Exhibit 10.1

AMENDMENT NO. 1 TO AMENDED AND RESTATED

REVOLVING CREDIT AGREEMENT

This AMENDMENT NO. 1 TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT, dated as of June 24, 2022 (this “Amendment No. 1”), is by and among DUKE REALTY LIMITED PARTNERSHIP, an Indiana limited partnership (the “Borrower”), Duke Realty Corporation, an Indiana corporation (the “General Partner” and the “Guarantor”), JPMORGAN CHASE BANK, N.A., as administrative agent for the Lenders (as defined below) (the “Administrative Agent”), and the Lenders party hereto. Reference is made to that certain Amended and Restated Revolving Credit Agreement, dated as of March 26, 2021 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among the Borrower, the General Partner, the several banks, financial institutions and other entities from time to time party thereto (collectively, the “Lenders”), and the Administrative Agent. Capitalized terms used herein without definition shall have the same meanings as set forth in the Credit Agreement, as amended hereby.

RECITALS

WHEREAS, the Borrower has requested that the Administrative Agent and the Lenders make certain amendments to the Credit Agreement in order to implement SOFR-based interest rates, and the Administrative Agent and the Lenders are willing to make such amendments on the terms and conditions set forth herein;

WHEREAS, pursuant to Section 2.25 of the Credit Agreement, the Borrower has requested, and the New Term Loan Lenders (as defined below) have agreed, to establish New Term Loan Commitments under the Credit Agreement on the terms and conditions set forth herein, and this Amendment No. 1 constitutes an Additional Credit Extension Amendment for purposes of providing New Term Loans in accordance with the Credit Agreement;

NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:

SECTION 1. AMENDMENT TO CREDIT AGREEMENT. As of the Amendment Effective Date (as defined in Section 5 hereof), the Credit Agreement is hereby amended as follows:

SECTION 1.01. Amended Credit Agreement. As of the Amendment Effective Date, the Credit Agreement (including Schedule L and Exhibit A thereto, but excluding the other Exhibits and Schedules) is hereby amended as set forth on Exhibit A attached hereto such that all of the newly inserted bold, double-underlined text (indicated textually in the same manner as the following examples: <double-underlined text> and <double-underlined text>) and any formatting changes reflected therein shall be deemed to be inserted and reflected in the text of the Credit Agreement and all of the deleted stricken text (indicated textually in the same manner as the following examples: stricken text and stricken text) shall be deemed to be deleted from the text of the Credit Agreement.

SECTION 1.02. Incremental Commitments. As of the Amendment Effective Date, each of JPMorgan Chase Bank, N.A., Wells Fargo Bank, National Association, The Bank of Nova Scotia, Regions Bank, Morgan Stanley Bank, N.A., U.S. Bank National Association, PNC Bank, National Association, Truist Bank, The Northern Trust Company and Associated Bank, National Association (the “New Term Loan Lenders”) shall have a New Term Loan Commitment in the amount set forth opposite its name in Schedule L attached hereto.

SECTION 1.03. Making of the New Term Loans. On the Amendment Effective Date, and so long as the conditions set forth in Section 2.25 of the Credit Agreement are satisfied as of such date, each New Term Loan Lender shall make a New Term Loan to the Borrower pursuant to Section 2.25 of the Credit Agreement in the amount equal to its New Term Loan Commitment and in the aggregate amount of $500,000,000. Such New Term Loans shall have the terms and provisions (including, without limitation, the maturity date) applicable to the “Initial New Term Loans” as set forth in the amended Credit Agreement attached hereto as Exhibit A. From and after the Amendment Effective Date, each reference to the Loans in the Credit Agreement shall be deemed to include the New Term Loans made by the New Term Loan Lenders.

SECTION 1.04. New Term Loan Lenders. From and after the Amendment Effective Date, each New Term Loan Lender shall be deemed to be a Lender for all purposes of the Credit Agreement, and each reference to the Lenders in the Credit Agreement shall be deemed to include the New Term Loan Lenders. Without limiting the generality of the foregoing, each New Term Loan Lender confirms its appointment of JPMorgan Chase Bank, N.A., as the Administrative Agent in accordance with Article XI of the Credit Agreement.

