencing Secured Indebtedness secured by a Lien on
assets that the Borrower or a Subsidiary may create, incur, assume, or permit
or suffer to exist under this Agreement; provided that in any such case, the
restrictions apply only to the assets that are encumbered by such Lien.
Section 10.4.
Merger, Consolidation, Sales of Assets and Other Arrangements.
(a) The
Borrower shall not, and shall not permit any other Loan Party or any other
Subsidiary to, (i) enter into any transaction of merger or consolidation
or (ii) liquidate, windup or dissolve itself (or suffer any liquidation or
dissolution); provided, however, that, so long as no Default or Event of
Default exists, or would result therefrom, (1) the Borrower may merge with
any of its Subsidiaries or any other Person; provided that the Borrower is the
continuing or surviving Person, (2) any Subsidiary of the Borrower may be
merged or consolidated with or into any other Subsidiary of the Borrower or
another Person; provided that the surviving or continuing Person is a
Subsidiary, and provided further, that (x) if either Subsidiary is a
Wholly Owned Subsidiary of the Borrower, the surviving or continuing Person is
a Wholly Owned Subsidiary of the Borrower and (y) if the Borrower is party
to any such merger or consolidation, the Borrower shall be the surviving or
continuing Person, (3) a Subsidiary of the Borrower may be merged or
consolidated with or into any other Person in connection with a sale or
disposition permitted by Section 10.4.(b) or an Investment permitted by Section
10.4.(c), and (4) any Subsidiary of the Borrower may dissolve, liquidate
or wind up its affairs at any time; provided that such dissolution, liquidation
or winding up, as applicable, would not reasonably be expected to have a
Material Adverse Effect.
(b) The
Borrower shall not, and shall not permit any other Loan Party or any other
Subsidiary to, convey, sell, lease, sublease, transfer or otherwise dispose of,
in one transaction or a series of transactions, all or any substantial part of
its business or assets, or the capital stock of or other Equity Interests in
any of its Subsidiaries, whether now owned or hereafter acquired; provided,
however, that, (i) the Borrower or any Subsidiary may sell, transfer, contribute
or otherwise dispose of any of its assets to the Borrower or to any other
Subsidiary, (ii) any Subsidiary may convey, sell, transfer or otherwise
dispose of, in one transaction or a series of transactions, all or any
substantial part of its business or assets, or the capital stock of or other
Equity Interests in any of its Subsidiaries, and immediately thereafter
liquidate; provided that (x) immediately prior to any such
conveyance, sale, transfer, disposition or liquidation and immediately thereafter
and after giving effect thereto, no Default or Event of Default is or would be
in existence and (y) if the value of the assets to be conveyed, sold,
transferred or otherwise disposed of to a Person other than the Borrower or a
Subsidiary exceeds the Substantial Amount, the
Borrower shall have delivered to the Administrative
Agent and the Lenders (A) at least 10 Business Days’ prior written notice
of such conveyance, sale, transfer,
disposition and (B) a Compliance
Certificate, calculated on a pro forma basis, evidencing the continued
compliance by the Loan Parties with the terms and conditions of this Agreement
and the other Loan Documents, including without limitation, the financial
covenants contained in Section 10.1., after giving effect to such conveyance, sale, transfer, disposition,
(iii) the Borrower and the Subsidiaries may lease and sublease their
respective assets, as lessor or sublessor (as the case may be), in the ordinary
course of business and may sell their respective assets in the ordinary course
of business or because such assets have become damaged, worn, obsolete or
unnecessary or are no longer used or useful in their business, (iv) the
Borrower and the Subsidiaries may convey, sell, transfer or otherwise dispose
of cash and cash equivalents and inventory, fixtures, furnishings and equipment
in the ordinary course of business and (v) the Borrower and the
Subsidiaries may make other conveyances, sales, transfers and other
dispositions so long as immediately prior thereto, and immediately thereafter
and after giving effect thereto, no Default or Event of Default is or would be
in existence, including, without limitation, a Default or Event of Default
resulting from a breach of Section 10.1. and if the value of the assets to
be conveyed, sold, transferred or otherwise disposed of to a Person other than
the Borrower or a Subsidiary exceeds the Substantial Amount, the Borrower shall have delivered to the
Administrative Agent and the Lenders (A) at least 10 Business Days’ prior
written notice of such conveyance, sale,
transfer, disposition and (B) a
Compliance Certificate, calculated on a pro forma basis, evidencing the
continued compliance by the Loan Parties with the terms and conditions of this
Agreement and the other Loan Documents, including without limitation, the
financial covenants contained in Section 10.1., after giving effect to such conveyance, sale, transfer, disposition.
(c) The
Borrower shall not, and shall not permit any other Loan Party or any other
Subsidiary to, engage in a transaction in which the Borrower, any other Loan
Party or any other Subsidiary acquires assets of any other Person for an amount
exceeding the Substantial Amount, or make an Investment in an amount exceeding
the Substantial Amount in any other Person; provided, however, that:
(i) the Borrower, any other Loan Party and any other Subsidiary may,
directly or indirectly, acquire (whether by purchase, acquisition of Equity
Interests of a Person, or as a result of a merger or consolidation) assets for
an amount exceeding the Substantial Amount, or make an Investment in an amount
exceeding the Substantial Amount in, any other Person, so long as
(x) immediately prior thereto, and immediately thereafter and after giving
effect thereto, no Default or Event of Default is or would be in existence,
including, without limitation, a Default or Event of Default resulting from a
breach of Section 10.1. and (y) the
Borrower shall have delivered to the Administrative Agent and the Lenders
(A) at least 10 Business Days’ prior written notice of such acquisition or Investments and (B) a Compliance Certificate, calculated on
a pro forma basis, evidencing the continued compliance by the Loan Parties with
the terms and conditions of this Agreement and the other Loan Documents,
including without limitation, the financial covenants contained in
Section 10.1., after giving effect to such
acquisition or Investment, (ii) the Borrower, any other Loan Party and any
other Subsidiary may make any acquisition or Investment permitted by Section
10.4.(a) above and (iii) the Borrower, any other Loan Party and any other
Subsidiary may make Investments received in respect of transactions permitted
by Section 10.4.(b) above.
Section 10.5.
Plans.
The
Borrower shall not, and shall not permit any other Loan Party or any other
Subsidiary to, permit any of its respective assets to become or be deemed to be
“plan assets” within the meaning of ERISA, the Internal Revenue Code and the
respective regulations promulgated thereunder.
Section 10.6. Fiscal Year.
The
Borrower shall not, and shall not permit any other Loan Party or other
Subsidiary to, change its fiscal year from that in effect as of the Agreement
Date.
Section 10.7.
Modifications of Organizational Documents and Material Contracts.
The
Borrower shall not enter into, and shall not permit any Subsidiary or other Loan
Party to enter into any amendment, supplement, restatement or other
modification or waiver of the application of any provision of its certificate
or articles of incorporation or formation, by-laws, operating agreement,
declaration of trust, partnership agreement, limited liability company
agreement or other applicable organizational document if such amendment,
supplement, restatement or other modification of its certificate or articles of
incorporation, articles of organization, certificate of limited partnership,
declaration of trust or other comparable organizational instrument (if any)
that (a) is adverse to the interest of the Administrative Agent, the
Issuing Banks or the Lenders in any material respect or (b) could
reasonably be expected to have a Material Adverse Effect. The Borrower shall
not enter into, and shall not permit any Subsidiary or other Loan Party to
enter into, any amendment or modification to any Material Contract which could
reasonably be expected to have a Material Adverse Effect.
Section 10.8.
Transactions with Affiliates.
The
Borrower shall not, and shall not permit any other Loan Party or any other
Subsidiary to, 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, except (a) as set forth on Schedule 7.1.(r),
(b) transactions in the ordinary course of and pursuant to the reasonable
requirements of the business of the Borrower, such other Loan Party or such
other Subsidiary and upon fair and reasonable terms which are no less favorable
to the Borrower, such other Loan Party or such other Subsidiary than would be
obtained in a comparable arm’s length transaction with a Person that is not an
Affiliate, (c) payments of compensation, perquisites and fringe benefits
arising out of any employment or consulting relationship in the ordinary course
of business, (d) Restricted Payments not prohibited by Section 10.1.(c),
(e) transactions with Unconsolidated Affiliates relating to the provision
of management services and overhead and similar arrangements in the ordinary
course of business, (f) employment and severance arrangements between the
Borrower or any of its Subsidiaries and their respective officers and employees
in the ordinary course of business and transactions pursuant to stock option
plans and employee benefit plans and arrangements, (g) the payment of
customary fees and reasonable out-of-pocket costs to, and indemnities provided
on behalf of, directors, managers, officers, employees and consultants of the
Borrower and its Subsidiaries in the ordinary course of business to the extent
attributable to the ownership, management or operation of the Borrower and its
Subsidiaries and (h) transactions between or among the Borrower and its
Subsidiaries.
Section 10.9.
Derivatives Contracts.
The Borrower shall not, and shall not permit any other
Loan Party or any other Subsidiary to, enter into or become obligated in
respect of Derivatives Contracts other than Derivatives Contracts entered into
by the Borrower, any such Loan Party or any such Subsidiary in the ordinary
course of business and which establish an effective hedge in respect of
liabilities, commitments or assets held or reasonably anticipated by the
Borrower, such other Loan Party or such other Subsidiary.
Article XI. Default
Section 11.1.
Events of Default.
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 effected by
operation of Applicable Law or pursuant to any judgment or order of any
Governmental Authority:
(a) Default
in Payment. The Borrower or any
other Loan Party shall, under this Agreement or any other Loan Document, fail
to pay (whether upon demand, at maturity, by reason of acceleration or
otherwise), (i) when due, the principal on any of the Loans or any
Reimbursement Obligation or (ii) within 5 days of the date the Borrower or
any other Loan Party has received notice of such failure from the
Administrative Agent, any interest or fees on any of the Loans or other payment
Obligations owing by the Borrower or any other Loan Party under this Agreement,
any other Loan Document or the Fee Letter.
(b) Default in Performance.
(i) Any Loan Party shall fail to
perform or observe any term, covenant, condition or agreement on its part to be
performed or observed and contained in Section 8.1. (solely with respect to the
existence of the Borrower), Section 9.4.(j) or Article X. (excluding
Section 10.8.); 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, and in the case of this subsection (b)(ii) only,
such failure shall continue for a period of 30 days after the earlier of
(x) the date upon which a Responsible Officer of the Borrower or such
other Loan Party obtains knowledge of such failure or (y) the date upon
which the Borrower has received written notice of such failure from the Administrative
Agent.
(c) Misrepresentations.
Any written statement, representation or warranty made or deemed made by or on
behalf of any Loan Party under this Agreement or under any other Loan Document,
or any amendment hereto or thereto, or in any other writing or statement at any
time furnished by, or at the direction of, any Loan Party to the Administrative
Agent, any Issuing Bank or any Lender, shall at any time prove to have been
incorrect or misleading in any material respect when furnished or made or
deemed made.
(d) Indebtedness Cross‑Default.
(i) The Borrower, any other Loan
Party or any other Subsidiary shall fail to pay when due and payable the
principal of, or interest on, any Indebtedness (other than the Loans and
Reimbursement Obligations and any Nonrecourse Indebtedness) having an aggregate
outstanding principal amount (or, in the case of any Derivatives Contract,
having, without regard to the effect of any close-out netting provision, a
Derivatives Termination Value), in each case individually or in the aggregate
with all other Indebtedness (other than any Nonrecourse Indebtedness) as to
which such a failure exists, of $100,000,000 or more (“Material Indebtedness”)
and such failure shall continue beyond any applicable cure periods; or
(ii) (x) The maturity of any
Material 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 Material
Indebtedness or (y) any Material Indebtedness shall have been required to
be prepaid, repurchased, redeemed or defeased prior to the stated maturity
thereof; or
(iii) Any other event shall have
occurred and be continuing which would permit any holder or holders of any
Material Indebtedness, any trustee or agent acting on behalf of such holder or
holders or any other Person, to accelerate the maturity of any such Material
Indebtedness or require any such Material Indebtedness to be prepaid, repurchased,
redeemed or defeased prior to its stated maturity; or
(iv) There occurs an “Event of
Default” under and as defined in any Derivatives Contract constituting Material
Indebtedness as to which the Borrower, any Loan Party or any other Subsidiary
is a “Defaulting Party” (as defined therein), or there occurs an “Early
Termination Date” (as defined therein) in respect of any Specified Derivatives
Contract constituting Material Indebtedness as a result of a “Termination Event”
(as defined therein) as to which the Borrower or any of its Subsidiaries is an “Affected
Party” (as defined therein).
(e) Voluntary
Bankruptcy Proceeding. The Borrower or any one or more Subsidiaries to
which more than 5% of Gross Asset Value is attributable in the aggregate shall:
(i) commence a voluntary case under the Bankruptcy Code 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
(f); (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.
(f) Involuntary
Bankruptcy Proceeding. A case or other proceeding shall be commenced
against the Borrower or any one or more Subsidiaries to which more than 5% of
Gross Asset Value is attributable in the aggregate in any court of competent
jurisdiction seeking: (i) relief under the Bankruptcy Code 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 in the case of either clause (i) or (ii) such
case or proceeding shall continue undismissed or unstayed for a period of 60
consecutive days, or an order granting the remedy or other relief requested in
such case or proceeding (including, but not limited to, an order for relief
under such Bankruptcy Code or such other federal bankruptcy laws) shall be
entered.
(g) Revocation
of Loan Documents. Any Loan Party shall (or shall attempt to) disavow,
revoke or 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 any Loan Document or
any Loan Document shall cease to be in full force and effect (except as a
result of the express terms thereof or the express written agreement of the
parties thereto).
(h) Judgment.
A judgment or order for the payment of money or for an injunction or other
non-monetary relief shall be entered against the Borrower, any other Loan
Party, or any other Subsidiary by any court or other
tribunal and (i) such judgment or order shall continue for a period of 60
days without being paid, stayed or dismissed through appropriate appellate
proceedings and (ii) either (A) the amount of such judgment or order
for which insurance has been denied by the applicable insurance carrier
exceeds, individually or together with all other such judgments or orders
entered against the Borrower, any other Loan Party or any other Subsidiary, $50,000,000
or (B) in the case of an injunction or other non-monetary relief, such injunction
or judgment or order could reasonably be expected to have a Material Adverse
Effect.
(i) Attachment.
A warrant, writ of attachment, execution or similar process shall be issued
against any property of the Borrower, any other Loan Party or any other Subsidiary,
which exceeds, individually or together with all other such warrants, writs,
executions and processes, $50,000,000 in amount and such warrant, writ,
execution or process shall not be paid, discharged, vacated, stayed or bonded
for a period of 60 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 the Borrower, any other Loan
Party or any other Subsidiary.
(j) ERISA.
(i) Any ERISA Event shall have
occurred that results or could reasonably be expected to result in liability to
any Loan Party aggregating in excess of $50,000,000; or
(ii) The “benefit obligation” of
all Plans exceeds the “fair market value of plan assets” for such Plans by more
than $50,000,000, all as determined, and with such terms defined, in accordance
with FASB ASC 715.
(k) Loan Documents. An Event
of Default (as defined therein) shall occur under any of the other Loan
Documents.
(l) Change of Control.
(i) 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”)), is or becomes the “beneficial owner”
(as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a
Person will be deemed to have “beneficial ownership” of all securities that
such Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of more
than 50.0% of the total voting power of the then outstanding voting stock of
the Borrower; or
(ii) During any period of 12
consecutive months ending after the Agreement Date, individuals who at the
beginning of any such 12‑month period constituted the Board of Directors
of the Borrower (together with any new directors whose election by such Board
or whose nomination for election by the shareholders of the Borrower was
approved by a vote of a majority of the directors then still in office who were
either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the Board of Directors of the Borrower then in office.
(m) Damage;
Strike; Casualty. Any material damage to, or loss, theft or destruction
of, any Property, whether or not insured, or any strike, lockout, labor
dispute, embargo, condemnation, act of God or public
enemy, or other casualty which causes, for more than 30 consecutive days beyond
the coverage period of any applicable business interruption insurance, the
cessation or substantial curtailment of revenue producing activities of the
Borrower and its Subsidiaries, taken as a whole, and only if any such event or
circumstance could reasonably be expected to have a Material Adverse Effect.
Section 11.2.
Remedies Upon Event of Default.
During the existence 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 Sections 11.1.(e) or 11.1.(f),
(1)(A) the principal of, and all accrued interest on, the Loans and the Notes
at the time outstanding, (B) 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 Letter of Credit Collateral Account and
(C) all of the other Obligations, 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 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 on behalf
of itself and the other Loan Parties, and (2) the Commitments and the
Swingline Commitment and the obligation of the Issuing Banks to issue Letters
of Credit hereunder, shall all immediately and automatically terminate.
(ii) Optional. If any other
Event of Default shall exist, the Administrative Agent may, and at the
direction of the Requisite Lenders shall: (1) declare (A) the
principal of, and accrued interest on, the Loans and the Notes at the time outstanding,
(B) 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 Letter of Credit Collateral Account and (C) all of the
other Obligations, 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
on behalf of itself and the other Loan Parties, and (2) terminate the
Commitments and the Swingline Commitment and the obligation of the Issuing Banks
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.
(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 the Borrower 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 Unencumbered Assets and/or the business
operations of the Borrower and its Subsidiaries and to exercise such power as
the court shall confer upon such receiver.
(e) Rescission of Acceleration
by Requisite Lenders. If at any time after acceleration of the maturity of
the Loans and the other Obligations, the Borrower shall pay all arrears of
interest and all payments on account of principal of the Obligations which
shall have become due otherwise than by acceleration (with interest on
principal and, to the extent permitted by Applicable Law, on overdue interest,
at the rates specified in this Agreement) and all Events of Default and
Defaults (other than nonpayment of principal of and accrued interest on the
Obligations due and payable solely by virtue of acceleration) shall become
remedied or waived to the satisfaction of the Requisite Lenders, then by
written notice to the Borrower, the Requisite Lenders may elect, in the sole
discretion of such Requisite Lenders, to rescind and annul the acceleration and
its consequences. The provisions of the preceding sentence are intended merely
to bind all of the Lenders to a decision which may be made at the election of
the Requisite Lenders, and are not intended to benefit the Borrower and do not
give the Borrower the right to require the Lenders to rescind or annul any
acceleration hereunder, even if the conditions set forth herein are satisfied.
Section 11.3.
[Reserved].
Section 11.4.
Marshaling; Payments Set Aside.
No
Lender Party 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
Guaranteed Obligations. To the extent that any Loan Party makes a payment or
payments to a Lender Party, or a Lender Party enforces its security interest or
exercises its right 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 and/or required to be
repaid to a trustee, receiver or any other party under any bankruptcy law,
state or federal law, common law or equitable cause, then to the extent of such
recovery, the Guaranteed 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.
Section 11.5.
Allocation of Proceeds.
If
an Event of Default exists, all payments received by the Administrative Agent
(or any Lender as a result of its exercise of remedies permitted under
Section 13.3.) under any of the Loan Documents in respect of any Guaranteed
Obligations shall be applied in the following order and priority:
(a) to payment of that portion of the
Guaranteed Obligations constituting fees, indemnities, expenses and other
amounts, including attorney fees, payable to the Administrative Agent in its
capacity as such, each Issuing Bank in its capacity as such and the Swingline
Lender in its capacity as such, ratably among the Administrative Agent, the
Issuing Banks and Swingline Lender in proportion to the respective amounts
described in this clause (a) payable to them;
(b) to payment of that portion of the
Guaranteed Obligations constituting fees, indemnities and other amounts (other
than principal and interest) payable to the Lenders under the Loan Documents,
including attorney fees, ratably among the Lenders in proportion to the
respective amounts described in this clause (b) payable to them;
(c) to payment of that portion of the
Guaranteed Obligations constituting accrued and unpaid interest on the
Swingline Loans;
(d) to payment of that portion of the
Guaranteed Obligations constituting accrued and unpaid interest on the Loans
and Reimbursement Obligations, ratably among the Lenders and the Issuing Banks in proportion to the respective
amounts described in this clause (d) payable to them;
(e) to payment of that portion of the
Guaranteed Obligations constituting unpaid principal of the Swingline Loans;
(f) to payment of that portion of the
Guaranteed Obligations constituting unpaid principal of the Loans,
Reimbursement Obligations, other Letter of Credit Liabilities and payment
obligations then owing under Specified Derivatives Contracts, ratably among the
Lenders, the Issuing Banks, the Specified Derivatives Providers in proportion
to the respective amounts described in this clause (f) payable to them;
provided, however, to the extent that any amounts available for distribution
pursuant to this clause 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 Letter of Credit Collateral Account; and
(g) the balance, if any, after all of the
Guaranteed Obligations have been indefeasibly paid in full, to the Borrower or
as otherwise required by Applicable Law.