SECTION 1.05. Representations, Warranties and Agreements of New Term Loan Lenders. Each New Term Loan Lender (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Amendment No. 1 and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement and under applicable law that are required to be satisfied by it in order to become a Lender, (iii) from and after the Amendment Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of its New Term Loan Commitment and New Term Loans, shall have the obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 7.1 of the Credit Agreement, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Amendment No. 1, and (v) it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Amendment No. 1; and (b) agrees that (i) it will, independently and without reliance upon the Administrative Agent or any other Lender and their Related Parties, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.

 

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SECTION 1.06. Request under Section 2.25 of Credit Agreement. This Amendment No. 1 is and shall be deemed to be for all purposes of the Credit Agreement the first and partial exercise by the Borrower of its rights under Section 2.25 of the Credit Agreement to request New Term Loan Commitments. From and after the Amendment Effective Date (and after giving effect to the New Term Loans to be made on such date), $300,000,000 of the New Term Loan Commitments and New Revolving Credit Commitments shall remain available to be requested by the Borrower pursuant to Section 2.25 of the Credit Agreement. The Administrative Agent and the Lenders hereby waive the requirement under Section 2.25 of the Credit Agreement that the Borrower provide written notice to the Administrative Agent of its request for the New Term Loan Commitments being provided under this Amendment No. 1.

SECTION 2. CONSENT TO PROLOGIS MERGER

The Borrower has informed the Administrative Agent and the Lenders that on June 11, 2022, the General Partner and the Borrower (the “Duke Realty Parties”) entered into an Agreement and Plan of Merger (the “Merger Agreement”) by and among Prologis, Inc., a Maryland corporation (“Prologis”), Prologis, L.P., a Delaware limited partnership (“Prologis OP”), Compton Merger Sub LLC, a Delaware limited liability company and a wholly owned subsidiary of Prologis OP (“Prologis Merger Sub” and, together with Prologis, Prologis OP and Prologis Merger Sub, the “Prologis Parties”). The Merger Agreement provides that, upon the terms and subject to the conditions set forth in the Merger Agreement, (a) the General Partner will merge with and into Prologis Merger Sub (the “Duke Realty Merger”), with Prologis Merger Sub surviving the merger and remaining a wholly owned subsidiary of Prologis (the “Surviving Entity”), (b) thereafter, Prologis and the Surviving Entity will cause all of the outstanding equity interests of the Surviving Entity to be contributed to Prologis OP in exchange for the issuance by Prologis OP of partnership interests in Prologis OP to Prologis and/or its subsidiaries as directed by Prologis, and (c) thereafter, Prologis OP Merger Sub will be merged with and into the Borrower, with the Borrower surviving the merger and becoming a wholly owned subsidiary of Prologis OP (the “Partnership Merger” and, together with the Duke Realty Merger, the “Mergers”), all as more fully described in the Form 8-K filed by the General Partner and the Borrower with the Securities and Exchange Commission on June 11, 2022.

Since the consummation of the Mergers and the transactions to be effected in connection with the consummation thereof (collectively with the Mergers, the “Transactions”) are not permitted under the terms of the Credit Agreement and would result in an Event of Default under Section 8.18 of the Credit Agreement if not consented to by the Lenders in advance, the Borrower has requested that the Lenders consent to the Transactions. Accordingly, pursuant to Section 9.2 of the Credit Agreement, the undersigned Lenders hereby consent to the Transactions including permitting the Mergers under Section 7.12 of the Credit Agreement and the lack of a listing under the New York Stock Exchange as specified in Section 6.18 and 7.10 of the Credit Agreement, and agree that no Event of Default shall occur under Section 8.18 of the Credit Agreement as a result of the consummation of the Transactions, so long as the following conditions are satisfied substantially concurrently with consummation of the Transactions:

(a) the Borrower shall have caused Prologis OP to provide a guaranty of the Borrower’s obligations under the Loan Documents in replacement of the Guaranty from the General Partner, which guaranty from Prologis OP shall be substantially similar to the guaranty provided by Prologis OP under the Global Senior Credit Agreement dated as of April 15, 2021, as amended, among Prologis OP, various affiliates of Prologis OP, various lenders and agents, and Bank of America, N.A., as Global Administrative Agent (the “Prologis Global Credit Agreement”);

 

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(b) all outstanding Revolving Loans and Competitive Bid Loans shall be repaid in full in connection with the Merger, either any Facility Letters of Credit shall have been cancelled and returned or any outstanding Facility Letter of Credit Exposure shall be cash collateralized (or otherwise addressed in a manner acceptable to the Issuing Banks), and the Borrower shall have permanently terminated all of the Revolving Credit Commitments under and with respect to the Revolving Credit Facility such that the Revolving Credit Commitments shall be reduced to zero; and

(c) the Administrative Agent and each Initial New Term Loan Lender shall have received and be satisfied with all documentation and other information concerning the Prologis Parties that the Administrative Agent or any applicable Initial New Term Loan Lender reasonably requests in order to comply with its obligations under applicable “know your customer” requirements, Sanctions laws, and Anti-Corruption Laws, including the Patriot Act and the Beneficial Ownership Regulation.

In addition, in connection with the Mergers, the Borrower has requested that the Lenders consent to the replacement of the covenants set forth in Article VII of the Credit Agreement and the related definitions with the covenants set forth in Articles X and XI and the related definitions set forth in the Prologis Global Credit Agreement, with agreed-upon adjustments to continue existing financial reporting and non-financial covenants applicable to the Borrower (the “Covenant Replacement”), replace Section 8.18 of the Credit Agreement with the Change of Control definition from the Prologis Global Credit Agreement, but retaining clause (e) of such Section 8.18 with Prologis OP being substituted for the General Partner (the “Change of Control Replacement”) and to amend the definitions of “Material Adverse Effect” and “Material Indebtedness”, Article VI, Sections 8.4, 8.6, 8.7, 8.8, 8.10, 8.11, 8.12, and 8.16 of the Credit Agreement and such other covenants and/or representations and agreements as deemed reasonably necessary by the Borrower and the Administrative Agent to substitute Prologis OP for the General Partner (collectively, the “Other Replacements”). Accordingly, pursuant to Section 9.2 of the Credit Agreement, the undersigned Lenders hereby consent to the Covenant Replacement, the Change of Control Replacement and the Other Replacements. The parties hereto agree that an amendment incorporating the Covenant Replacement, Change of Control Replacement and the Other Replacements will be entered into in a form reasonably acceptable to the Administrative Agent and the Borrower.

 

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SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE BORROWER AND THE GENERAL PARTNER

In order to induce the Lenders and Administrative Agent to enter into this Amendment No. 1, each of the General Partner and the Borrower represents and warrants to the Lenders and the Administrative Agent as follows:

(i) It has the power and authority and legal right to execute and deliver each of this Amendment No. 1 and the Notes described in Section 5D below (collectively, the “Amendment Documents”) and to perform its obligations thereunder and under the Credit Agreement as amended by this Amendment No. 1 (as so amended, the “Amended Credit Agreement”). The execution and delivery by it of the Amendment Documents and the performance of its obligations thereunder and under the Amended Credit Agreement have been duly authorized by proper proceedings, and the Amendment Documents and the Amended Credit Agreement constitute legal, valid and binding obligations of, respectively, the General Partner or the Borrower enforceable against such entity in accordance with their terms, except as enforceability may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity;