Notwithstanding
the foregoing, Guaranteed Obligations arising under Specified Derivatives Contracts
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, as the case may be. Each Specified Derivatives
Provider not a party to this 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. for itself and its Affiliates as if a “Lender” party
hereto.
Section 11.6.
Letter of Credit Collateral Account.
(a) As
collateral security for the prompt payment in full when due of all Letter of
Credit Liabilities and the other Obligations, the Borrower hereby pledges and
grants to the Administrative Agent, for the ratable benefit of the Administrative
Agent, the Issuing Banks and the Lenders as provided herein, a security
interest in all of its right, title and interest in and to the Letter of Credit
Collateral Account and the balances from time to time in the Letter of Credit
Collateral Account (including the investments and reinvestments therein
provided for below). The balances from time to time in the Letter of Credit
Collateral Account shall not constitute payment of any Letter of Credit
Liabilities until applied by the applicable Issuing Bank as provided herein.
Anything in this Agreement to the contrary notwithstanding, funds held in the
Letter of Credit Collateral Account shall be subject to withdrawal only as
provided in this Section.
(b) Amounts
on deposit in the Letter of Credit Collateral Account 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
Administrative Agent, the Issuing Banks and the Revolving Lenders; provided,
that all earnings on such investments will be credited to and retained in the
Letter of Credit Collateral Account. The Administrative Agent shall exercise
reasonable care in the custody and preservation of any funds held in the Letter
of Credit Collateral Account 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 Letter of Credit Collateral
Account.
(c) If
a drawing pursuant to any Letter of Credit occurs on or prior to the expiration
date of such Letter of Credit, the Borrower and the Lenders authorize the
Administrative Agent to use the monies deposited in the Letter of Credit
Collateral Account to reimburse the applicable Issuing Bank for the payment
made by such Issuing Bank to the beneficiary with respect to such drawing.
(d) If
an Event of Default exists, the Administrative Agent may (and, if instructed by
the Requisite Lenders, shall) in its (or their) discretion at any time and from
time to time elect to liquidate any such investments and reinvestments and
apply the proceeds thereof to the Obligations in accordance with Section 11.5.
Notwithstanding the foregoing, the Administrative Agent shall not be required
to liquidate and release any such amounts if such liquidation or release would
result in the amount available in the Letter of Credit Collateral Account being
less than the Stated Amount of all Extended Letters of Credit that remain
outstanding.
(e) So
long as no Default or Event of Default exists, and to the extent amounts on
deposit in or credited to the Letter of Credit Collateral Account exceed the
aggregate amount of the Letter of Credit Liabilities then due and owing, the Administrative
Agent shall, from time to time, at the written request of the Borrower, deliver
to the Borrower within 5 Business Days after the Administrative Agent’s receipt
of such request from the Borrower, against receipt but without any recourse,
warranty or representation whatsoever, such amount of the credit balances in
the Letter of Credit Collateral Account as exceeds the aggregate amount of
Letter of Credit Liabilities at such time. Upon
the expiration, termination or cancellation of an Extended Letter of Credit for
which the Lenders reimbursed (or funded participations in) a drawing deemed to
have occurred under the fourth sentence of Section 2.4.(b) for deposit
into the Letter of Credit Collateral Account but in respect of which the
Lenders have not otherwise received payment for the amount so reimbursed or
funded, the Administrative Agent shall promptly remit to the Lenders the amount
so reimbursed or funded for such Extended Letter of Credit that remains in the
Letter of Credit Collateral Account, pro rata in accordance with the respective
unpaid reimbursements or funded participations of the Lenders in respect of
such Extended Letter of Credit, against receipt but without any recourse,
warranty or representation whatsoever. When
all of the Obligations shall have been indefeasibly paid in full and no Letters
of Credit remain outstanding, the Administrative Agent shall deliver to the
Borrower, against receipt but without any recourse, warranty or representation
whatsoever, the balances remaining in the Letter of Credit Collateral Account.
(f) 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 Letter of Credit
Collateral Account and investments and reinvestments of funds therein.
Section 11.7.
Performance by Administrative Agent.
If
the Borrower or any other 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 the Borrower or such other 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.
Section 11.8.
Rights Cumulative.
(a) Generally.
The rights and remedies of the Administrative Agent, the Issuing Banks and the
Lenders under this Agreement and 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, the Issuing Banks and the Lenders may be
selective and no failure or delay by any such Lender Party 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.
(b) Enforcement
by Administrative Agent. Notwithstanding anything to the contrary
contained herein or in any other Loan Document, the authority to enforce rights
and remedies hereunder and under the other Loan Documents against the Loan
Parties or any of them shall be vested exclusively in, and all actions and
proceedings at law in connection with such enforcement shall be instituted and
maintained exclusively by, the Administrative Agent in accordance with
Article XI. for the benefit of all the Lenders and the Issuing Banks; provided
that the foregoing shall not prohibit (i) the Administrative Agent from
exercising on its own behalf the rights and remedies that inure to its benefit
(solely in its capacity as Administrative Agent) hereunder and under the other
Loan Documents, (ii) any Issuing Bank or the Swingline Lender from
exercising the rights and remedies that inure to its benefit (solely in its
capacity as an Issuing Bank or Swingline Lender, as the case may be) hereunder
or under the other Loan Documents, (iii) any Lender from exercising setoff
rights in accordance with Section 13.3. (subject to the terms of
Section 3.3.), or (iv) any Lender from filing proofs of claim or
appearing and filing pleadings on its own behalf during the pendency of a
proceeding relative to any Loan Party under any Debtor Relief Law; and provided,
further, that if at any time there is no Person acting as Administrative
Agent hereunder and under the other Loan Documents, then (x) the Requisite
Lenders shall have the rights otherwise ascribed to the Administrative Agent
pursuant to Article XI. and (y) in addition to the matters set forth in
clauses (ii) and (iv) of the preceding proviso and subject to Section 3.3.,
any Lender may, with the consent of the Requisite Lenders, enforce any rights
and remedies available to it and as authorized by the Requisite Lenders.
Article XII. The Administrative Agent
Section 12.1.
Appointment and Authorization.
Each
Lender hereby irrevocably 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. Not in
limitation of the foregoing, each Lender authorizes and directs the Administrative
Agent to enter into the Loan Documents (other than this Agreement) for the
benefit of the Lenders. 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 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 “Agent”,
“Administrative Agent”, “agent” and similar terms in the Loan Documents with reference
to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency
doctrine of any Applicable Law. Instead, use of such terms is merely a matter
of market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties. The Administrative Agent
shall deliver or otherwise make available to each Lender, promptly upon receipt
thereof by the Administrative Agent, copies of each of the financial
statements, certificates, notices and other documents delivered to the Administrative
Agent pursuant to Article IX. that the Borrower is not otherwise required
to deliver directly to the Lenders. The Administrative Agent will furnish to
any Lender, upon the request of such Lender, a copy (or, where appropriate, an
original) of any document, instrument, agreement, certificate or notice
furnished to the Administrative Agent by the Borrower, any other Loan Party or
any other Affiliate of the Borrower, pursuant to this Agreement or any other
Loan Document not already delivered or otherwise made available to such Lender
pursuant to the terms of this Agreement or any such other Loan Document. 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.
Section 12.2.
Administrative Agent’s Reliance.
Notwithstanding any other provisions of this
Agreement or any other Loan Documents, neither the Administrative Agent nor any
of its Related Parties shall be liable for any action taken or not taken by it
under or in connection with this Agreement or any other Loan Document, except
for its or their own gross negligence or willful misconduct in connection with
its duties expressly set forth herein or therein as determined by a court of
competent jurisdiction in a final non-appealable judgment. Without limiting
the generality of the foregoing, the Administrative Agent may consult with
legal counsel (including its own counsel or counsel for the Borrower or any
other 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. Neither the Administrative Agent nor any of its Related Parties:
(a) makes any warranty or representation to any Lender, any Issuing Bank
or any other Person, or shall be responsible to any Lender, any Issuing Bank or
any other Person for any statement, warranty or representation made or deemed
made by the Borrower, any other Loan Party or any other Person in or in
connection with this Agreement or any other Loan Document; (b) shall have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of this Agreement or any other Loan Document
or the satisfaction of any conditions precedent under this Agreement or any
Loan Document on the part of the Borrower or other Persons, or to inspect the
property, books or records of the Borrower or any other Person; (c) shall
be responsible to any Lender or any Issuing Bank 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
Lender Parties in any such collateral; (d) shall have any liability in respect
of any recitals, statements, certifications, representations or warranties
contained in any of the Loan Documents or any other
document, instrument, agreement, certificate or statement delivered in
connection therewith; and (e) shall incur any liability under or in respect of
this Agreement or any other Loan Document by acting upon any notice, consent,
certificate or other instrument or writing (which may be by telephone, 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 and shall not be responsible for the negligence or misconduct
of any agent or attorney-in-fact that it selects in the absence of gross
negligence or willful misconduct in the selection of such agent or
attorney-in-fact as determined by a court of competent jurisdiction in a final
non-appealable judgment.
Section 12.3.
Notice of Events of Default.
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 the Borrower 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”; provided, a Lender’s failure to provide such
a “notice of default” to the Administrative Agent shall not result in any
liability of such Lender to any other party to any of the Loan Documents.
Further, if the Administrative Agent receives such a “notice of default,” the
Administrative Agent shall give prompt notice thereof to the Lenders.
Section 12.4.
Administrative Agent as Lender.
The
Lender acting as Administrative Agent shall have the same rights and powers as
a Lender or a Specified Derivatives Provider, as the case may be, under this
Agreement, any other Loan Document, or any Specified Derivatives Contract as
the case may be, as any other Lender or Specified Derivatives Provider 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
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 the Borrower, any other Loan Party or any other Affiliate thereof as if it
were any other bank and without any duty to account therefor to the Issuing Banks,
the other Lenders or any Specified Derivatives Providers. Further, the Administrative
Agent and any Affiliate may accept fees and other consideration from the
Borrower, any other Loan Party or any other Subsidiary for services in
connection with this Agreement or any Specified Derivatives Contract, or otherwise
without having to account for the same to the Issuing Banks, the other Lenders
or any Specified Derivatives Providers. The Issuing Banks and the Lenders
acknowledge that, pursuant to such activities, the Lender acting as
Administrative Agent or its Affiliates may receive information regarding the
Borrower, other Loan Parties, other Subsidiaries and other Affiliates
(including information that may be subject to confidentiality obligations in
favor of such Person) and acknowledge that the Administrative Agent shall be
under no obligation to provide such information to them.
Section 12.5.
Approvals of Lenders.
All
communications from the Administrative Agent to any Lender requesting such
Lender’s determination, consent or approval (a) shall be given in the form
of a written notice to such Lender, (b) shall be accompanied by a
description of the matter or issue as to which such determination, consent or
approval is requested, or shall advise such Lender where information, if any,
regarding such matter or issue may be inspected, or shall otherwise describe
the matter or issue to be resolved and (c) shall include, if reasonably requested by such Lender and to the extent
not previously provided to such Lender, written materials provided to the Administrative
Agent by the Borrower in respect of the matter or issue to be resolved. Unless
a Lender shall give written notice to the Administrative Agent that it
specifically objects to the requested determination, consent or approval within
10 Business Days (or such lesser or greater period as may be specifically
required under the express terms of the Loan Documents) of receipt of such
communication, such Lender shall be deemed to have conclusively approved such
requested determination, consent or approval. The provisions of this Section
shall not apply to any amendment, waiver or consent regarding any of the
matters described in Section 13.6.(b).
Section 12.6.
Indemnification of Administrative Agent.
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 Pro Rata Share
(determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits and reasonable
out-of-pocket costs and expenses 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; provided, further, however, that
no action taken in accordance with the directions of the Requisite Lenders (or
all of the Lenders, if expressly required hereunder) shall be deemed to
constitute gross negligence or willful misconduct for purposes of this
Section. Without limiting the generality of the foregoing, 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 Pro Rata Share (determined as of the time that the
applicable reimbursement is sought) of any out‑of‑pocket expenses
(including the reasonable fees and expenses of the counsel to the Administrative
Agent) incurred by the Administrative Agent in connection with the preparation,
negotiation, execution, administration, or enforcement (whether through
negotiations, legal proceedings, or otherwise) 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 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 Obligations 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.
Section 12.7.
Lender Credit Decision, Etc.
Each
of the Lenders and each Issuing Bank expressly acknowledges and agrees that
neither the Administrative Agent nor any of its Related Parties has made any
representations or warranties to such Issuing Bank or
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 or Affiliate, shall be deemed to constitute any such
representation or warranty by the Administrative Agent to any Issuing Bank or any
Lender. Each of the Lenders and each Issuing Bank 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 Related Parties, and based on the financial
statements of the Borrower, the other Loan Parties, the other Subsidiaries and
other Affiliates, and inquiries of such Persons, its independent due diligence
of the business and affairs of the Borrower, the other Loan Parties, the other
Subsidiaries and other Persons, its review of the Loan Documents, the legal
opinions required to be delivered to it hereunder, the advice of its own
counsel and such other documents and information as it has deemed appropriate.
Each of the Lenders and each Issuing Bank 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 Related
Parties, 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 Subsidiary. Except for notices, reports and other documents
and information expressly required to be furnished to the Lenders and the
Issuing Banks 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 or any Issuing Bank 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 Related Parties. Each of the Lenders and each Issuing Bank
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 any Lender or any Issuing
Bank.
Section 12.8.
Successor Administrative Agent.
The
Administrative Agent may resign at any time as Administrative Agent under the
Loan Documents by giving written notice thereof to the Lenders and the
Borrower. The Administrative Agent may be removed as administrative agent by
the Required Lenders (excluding for such purpose Loans and Commitments held by
the Lender then acting as Administrative Agent) upon 30 days’ prior written
notice if the Administrative Agent (i) is found by a court of competent
jurisdiction in a final, non-appealable judgment to have committed gross
negligence or willful misconduct in the course of performing its duties
hereunder or (ii) the Lender then acting as Administrative Agent has
become a Defaulting Lender under clause (d) of the definition of that term. Upon
any such resignation or removal, the Requisite Lenders shall have the right to
appoint a successor Administrative Agent which appointment shall, provided no Event
of Default exists, be subject to the Borrower’s approval, which approval shall
not be unreasonably withheld or delayed. If no successor Administrative Agent
shall have been so appointed in accordance with the immediately preceding
sentence, and shall have accepted such appointment, within 30 days after the current
Administrative Agent’s giving of notice of resignation or having been removed,
then, in the case of resignation by the Administrative Agent, the current Administrative
Agent may, or in the case of removal of the Administrative Agent, the Requisite
Lenders may, on behalf of the Lenders and the Issuing Banks, 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 and in any case
shall have an office in the United States; provided that if no Lender
has accepted such appointment, then such resignation or removal shall
nonetheless become effective in accordance with such notice and (1) the
Administrative Agent shall be discharged from its
duties and obligations hereunder and under the other Loan Documents and (2) all
payments, communications and determinations provided to be made by, to or
through the Administrative Agent shall instead be made to each Lender and each Issuing
Bank directly, until such time as a successor Administrative Agent has been
appointed as provided for above in this Section; provided, further that such
Lenders and such Issuing Banks so acting directly shall be and be deemed to be
protected when so acting in such capacity by all indemnities and other
provisions herein for the benefit and protection of the Administrative Agent as
if each such Lender or Issuing Bank were itself the Administrative Agent. 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 current Administrative Agent, and the current Administrative
Agent shall be discharged from its duties and obligations under the Loan
Documents. Any resignation by or removal of an Administrative Agent shall also
constitute the resignation as an Issuing Bank and as the Swingline Lender by
the Lender then acting as Administrative Agent (the “Resigning Lender”). Upon
the acceptance of a successor’s appointment as Administrative Agent hereunder
(i) the Resigning Lender shall be discharged from all duties and
obligations of an Issuing Bank and the Swingline Lender hereunder and under the
other Loan Documents and (ii) any successor Issuing Bank shall issue
letters of credit in substitution for all Letters of Credit issued by the
Resigning Lender as Issuing Banks outstanding at the time of such succession
(which letters of credit issued in substitutions shall be deemed to be Letters
of Credit issued hereunder) or make other arrangements satisfactory to the
Resigning Lender to effectively assume the obligations of the Resigning Lender
with respect to such Letters of Credit. After any Administrative Agent’s
resignation or removal hereunder as Administrative Agent, the provisions of
this Article XII. shall continue to inure to its benefit as to any actions
taken or omitted to be taken by it while it 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.
Section 12.9.
Titled Agents.
Each
of the Lead Arrangers, the Syndication Agents, and the Documentation Agents (each
a “Titled Agent”) in each such respective capacity, assumes no responsibility
or obligation hereunder, including, without limitation, for servicing,
enforcement or collection of any of the Loans, nor any duties as an agent
hereunder for the Lenders. The titles given to the Titled Agents are solely
honorific and imply no fiduciary responsibility on the part of the Titled Agents
to the Administrative Agent, any Lender, any Issuing Bank, the Borrower or any
other Loan Party and the use of such titles does not impose on the Titled Agents
any duties or obligations greater than those of any other Lender or entitle the
Titled Agents to any rights other than those to which any other Lender is
entitled.
Section 12.10. Specified Derivatives Contracts.
No
Specified Derivatives Provider that obtains the benefits of Section 11.5.
by virtue of the provisions hereof or of any Loan 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 any Loan
Document 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 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 Contracts unless the
Administrative Agent has received written notice of such Specified Derivatives
Contracts, together with such supporting documentation as the Administrative
Agent may request, from the applicable Specified Derivatives Provider.
Article XIII.
Miscellaneous
Section 13.1.
Notices.
Unless
otherwise provided herein (including without limitation as provided in
Section 9.5.), communications provided for hereunder shall be in writing
and shall be mailed, telecopied, or delivered as follows:
If to the Borrower:
Realty Income Corporation
11995 El Camino Real
San Diego, California 92130
Attention: Michael R. Pfeiffer, General
Counsel
Telephone Number: (858) 284-5161
If to the Administrative Agent:
Wells Fargo Bank, National Association
608 Second Avenue South, 11th
Floor
Minneapolis, MN 55402
Attn: Kirby Wilson
Telecopier: (866) 595-7863
Telephone: (612) 667-6009
with a copy to
Wells Fargo Bank, National Association
401 B Street, Suite 1100
San Diego, California 92101
Attn: Dale Northup
Telecopier: (619) 699-3105
Telephone: (619) 699-3025
If
to the Administrative Agent under Article II.:
Wells Fargo Bank, National Association
Minneapolis Loan Center
MAC N9303-110
608 Second Avenue S., 11th Floor
Minneapolis, Minnesota 55402-1916
Attn: Kirby Wilson
Telecopier: (866) 595-7863
Telephone: (612) 667-6009
If to Wells Fargo, as an Issuing Bank:
Wells Fargo Bank, National Association
401 B Street, Suite 1100
San Diego, California 92101
Attn: Dale Northup
Telecopier: (619)
699-3105
Telephone: (619) 699-3025
If to Bank of America, N.A., as an Issuing Bank:
Bank of America, N.A.
Global Trade Operations
One Fleet Way, 2nd Floor
Mail Code PA6-580-02-30
Scranton, PA 18507
Telecopier: 1-800-755-8743
Telephone: 1-800-370-7519 and choose Trade product
opt. #1
Email Address: scranton_standby_lc@bankofamerica.com
If to Royal Bank of Canada, as an Issuing Bank:
Royal Bank of Canada
200 Vesey St., 5th Floor
New York, NY 10281-8098
Attention: Credit
Administration
Telecopier: (212) 428-3015
Telephone: (212) 428-6235
If
to any other Lender:
To such Lender’s address or telecopy number as set
forth in the applicable Administrative Questionnaire
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 or an Issuing Bank 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, upon the first to occur of receipt or the expiration of 3 days after
the deposit in the United States Postal Service mail, postage prepaid and
addressed to the address of the Borrower or the Administrative Agent, the
Issuing Banks and Lenders at the addresses specified; (ii) if telecopied,
when transmitted; (iii) if hand delivered or sent by overnight courier,
when delivered; or (iv) if delivered in accordance with Section 9.5. to
the extent applicable; provided, however, that, in the case of the immediately
preceding clauses (i), (ii) and (iii), non-receipt of any communication as of
the result of any change of address of which the sending party was not notified
or as the result of a refusal to accept delivery shall be deemed receipt of
such communication. Notwithstanding the immediately preceding sentence, all
notices or communications to the Administrative Agent, any Issuing Bank or any
Lender under Article II. shall be effective only when actually received.
None of the Administrative Agent, any Issuing Bank or any Lender shall incur
any liability to any Loan Party (nor shall the Administrative Agent incur any
liability to the Issuing Banks or the Lenders) for acting upon any telephonic
notice referred to in this Agreement which the Administrative Agent, such Issuing
Bank or such Lender, as the case may be, believes in good faith to have been
given by a Person authorized to deliver such notice or for otherwise acting in
good faith hereunder. 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
another Person.