(ii) Neither the execution and delivery by it of the Amendment Documents, nor the consummation of the transactions therein contemplated or contemplated in the Amended Credit Agreement, nor performance of the provisions thereof or of the Amended Credit Agreement will violate any law, rule, regulation, order, writ, judgment, injunction, decree or award binding on, respectively, the General Partner or the Borrower or any of such entity’s Material Subsidiaries or such entity’s or any Material Subsidiary’s articles of incorporation, by-laws, certificate of limited partnership or partnership agreement or the provisions of any indenture, instrument or agreement to which such entity or any of its Material Subsidiaries is a party or is subject, or by which it, or its Property, is bound, or conflict with or constitute a default thereunder, or result in the creation or imposition of any Lien in, of or on the Property of such entity or a Material Subsidiary pursuant to the terms of any such indenture, instrument or agreement other than any violation, conflict, default or creation of a Lien under any indenture, instrument or agreement which could not reasonably be expected to result in a Material Adverse Effect. No order, consent, approval, license, authorization, or validation of, or filing, recording or registration with, or exemption by, any governmental or public body or authority, or any subdivision thereof, is required to authorize, or is required in connection with the execution and delivery of the Amendment Documents or the performance of, or the legality, validity, binding effect or enforceability of, any of the Amendment Documents or the Amended Credit Agreement;

(iii) It is duly organized, validly existing and in good standing under the laws of the State of Indiana, with its principal place of business in Indianapolis, Indiana and is duly qualified as a foreign corporation or partnership, properly licensed (if required), in good standing and has all requisite authority to conduct its business in each jurisdiction in which its business is conducted, except to the extent the failure to be in good standing, or to be so qualified or licensed, or have such authority, could not, in the aggregate, reasonably be expect to have a Material Adverse Effect;

(iv) Each of the representations and warranties made by the Borrower and the General Partner in or pursuant to the Loan Documents are true and correct in all material respects (or, in the case of any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, true and correct (after giving effect to any qualification therein) in all respects) on and as of the Amendment Effective Date as if made on and as of such date except for representations and warranties expressly stated to relate to a specific earlier date, in which case such representations and warranties were true and correct in all material respects (or, in the case of any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, true and correct (after giving effect to any qualification therein) in all respects) as of such earlier date; and

 

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(v) No Default or Unmatured Default has occurred and is continuing on the Amendment Effective Date and after giving effect to this Amendment No. 1.

SECTION 4. REAFFIRMATION OF GUARANTY

Each of the General Partner and the undersigned Subsidiary Guarantors has read this Amendment No. 1 and consents to the terms hereof and further hereby confirms and agrees that, notwithstanding the effectiveness of this Amendment No. 1, the obligations of the General Partner and such Subsidiary Guarantor under each of the Loan Documents to which the General Partner and such Subsidiary Guarantor is a party shall not be impaired and each of the Loan Documents to which the General Partner and such Subsidiary Guarantor is a party is, and shall continue to be, in full force and effect and is hereby confirmed and ratified in all respects, and shall extend to the New Term Loans made hereunder.

Each of the General Partner, the Subsidiary Guarantors and the Borrower hereby acknowledges and agrees that each reference to the “Credit Agreement” in the defined term “Obligations” under, and as defined in, the Amended and Restated Guaranty and each Subsidiary Guaranty, each dated as of March 26, 2021, by and among the General Partner, the Subsidiary Guarantors, and the Administrative Agent will be understood to refer to the Credit Agreement (as amended hereby).

SECTION 5. CONDITIONS TO EFFECTIVENESS

This Amendment No. 1 shall become effective as of the date hereof (the “Amendment Effective Date”), subject to the satisfaction (or waiver by the Administrative Agent and each Lender) of the following conditions precedent:

A. the Borrower, the General Partner, each Subsidiary Guarantor, the Administrative Agent, and each Lender (including each New Term Loan Lender) shall have indicated their consent hereto by the execution and delivery of the signature pages hereof to the Administrative Agent;

B. the Administrative Agent shall have received a certificate of a Authorized Officer of the Borrower and the General Partner (i) either confirming that there have been no changes to their organizational documents since March 26, 2021, or if there have been changes to their organizational documents since such date, certifying as to such changes, and (ii) certifying as to authorizing resolutions, good standing and incumbency of officers with respect to this Amendment No. 1 and the transactions contemplated hereby;

C. the Administrative Agent shall have received all reasonable, documented out-of-pocket costs and expenses incurred in connection with this Amendment No. 1 for which the Borrower is responsible pursuant to Section 10.6 of the Credit Agreement and for which invoices have been presented at least one Business Day prior to the Amendment Effective Date (including the reasonable fees and expenses of legal counsel to the Administrative Agent for which the Borrower agrees it is responsible pursuant to Section 10.6 of the Credit Agreement);