Section 13.2. Expenses.
The
Borrower agrees (a) to pay or reimburse the Administrative Agent and the
Lead Arrangers for all of their respective reasonable and documented out-of-pocket
costs and expenses incurred in connection with the preparation, negotiation and
execution of, and any amendment, supplement or modification to, any of the Loan
Documents (including due diligence expenses and reasonable travel expenses
related to closing), and the consummation of the transactions contemplated
hereby and thereby, including the reasonable fees and disbursements of one
primary counsel to the Administrative Agent and the Lead Arrangers, taken as a
whole, and one local counsel for the Administrative Agent and the Lead
Arrangers, taken as a whole, in each relevant jurisdiction and with respect to
each relevant specialty, and all costs and expenses of the Administrative Agent
in connection with the use of IntraLinks, SyndTrak or other similar information
transmission systems in connection with the Loan Documents and of the
Administrative Agent in connection with the review of Properties for inclusion
in calculations of the Unencumbered Asset Value and the Administrative Agent’s
other activities under Article IV. and the reasonable and documented fees
and disbursements of one primary counsel, and one local counsel in each
relevant jurisdiction and with respect to each relevant specialty, to the
Administrative Agent relating to all such activities, (b) to pay or
reimburse the Administrative Agent, the Issuing Banks and the Lenders for all their
reasonable and documented costs and expenses incurred in connection with the
enforcement or preservation of any rights under the Loan Documents, limited in
the case of counsel to the reasonable fees and disbursements of one primary
counsel to the Administrative Agent, the Issuing Banks and the Lenders, taken
as a whole, and, if necessary, one local counsel to the Administrative Agent,
the Issuing Banks and the Lenders, taken as a whole, in each relevant
jurisdiction and with respect to each relevant specialty (and, in the case of
an actual or perceived conflict of interest among the Administrative Agent, the
Issuing Banks and the Lenders, one additional primary counsel, and one local
counsel in each relevant jurisdiction and with respect to each relevant specialty,
to each group of similarly situated affected parties) and any payments in
indemnification or otherwise payable by the Lenders to the Administrative Agent
pursuant to the Loan Documents, (c) to pay, and indemnify and hold
harmless the Administrative Agent, the Issuing Banks and the Lenders from, any
and all recording and filing fees and any and all liabilities with respect to,
or resulting from any failure to pay or delay in paying, documentary, stamp,
excise and other similar taxes, if any, 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 (d) to
the extent not already covered by any of the preceding subsections, to pay or
reimburse the reasonable and documented fees and disbursements of counsel to
the Administrative Agent, any Issuing Bank and any Lender (limited to the
reasonable fees and disbursements of one primary counsel to the Administrative
Agent, the Issuing Banks and the Lenders, taken as a whole, and, if necessary,
one local counsel to the Administrative Agent, the Issuing Banks and the
Lenders, taken as a whole, in each relevant jurisdiction and with respect to
each relevant specialty (and, in the case of an actual or perceived conflict of
interest among the Administrative Agent, the Issuing Banks and the Lenders, one
additional primary counsel, and one local counsel in each relevant jurisdiction
and with respect to each relevant specialty, to each group of similarly
situated affected parties)) incurred in connection with the representation of
the Administrative Agent, such Issuing Bank or such Lender in any matter
relating to or arising out of any bankruptcy or other proceeding of the type
described in Sections 11.1.(e) or 11.1.(f), 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 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, the Administrative Agent and/or the Lenders may pay such amounts on behalf of the Borrower
and such amounts shall be deemed to be Obligations owing hereunder.
Section 13.3.
Setoff.
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, each Issuing Bank, each
Lender, each Affiliate of the Administrative Agent, any Issuing Bank or any
Lender, and each Participant, at any time while an Event of Default exists,
without notice to the Borrower or to any other Person, any such notice being
hereby expressly waived, but in the case of an Issuing Bank, a Lender, an
Affiliate of an Issuing Bank or a Lender, or a Participant, subject to receipt
of the prior written consent of the Requisite Lenders exercised in their 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 Issuing
Bank, such Lender, any Affiliate of the Administrative Agent, such Issuing Bank
or such Lender, or such Participant, 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. Notwithstanding anything to the contrary in this Section, if any
Defaulting Lender shall exercise any such right of setoff, (x) all amounts
so set off shall be paid over immediately to the Administrative Agent for
further application in accordance with the provisions of Section 3.9. and,
pending such payment, shall be segregated by such Defaulting Lender from its
other funds and deemed held in trust for the benefit of the Administrative
Agent, the Issuing Banks and the Lenders and (y) such Defaulting Lender
shall provide promptly to the Administrative Agent a statement describing in
reasonable detail the Obligations owing to such Defaulting Lender as to which
it exercised such right of setoff.
Section 13.4.
Litigation; Jurisdiction; Other Matters; Waivers.
(a) EACH
PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN OR AMONG THE
BORROWER, THE ADMINISTRATIVE AGENT, ANY ISSUING BANK 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, EACH ISSUING
BANK AND THE BORROWER 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
OR ANY OTHER LOAN DOCUMENT OR BY REASON OF ANY OTHER SUIT, CAUSE OF ACTION OR
DISPUTE WHATSOEVER BETWEEN OR AMONG THE BORROWER, THE ADMINISTRATIVE AGENT, ANY
ISSUING BANK OR ANY OF THE LENDERS OF ANY KIND OR NATURE RELATING TO ANY OF THE
LOAN DOCUMENTS.
(b) THE
BORROWER IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY
ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR
EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE ADMINISTRATIVE
AGENT, ANY LENDER, ANY ISSUING BANK, OR ANY RELATED PARTY OF THE FOREGOING IN
ANY WAY RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF
THE STATE OF CALIFORNIA SITTING IN SAN FRANCISCO, AND
OF THE UNITED STATES DISTRICT COURT OF THE NORTHERN DISTRICT OF CALIFORNIA, AND
ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND
AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN SUCH CALIFORNIA STATE COURT OR, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES
HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE
ADMINISTRATIVE AGENT, ANY LENDER OR ANY ISSUING BANK MAY OTHERWISE HAVE TO
BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE
COURTS OF ANY JURISDICTION. EACH PARTY 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 THE ADMINISTRATIVE AGENT, ANY ISSUING BANK OR ANY LENDER OR THE
ENFORCEMENT BY THE ADMINISTRATIVE AGENT, ANY ISSUING BANK OR ANY LENDER 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, EXPIRATION OR CANCELLATION OF
ALL LETTERS OF CREDIT AND THE TERMINATION OF THIS AGREEMENT.
(d) If,
in any action or proceeding filed in a court of the State of California by or
against any party hereto in connection with any of the transactions
contemplated by this Agreement or any other Loan Document, the waiver of jury
trial set forth in Section 13.4.(a) is unenforceable, (i) the court must, and is
hereby directed to, make a general reference pursuant to California Code of
Civil Procedure Section 638 to a referee (who must be a single active or
retired judge) to hear and determine all of the issues in such action or
proceeding (whether of fact or of law) and to report a statement of decision,
provided that, at the option of any party to such proceeding, any such issues
pertaining to a “provisional remedy” as defined in California Code of Civil
Procedure Section 1281.8 may be heard and determined by the court, and (ii)
without limiting the generality of Section 13.2., the Borrower will be
solely responsible to pay all fees and expenses of any referee appointed in
such action or proceeding.
Section 13.5.
Successors and Assigns.
(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 the Borrower may not
assign or otherwise transfer any of its rights or obligations hereunder or
under any other Loan Document 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 Eligible Assignee in accordance
with the provisions of the immediately following
subsection (b), (ii) by way of participation in accordance with the
provisions of the immediately following subsection (d) or (iii) by
way of pledge or assignment of a security interest subject to the restrictions
of the immediately following subsection (e) (and, subject to the last
sentence of the immediately following subsection (b), 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 the immediately
following subsection (d) and, to the extent expressly contemplated hereby,
the Related Parties of the Administrative Agent and the Lenders) 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 Eligible 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:
(i) Minimum
Amounts.
(A) in the case of an assignment of
the entire remaining amount of an assigning Revolving Lender’s Revolving
Commitment and/or the Revolving Loans at the time owing to it, or
contemporaneous assignments to related Approved Funds that equal at least the
amount specified in the immediately following clause (B) in the aggregate,
or, if applicable, in the case of an assignment of the entire remaining amount
of an assigning Term Loan Lender’s Term Loan Commitment and/or the Term Loans
at the time owing to it, 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 the
immediately preceding subsection (A), the aggregate amount of the Commitment
(which for this purpose includes Loans outstanding thereunder) of a Class or,
if the applicable Commitments of the same Class as such Commitment are not then
in effect, the principal outstanding balance of the Loans of such Class of the
assigning Lender subject to each such assignment (in each case, determined as
of the date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent or, if “Trade Date” is specified in the
Assignment and Assumption, as of the Trade Date) shall not be less than
$5,000,000, unless each of the Administrative Agent and, so long as no Event of
Default shall exist, the Borrower otherwise consents (each such consent not to
be unreasonably withheld or delayed); provided, however, that if, after giving
effect to such assignment, the amount of the Commitment of the applicable Class
held by such assigning Lender or if the applicable Commitment is not then in
effect, the outstanding principal balance of the Loans of the applicable Class of
such assigning Lender, as applicable, would be less than $5,000,000, then such
assigning Lender shall assign the entire amount of its Commitment of such Class
and the Loans of such Class at the time owing to it.
(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 the Commitment assigned, except that this
clause (ii) shall not apply to rights in respect of a Bid Rate Loan and
shall not prohibit any Lender from assigning all or a portion of its rights and
obligations among separate Classes of Commitments or Loans on a non-pro rata basis.
(iii) Required
Consents. No consent shall be required for any assignment except to the
extent required by clause (i)(B) of this subsection (b) and, in
addition:
(A) the consent of the Borrower
(such consent not to be unreasonably withheld or delayed) shall be required
unless (x) an Event of Default shall exist at the time of such assignment
or (y) such assignment is to a Lender of the same Class of Commitments or
Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender;
provided that the Borrower shall be deemed to have consented to any such
assignment unless it shall object thereto by written notice to the
Administrative Agent within 5 Business Days after having received notice
thereof;
(B) the consent of the Administrative
Agent (such consent not to be unreasonably withheld or delayed) shall be
required unless such assignment is to a Lender of the same Class of Commitments
or Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender;
and
(C) the consent of each Issuing Bank
and the Swingline Lender (such consent not to be unreasonably withheld or
delayed) shall be required for any assignment in respect of a Revolving
Commitment if such assignment is to a Person that is not already a Revolving
Lender.
(iv) Assignment and Assumption;
Notes. The parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation
fee of $4,500 for each assignment (which fee the Administrative Agent may, in
its sole discretion, elect to waive), and the assignee, if it is not a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire. If
requested by the transferor Lender or the assignee, upon the consummation of
any assignment, the transferor Lender, the Administrative Agent and the
Borrower shall make appropriate arrangements so that new Notes are issued to
the assignee and such transferor Lender, as appropriate.
(v) No Assignment to Certain
Persons. No such assignment shall be made to (A) the Borrower or any
of the Borrower’s Affiliates or Subsidiaries or (B) to any Defaulting
Lender or any of its Subsidiaries, or to any Person who, upon becoming a Lender
hereunder, would constitute any of the foregoing Persons described in this
clause (B).
(vi) No Assignment to Natural
Persons. No such assignment shall be made to 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 (x) pay and satisfy in full all payment liabilities then owed by such
Defaulting Lender to the Administrative Agent, the Issuing Banks, the Swingline
Lender and each other Lender hereunder (and interest accrued thereon), and (y)
acquire (and fund as appropriate) its full pro rata share of all Loans and
participations in Letters of Credit and Swingline Loans in accordance with its Revolving
Commitment Percentage. 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.
Subject
to acceptance and recording thereof by the Administrative Agent pursuant to the
immediately following subsection (c), from and after the effective date
specified in each Assignment and Assumption, the assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and Assumption
covering all of the assigning 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 5.4., 13.2. and 13.9. and the
other provisions of this Agreement and the other Loan Documents as provided in
Section 13.10. with respect to facts and circumstances occurring prior to
the effective date of such 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 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 the immediately following
subsection (d).
(c) Register.
The Administrative Agent, acting solely for this purpose as a non-fiduciary
agent of the Borrower, shall maintain at the Principal Office a copy of each
Assignment and Assumption delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the 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, notwithstanding notice to the contrary. 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, or notice to, the Borrower,
the Administrative Agent, the Swingline Lender or any Issuing Bank, sell
participations to any Person (other than a natural Person or the Borrower or
any of the Borrower’s 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 Borrower, the Administrative Agent, the Issuing Banks 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. 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 (w) increase such Lender’s Commitments,
(x) extend the date fixed for the payment of principal on the Loans or
portions thereof owing to such Lender, (y) reduce the rate at which
interest is payable thereon (other than with respect to a waiver of
implementation of interest at the Post-Default Rate) or (z) release any
Guarantor from its Obligations under the Guaranty except as contemplated by
Section 8.14.(b), in each case, as applicable to that portion of such
Lender’s rights and/or obligations that are subject to the participation. The Borrower agrees that each Participant shall be entitled to the
benefits of Sections 3.10., 5.1., 5.4. (subject to the requirements and limitations therein,
including the requirements under Section 3.10.(g) (it being understood that the documentation required
under Section 3.10.(g) shall be
delivered to the participating Lender)) to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to subsection (b) of this Section; provided that such Participant (A) agrees to
be subject to the provisions of Section 5.6. as if it were an assignee
under subsection (b) of this Section; and (B) shall not be entitled to
receive any greater payment under Sections 5.1. or 3.10., with respect to any participation, than its
participating Lender would have been entitled to receive, except to the extent
such entitlement to receive a greater payment results from a Regulatory Change
that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at
the Borrower’s request and expense, to use reasonable efforts to cooperate with
the Borrower to effectuate the provisions of Section 5.6. 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 that 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 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 or other central 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.
(f) No
Registration. Each Lender agrees that, without the prior written consent
of the Borrower and the Administrative Agent, it will not make any assignment
hereunder in any manner or under any circumstances that would require
registration or qualification of, or filings in respect of, any Loan or Note
under the Securities Act or any other securities laws of the United States of
America or of any other jurisdiction.
(g) Designated
Lenders. Any Revolving Lender (each, a “Designating Lender”) may at any
time while the Borrower has been assigned an Investment Grade Rating from any
two Rating Agencies designate one Designated Lender to fund Bid Rate Loans on
behalf of such Designating Lender subject to the terms of this subsection, and
the provisions in the immediately preceding subsections (b) and (d) shall
not apply to such designation. No Lender may designate more than one
Designated Lender. The parties to each such designation shall execute and
deliver to the Administrative Agent for its acceptance a Designation
Agreement. Upon such receipt of an appropriately completed Designation
Agreement executed by a Designating Lender and a designee representing that it
is a Designated Lender, the Administrative Agent will accept such Designation
Agreement and give prompt notice thereof to the Borrower, whereupon
(i) the Borrower shall execute and deliver to the Designating Lender a Bid
Rate Note payable to the Designated Lender, (ii) from and after the effective
date specified in the Designation Agreement, the
Designated Lender shall become a party to this Agreement with a right to make
Bid Rate Loans on behalf of its Designating Lender pursuant to Section 2.3.
after the Borrower has accepted a Bid Rate Loan (or portion thereof) of the
Designating Lender, and (iii) the Designated Lender shall not be required to
make payments with respect to any obligations in this Agreement except to the
extent of excess cash flow of such Designated Lender which is not otherwise
required to repay obligations of such Designated Lender which are then due and
payable; provided, however, that regardless of such designation and assumption
by the Designated Lender, the Designating Lender shall be and remain obligated
to the Borrower, the Administrative Agent and the Lenders for each and every of
the obligations of the Designating Lender and its related Designated Lender
with respect to this Agreement, including, without limitation, any
indemnification obligations under Section 12.6. and any sums otherwise
payable to the Borrower by the Designated Lender. Each Designating Lender
shall serve as the agent of the Designated Lender and shall on behalf of, and
to the exclusion of, the Designated Lender: (i) receive any and all payments
made for the benefit of the Designated Lender and (ii) give and receive all
communications and notices and take all actions hereunder, including, without
limitation, votes, approvals, waivers, consents and amendments under or
relating to this Agreement and the other Loan Documents. Any such notice,
communication, vote, approval, waiver, consent or amendment shall be signed by
the Designating Lender as agent for the Designated Lender and shall not be
signed by the Designated Lender on its own behalf and shall be binding on the
Designated Lender to the same extent as if signed by the Designated Lender on
its own behalf. The Borrower, the Administrative Agent and the Lenders may
rely thereon without any requirement that the Designated Lender sign or
acknowledge the same. No Designated Lender may assign or transfer all or any
portion of its interest hereunder or under any other Loan Document, other than
assignments to the Designating Lender which originally designated such Designated
Lender. The Borrower, the Lenders and the Administrative Agent each hereby
agrees that it will not institute against any Designated Lender or join any
other Person in instituting against any Designated Lender any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding under any
federal or state bankruptcy or similar law, until the later to occur of
(x) one year and one day after the payment in full of the latest maturing
commercial paper note issued by such Designated Lender and (y) the
Revolving Termination Date. In connection with any such designation, the
Designating Lender shall pay to the Administrative Agent an administrative fee
for processing such designation in the amount of $2,000.
(h) USA
Patriot Act Notice; Compliance. In order for the Administrative Agent to
comply with “know your customer” and anti-money laundering rules and
regulations, including without limitation, the Patriot Act, prior to any Lender
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 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.
Section 13.6.
Amendments and Waivers.
(a) Generally. Except as otherwise
expressly provided in this Agreement, (i) any consent or approval required or
permitted by this Agreement or any other Loan Document to be given by the
Lenders may be given, (ii) any term of this Agreement or of any other Loan
Document may be amended, (iii) the performance or observance by the Borrower,
any other Loan Party or any other Subsidiary of any terms of this Agreement or
such other Loan Document may be waived, and (iv) 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 which is party thereto. Subject
to the immediately following subsection (b), any term of this Agreement or of
any other Loan Document relating solely to the rights
or obligations of the Lenders of a particular Class, and not Lenders of any
other Class, may be amended, and the performance or observance by the Borrower
or any other Loan Party or any Subsidiary of any such terms may be waived
(either generally or in a particular instance and either retroactively or
prospectively) with, and only with, the written consent of the Requisite Class
Lenders for such Class of Lenders (and, in the case of an amendment to any Loan
Document, the written consent of each Loan Party which is a party thereto). Notwithstanding
anything to the contrary contained in this Section, the Fee Letter may only be
amended, and the performance or observance by any Loan Party thereunder may
only be waived, in a writing executed by the parties thereto.
(b) Additional Lender Consents. In
addition to the foregoing requirements, no amendment, waiver or consent shall:
(i) increase (or reinstate or,
other than in accordance with Section 2.14., extend) a Commitment of a Lender
or subject a Lender to any additional obligations without the written consent
of such Lender;
(ii) reduce the principal of, or
interest that has accrued or the rates of interest that will be charged on the
outstanding principal amount of, any Loans or other Obligations without the
written consent of each Lender directly affected thereby; provided, however,
only the written consent of the Requisite Lenders shall be required for the
waiver of interest payable at the Post-Default Rate, retraction of the
imposition of interest at the Post-Default Rate and amendment of the definition
of “Post-Default Rate”;
(iii) reduce the amount of any Fees
payable to a Lender without the written consent of such Lender;
(iv) modify the definition of
“Revolving Commitment Percentage” without the written consent of each Revolving
Lender;
(v) modify the definitions of “Revolving
Termination Date” or clause (a) of the definition of “Termination Date” (in
each case, except in accordance with Section 2.14.) or otherwise postpone
any date fixed for, or forgive, any payment of principal of, or interest on,
any Revolving Loans or for the payment of Fees or any other Obligations owing
to the Revolving Lenders, or extend the expiration date of any Letter of Credit
beyond the Revolving Termination Date (except in accordance with
Section 2.2(b)), in each case, without the written consent of each
Revolving Lender directly affected thereby;
(vi) modify the definitions of “Term
Loan Maturity Date” or clause (b) of the definition of “Termination Date”
or otherwise postpone any date fixed for, or forgive, any payment of principal
of, or interest on, any Term Loans or for the payment of Fees or any other
Obligations owing to the Term Loan Lenders, in each case, without the written
consent of each Term Loan Lender directly affected thereby;
(vii) modify the definition of “Term
Loan Availability Termination Date” without the written consent of each Term
Loan Lender;
(viii) modify the definition of “Pro
Rata Share” or amend or otherwise modify the provisions of Section 3.2.
without the written consent of each Lender directly affected thereby;
(ix) amend
this Section, or amend the definitions of the terms used in this Agreement or
the other Loan Documents insofar as such definitions affect the substance of
this Section, without the written consent of each Lender;
(x) modify the definition of the
term “Requisite Lenders” or (except as otherwise provided in the immediately
following clause (xii)), 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 without the written consent
of each Lender;
(xi) modify the definition of the
term “Requisite Class Lenders” as it relates to a particular Class of Lenders, or
modify in any other manner the number or percentage of a Class of Lenders
required to make any determinations or waive any rights hereunder or to modify
any provision hereof, in each case, solely with respect to such Class of
Lenders, without the written consent of each Lender in such Class;
(xii) release any Guarantor from its
obligations under the Guaranty (except as contemplated by Section 8.14.(b))
without the written consent of each Lender; or
(xiii) amend, or waive the Borrower’s
compliance with, Section 2.16. without the written consent of each Revolving
Lender.
(c) Amendment of Administrative
Agent’s Duties, Etc. No amendment, waiver or consent unless in writing and
signed by the Administrative Agent, 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 2.5. 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 2.4. or the obligations of an Issuing Bank 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 such Issuing
Bank. 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. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment,
waiver or consent hereunder (and any amendment, waiver or consent which by its
terms requires the consent of all Lenders or each affected Lender may be
effected with the consent of the applicable Lenders other than Defaulting
Lenders), except that (x) a Commitment of any Defaulting Lender may not be
increased, reinstated or extended without the written consent of such
Defaulting Lender and (y) any waiver, amendment or modification requiring the
consent of all Lenders or each affected Lender that by its terms affects any
Defaulting Lender more adversely than other affected Lenders shall require the
written consent of such Defaulting Lender. 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 other or further notice or demand in
similar or other circumstances.
(d) Technical
Amendments. Notwithstanding anything to the contrary in this Section 13.6.,
if the Administrative Agent and the Borrower have jointly identified an ambiguity,
omission, mistake or defect in any provision of this Agreement or any other
Loan Document or an inconsistency between provisions of this Agreement or any
other Loan Document, the Administrative Agent and the Borrower shall be
permitted to amend such provision or provisions to cure such ambiguity,
omission, mistake, defect or inconsistency so long as to do so would not
adversely affect the interests of the Lenders and the Issuing Banks in any
material respect. Any such amendment shall become effective without any further
action or consent of any other party to this Agreement.
Section 13.7.
Nonliability of Administrative Agent and Lenders.
The
relationship between the Borrower, on the one hand, and the Lenders, the
Issuing Banks and the Administrative Agent, on the other hand, shall be solely
that of borrower and lender. None of the Administrative Agent, any Issuing
Bank or any Lender shall have any fiduciary responsibilities to the Borrower
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, any Issuing
Bank or any Lender to any Lender, the Borrower, any Subsidiary or any other
Loan Party. None of the Administrative Agent, any Issuing Bank or 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.
Section 13.8.
Confidentiality.
The
Administrative Agent, each Issuing Bank and each Lender shall maintain the
confidentiality of all Information (as defined below) but in any event may make
disclosure: (a) to its Affiliates and to its and its Affiliates’ other respective
Related Parties (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential); (b) subject to an
agreement containing provisions substantially the same as those of this
Section, to (i) any actual or proposed assignee, Participant or other
transferee in connection with a potential transfer of any Commitment or Loan or
participation therein as permitted hereunder, or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Borrower and its obligations; (c) as required
or requested by any Governmental Authority or regulatory or similar authority (including
any self-regulatory authority, such as the National Association of Insurance
Commissioners) having or purporting to have jurisdiction over it or representative thereof or pursuant to legal process
or in connection with any legal proceedings, or as otherwise required by
Applicable Law, in which case (except with respect to any audit or examination
conducted by bank accountants or any governmental bank regulatory authority
exercising examination or regulatory authority) such disclosing Person shall
promptly notify the Borrower thereof to the extent permitted by Applicable Law;
(d) to the Administrative Agent’s, such Issuing Bank’s or such Lender’s
independent auditors and other
professional advisors (provided they shall be notified of the confidential
nature of the information); (e) in connection with the exercise of any remedies
under any Loan Document or any action or proceeding relating to any Loan
Document or the enforcement of rights thereunder; (f) to the extent such
Information (i) becomes publicly available other than as a result of a
breach of this Section actually known by the Administrative Agent, such Issuing
Bank or such Lender to be a breach of this Section or (ii) becomes
available to the Administrative Agent, any Issuing Bank, any Lender or any
Affiliate of the Administrative Agent, any Issuing Bank or any Lender on a
nonconfidential basis from a source other than the Borrower or any Affiliate of
the Borrower; (g) to the extent requested by, or required to be disclosed
to, any nationally recognized rating agency; (h) to bank trade
publications, such information to consist of deal
terms and other information customarily found in such publications; (i) to
any other party hereto; and (j) with the consent of the Borrower. Notwithstanding
the foregoing, the Administrative Agent, each Issuing Bank and each Lender may
disclose any such confidential information, without notice to the Borrower or
any other Loan Party, to Governmental Authorities in connection with any
regulatory examination of the Administrative Agent, such Issuing Bank or such
Lender or in accordance with the regulatory compliance policy of the
Administrative Agent, such Issuing Bank or such Lender. As used in this
Section, the term “Information” means all information received from the
Borrower, any other Loan Party, any other Subsidiary or Affiliate relating to
any Loan Party or any of their respective businesses, other than any such
information that is available to the Administrative Agent, any Lender or any Issuing
Bank on a nonconfidential basis prior to disclosure by the Borrower, any other
Loan Party, any other Subsidiary or any Affiliate. Any Person required to maintain
the confidentiality of Information as provided in this Section 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.
Section 13.9.
Indemnification.
(a) The
Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), each
Issuing Bank, each Lender and each Related Party of any of the foregoing
Persons (each such Person being called an “Indemnified Party”) against, and
hold each Indemnified Party harmless from, and shall pay or reimburse any such
Indemnified Party for, any and all actual losses, claims (including without
limitation, Environmental Claims), damages, liabilities and related expenses
(including without limitation, the fees, charges and disbursements of any
counsel for any Indemnified Party (subject to the limitations below)), incurred
by any Indemnified Party or asserted against any Indemnified Party by any
Person (including the Borrower, any other Loan Party or any other Subsidiary)
other than such Indemnified Party and its Related Parties, arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby or thereby, the performance by the parties hereto or thereto of their
respective obligations hereunder or thereunder or the consummation of the
transactions contemplated hereby or thereby, (ii) any Loan or Letter of
Credit or the use or proposed use of the proceeds therefrom (including any
refusal by any Issuing Bank to honor a demand for payment under a Letter of
Credit if the documents presented in connection with such demand do not
strictly comply with the terms of such Letter of Credit), (iii) any actual
or alleged presence or release of Hazardous Materials on or from any property
owned or operated by the Borrower, any other Loan Party or any other
Subsidiary, or any Environmental Claim related in any way to the Borrower, any
other Loan Party or any other Subsidiary, (iv) any actual or prospective
claim, litigation, investigation or proceeding (an “Indemnity Proceeding”)
relating to any of the foregoing, whether based on contract, tort or any other
theory, whether brought by a third party or by the Borrower, any other Loan
Party or any other Subsidiary, and regardless of whether any Indemnified Party is
a party thereto, or (v) any claim (including without limitation, any
Environmental Claims), investigation, litigation or other proceeding (whether
or not the Administrative Agent, any Issuing Bank or any Lender is a party
thereto) and the prosecution and defense thereof, arising out of or in any way
connected with the Loans, this Agreement, any other Loan Document, or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby; provided, however, that such indemnity shall
not, as to any Indemnified Party, be available to the extent that such losses,
claims, damages, liabilities or related expenses (A) are determined by a court
of competent jurisdiction by final and nonappealable judgment to have resulted
from the gross negligence, willful misconduct or bad faith breach of direct
funding obligations hereunder of such Indemnified Party or (B) result from a dispute
among Indemnified Parties (other than
disputes involving the Administrative Agent, a Lead Arranger or other agent in
its capacity or in fulfilling its role as such and any claims arising out of
any act or omission on the part of the Borrower or any Subsidiary); provided, further,
however, that legal fees and expenses
shall be limited to the reasonable and documented out-of-pocket fees,
disbursements and other charges of one primary
counsel to the Administrative Agent and all of the Lenders, taken as a whole,
and one local counsel for the Administrative Agent and all of the Lenders,
taken as a whole, in each relevant jurisdiction and with respect to each
relevant specialty, and in the case of an actual or perceived conflict of
interest, one additional primary counsel and one local counsel in each relevant
jurisdiction and with respect to each relevant specialty to the similarly
situated affected indemnified persons taken as a whole. This section shall not
apply with respect to Taxes other than any Taxes that represent losses, claims
or damages arising from any non-Tax claim. Each Indemnified Party shall be
obligated to refund or return any amounts paid by the Borower under this
paragraph to such Indemnified Party to the extent such Indemnified Party was
not actually entitled to payment of such amounts in accordance with the terms
hereof as determined by such Indemnified Party in its sole discretion exercised in good faith.
(b) 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.
(c) 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 of the
other obligations set forth in this Agreement or any other Loan Document to
which it is a party.
References
in this Section 13.9. to “Lender” or “Lenders” shall be deemed to include
such Persons (and their Affiliates) in their capacity as Specified Derivatives
Providers.
Section 13.10.
Termination; Survival.
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
been canceled (other than Extended Letters of Credit in respect of which the
Borrower has satisfied the requirements to provide Cash Collateral as required
in Section 2.4.(b) and other Letters of Credit that have been Cash
Collateralized in a manner satisfactory to the Administrative Agent and the
applicable Issuing Bank), (c) none of the Lenders is obligated any longer
under this Agreement to make any Loans and no Issuing Bank is obligated under
this Agreement to issue Letters of Credit and (d) all Obligations (other
than obligations which survive as provided in the following sentence) have been
paid and satisfied in full. The indemnities to which the Administrative Agent,
the Issuing Banks, the Lenders and their respective Related Parties are
entitled under the provisions of Sections 3.10., 5.1., 5.4., 12.6., 13.2.
and 13.9. and any other provision of this Agreement and the other Loan
Documents, and the provisions of Section 13.4., shall continue in full
force and effect and shall protect the Administrative Agent, the Issuing Banks,
the Lenders and their respective Related Parties (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.
Section 13.11.
Severability of Provisions.
If
any provision of this Agreement or the other Loan Documents shall be determined
by a court of competent jurisdiction to be invalid or unenforceable, that
provision shall be deemed severed from the Loan Documents, and the validity,
legality and enforceability of the remaining provisions shall remain in full
force as though the invalid, illegal, or unenforceable provision had never been
part of the Loan Documents.
Section 13.12. GOVERNING LAW.
THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF CALIFORNIA APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE.
Section 13.13.
Counterparts.
To
facilitate execution, this Agreement and any amendments, waivers, consents or
supplements may be executed in any number of counterparts as may be convenient
or required (which may be effectively delivered by facsimile, in portable
document format (“PDF”) or other similar electronic means). It shall not be
necessary that the signature of, or on behalf of, each party, or that the
signature of all persons required to bind any party, appear on each
counterpart. All counterparts shall collectively constitute a single
document. It shall not be necessary in making proof of this document to
produce or account for more than a single counterpart containing the respective
signatures of, or on behalf of, each of the parties hereto.
Section 13.14.
Obligations with Respect to Loan Parties and Subsidiaries.
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 the Borrower may have that the Borrower
does not control such Loan Parties or Subsidiaries.
Section 13.15.
Independence of Covenants.
All
covenants hereunder shall be given in any jurisdiction independent effect so
that if a particular action or condition is not permitted by any of such
covenants, the fact that it would be permitted by an exception to, or be
otherwise within the limitations of, another covenant shall not avoid the
occurrence of a Default or an Event of Default if such action is taken or
condition exists.
Section 13.16.
Limitation of Liability.
None
of the Administrative Agent, any Issuing Bank, any Lender, or any of their
respective Related Parties, the Borrower or any of its Subsidiaries shall have
any liability with respect to, and each of the Administrative Agent, the
Issuing Banks, the Lenders and the Borrower hereby waives, releases, and agrees
not to sue any of them upon, any claim for any special, indirect, incidental,
consequential or punitive damages suffered or incurred by any of the foregoing
Persons in connection with, arising out of, or in any way related to, this
Agreement, any of the other Loan Documents or any of the transactions
contemplated by this Agreement or any of the other Loan Documents; provided,
that the foregoing does not limit or relieve the Borrower of its obligations
under Sections 13.2. and 13.9. hereof with respect to any such damages. None of the Administrative Agent, any Issuing Bank,
any Lender or any of their respective Related Parties shall be liable to the
Borrower, its Affiliates or any other Person for any damages arising from the
use by others of information or other materials obtained or transmitted by any
electronic means.
Section 13.17.
Entire Agreement.
This
Agreement and the other Loan Documents 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. To the extent any
term of this Agreement is inconsistent with a term of any other Loan Document
to which the parties of this Agreement are party, the term of this Agreement
shall control to the extent of such inconsistency. There are no oral
agreements among the parties hereto.
Section 13.18.
Construction.
The
Administrative Agent, each Issuing Bank, the Borrower and each Lender
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 the Administrative
Agent, each Issuing Bank, the Borrower and each Lender.
Section 13.19.
Headings.
The
paragraph and section headings in this Agreement are provided for convenience
of reference only and shall not affect its construction or interpretation.
[Signatures on Following Pages]
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.
REALTY INCOME CORPORATION
By:______________________________
Name:_________________________
Title:__________________________
[Signatures Continued on Next Page]
[Signature Page to Credit Agreement with Realty
Income Corporation]
Wells Fargo Bank, National
Association, as Administrative Agent, as
Swingline Lender, as an Issuing Bank and as a Lender
By:______________________________
Name:_________________________
Title:__________________________
[Signatures Continued on Next Page]
[Signature Page to Credit Agreement with Realty
Income Corporation]
BANK OF AMERICA, N.A., as an Issuing
Bank and as a Lender
By:______________________________
Name: Helen W. Chan
Title:__________________________
[Signatures Continued on Next Page]
[Signature Page to Credit Agreement with Realty
Income Corporation]
ROYAL BANK OF CANADA, as an Issuing
Bank and as a Lender
By:______________________________
Name:_________________________
Title:__________________________
[Signatures Continued on Next Page]
[Signature Page to Credit Agreement with Realty
Income Corporation]
REGIONS BANK, as a Lender
By:______________________________
Name:_________________________
Title:__________________________
[Signatures Continued on Next Page]
[Signature Page to Credit Agreement with Realty
Income Corporation]
JPMORGAN CHASE BANK, N.A., as a Lender
By:______________________________
Name: Elizabeth R. Johnson
Title: Authorized Officer
[Signatures Continued on Next Page]
[Signature Page to Credit Agreement with Realty
Income Corporation]
U.S. BANK NATIONAL ASSOCIATION, as a
Lender
By:______________________________
Name: James Nigro
Title: Senior Vice President/Market
Manager
[Signatures Continued on Next Page]
[Signature Page to Credit Agreement with Realty
Income Corporation]
THE BANK OF NEW YORK MELLON, as a Lender
By:______________________________
Name: Helga Blum
Title: Managing Director
[Signatures Continued on Next Page]
[Signature Page to Credit Agreement with Realty
Income Corporation]
BRANCH BANKING AND TRUST COMPANY, as a
Lender
By:______________________________
Name: Ahaz Armstrong
Title: Vice President
[Signatures Continued on Next Page]
[Signature Page to Credit Agreement with Realty
Income Corporation]
MUFG UNION BANK, N.A., as a Lender
By:______________________________
Name:_________________________
Title:__________________________
[Signatures Continued on Next Page]
[Signature Page to Credit Agreement with Realty
Income Corporation]
PNC BANK, NATIONAL ASSOCIATION, as a
Lender
By:______________________________
Name: Nicolas Zitelli
Title: Senior Vice President
[Signatures Continued on Next Page]
[Signature Page to Credit Agreement with Realty
Income Corporation]
BARCLAYS
BANK PLC, as a Lender
By:______________________________
Name:_________________________
Title:__________________________
[Signatures Continued on Next Page]
[Signature Page to Credit Agreement with Realty
Income Corporation]
CITIBANK, NA, as a Lender
By:______________________________
Name: John C. Rowland
Title:__________________________
[Signatures Continued on Next Page]
[Signature Page to Credit Agreement with Realty
Income Corporation]
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,
as a Lender
By:______________________________
Name:_________________________
Title:__________________________
By:______________________________
Name:_________________________
Title:__________________________
[Signatures Continued on Next Page]
[Signature Page to Credit Agreement with Realty
Income Corporation]
GOLDMAN
SACHS BANK USA, as a Lender
By:______________________________
Name:_________________________
Title:__________________________
[Signatures Continued on Next Page]
[Signature Page to Credit Agreement with Realty
Income Corporation]
MIZUHO BANK, LTD., as a Lender
By:______________________________
Name: John Davies
Title: Authorized Signatory
[Signatures Continued on Next Page]
[Signature Page to Credit Agreement with Realty
Income Corporation]
MORGAN STANLEY BANK, N.A., as a Lender
By:______________________________
Name:_________________________
Title:__________________________
[Signatures Continued on Next Page]
[Signature Page to Credit Agreement with Realty
Income Corporation]
CITIZENS
BANK, NATIONAL ASSOCIATION, as a Lender
By:______________________________
Name: Samuel A. Bluso
Title:__________________________
[Signatures Continued on Next Page]
[Signature Page to Credit Agreement with Realty
Income Corporation]
UBS
AG, STAMFORD BRANCH, as a Lender
By:______________________________
Name:_________________________
Title:__________________________
By:______________________________
Name:_________________________
Title:__________________________
[Signatures Continued on Next Page]
[Signature
Page to Credit Agreement with Realty Income Corporation]
RAYMOND JAMES BANK, N.A., as a Lender
By:______________________________
Name:_________________________
Title:__________________________
[Signatures Continued on Next Page]
[Signature
Page to Credit Agreement with Realty Income Corporation]
ASSOCIATED
BANK, NATIONAL ASSOCIATION,
as a Lender
By:______________________________
Name: Greg Conner
Title: Vice President
[Signatures Continued on Next Page]
[Signature Page to Credit Agreement with Realty
Income Corporation]
COMERICA BANK, as a Lender
By:______________________________
Name:_________________________
Title:__________________________
[End Signatures]
SCHEDULE I
Commitments
Lender
|
Revolving Commitment Amount
|
Term Loan Commitment Amount
|
Total Commitment Amount
|
Wells Fargo Bank,
National Association
|
$220,000,000
|
$30,000,000
|
$250,000,000
|
Bank of America, N.A.
|
$176,000,000
|
$24,000,000
|
$200,000,000
|
Royal Bank of Canada
|
$176,000,000
|
$24,000,000
|
$200,000,000
|
Regions Bank
|
$145,500,000
|
$19,500,000
|
$165,000,000
|
JPMorgan Chase Bank,
N.A.
|
$145,500,000
|
$19,500,000
|
$165,000,000
|
U.S. Bank National
Association
|
$145,500,000
|
$19,500,000
|
$165,000,000
|
The Bank of New York
Mellon
|
$83,750,000
|
$11,250,000
|
$95,000,000
|
Branch Banking and
Trust Company
|
$83,750,000
|
$11,250,000
|
$95,000,000
|
MUFG Union Bank, N.A.
|
$83,750,000
|
$11,250,000
|
$95,000,000
|
PNC Bank, National
Association
|
$83,750,000
|
$11,250,000
|
$95,000,000
|
Barclays Bank PLC
|
$75,000,000
|
$10,000,000
|
$85,000,000
|
Citibank, N.A.
|
$75,000,000
|
$10,000,000
|
$85,000,000
|
Credit Suisse AG,
Cayman Islands Branch
|
$85,000,000
|
$0
|
$85,000,000
|
Goldman Sachs Bank USA
|
$75,000,000
|
$10,000,000
|
$85,000,000
|
Mizuho Bank, Ltd.
|
$75,000,000
|
$10,000,000
|
$85,000,000
|
Morgan Stanley Bank,
N.A.
|
$75,000,000
|
$10,000,000
|
$85,000,000
|
Citizens Bank, National
Association
|
$49,000,000
|
$6,000,000
|
$55,000,000
|
UBS AG, Stamford Branch
|
$50,000,000
|
$0
|
$50,000,000
|
Raymond James Bank,
N.A.
|
$35,500,000
|
$4,500,000
|
$40,000,000
|
Associated Bank,
National Association
|
$31,000,000
|
$4,000,000
|
$35,000,000
|
Comerica Bank
|
$31,000,000
|
$4,000,000
|
$35,000,000
|
Total:
|
$2,000,000,000
|
$250,000,000
|
$2,250,000,000
|
SCHEDULE
1.1.(A)
Existing Letters of
Credit
None.
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