 

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D. execution and delivery to the Administrative Agent of a Note made by the Borrower in favor of each New Term Loan Lender that requests a Note in an amount equal to its New Term Loan Commitment hereunder;

E. delivery to the Administrative Agent by Alston & Bird LLP, as counsel to the Borrower and the General Partner, of an opinion addressed to the Lenders and the Administrative Agent in form and substance reasonably satisfactory to the Administrative Agent;

F. payment by the Borrower of any compensation agreed upon in writing by the Borrower to the New Term Loan Lenders and the Administrative Agent due and payable on the Amendment Effective Date in respect of the New Term Loan Commitments;

G. each of the representations and warranties made by the Borrower in or pursuant to the Loan Documents are true and correct in all material respects (or, in the case of any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, true and correct (after giving effect to any qualification therein) in all respects) on and as of the Amendment Effective Date as if made on and as of such date except for representations and warranties expressly stated to relate to a specific earlier date, in which case such representations and warranties were true and correct in all material respects (or, in the case of any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, true and correct (after giving effect to any qualification therein) in all respects) as of such earlier date;

H. both before and after giving effect to the New Term Loan Commitments (1) no Default shall exist on the Amendment Effective Date before or after giving effect to the New Term Loan Commitments; (2) both before and after giving effect to the making of any New Term Loans, each of the conditions set forth in Section 5.2 of the Credit Agreement shall be satisfied, unless waived by each New Term Loan Lender; and (3) the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.20 of the Credit Agreement after giving effect to such New Term Loan Commitments as of the last day of the most recently ended fiscal quarter for which a compliance certificate has been delivered pursuant to Section 7.1(v) of the Credit Agreement; and

I. the Administrative Agent shall have received a certificate of an Authorized Officer of the Borrower certifying that the conditions contained in Section 5H above have been satisfied.

 

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SECTION 6. MISCELLANEOUS

A. Reference to and Effect on the Credit Agreement and the Other Loan Documents.

(i) On and after the effective date of this Amendment No. 1, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import referring to the Credit Agreement and each reference in the other Loan Documents to the “Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement shall mean and be a reference to the Amended Credit Agreement. This Amendment No. 1 shall be deemed to be a “Loan Document” and an “Additional Credit Extension Amendment” under the Credit Agreement.

(ii) Except as specifically amended by this Amendment No. 1, the Credit Agreement and the other Loan Documents shall remain in full force and effect and are hereby ratified and confirmed.

(iii) The execution, delivery and performance of this Amendment No. 1 shall not, except as expressly provided herein, constitute a waiver of any provision of, or operate as a waiver of any right, power or remedy of the Administrative Agent or any Lender under the Credit Agreement or any of the other Loan Documents.

B. Headings. Section and subsection headings in this Amendment No. 1 are included herein for convenience of reference only and shall not constitute a part of this Amendment No. 1 for any other purpose or be given any substantive effect.

C. Applicable Law. THIS AMENDMENT NO. 1 AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

D. Counterparts; Effectiveness. This Amendment No. 1 may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument; signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document. Delivery of an executed counterpart of a signature page to this Amendment No. 1 by telecopy or other electronic means in accordance with Section 15.2 of the Credit Agreement shall be effective as delivery of a manually executed counterpart of this Amendment No. 1.

E. Jurisdictions; Immunities; Waiver of Jury Trial. The provisions of Sections 10.13 and 10.14 of the Credit Agreement shall apply to this Amendment No. 1 and are hereby incorporated by reference.

F. Successors. The provisions of this Amendment No. 1 shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

[Signature Pages Follow]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.

 

BORROWER:				DUKE REALTY LIMITED PARTNERSHIP, an Indiana limited partnership
				By:		DUKE REALTY CORPORATION, an Indiana corporation, its General Partner
				By:		/s/ Mark A. Denien
						Name:		Mark A. Denien
						Title:		Executive Vice President and Chief Financial Officer
GENERAL PARTNER:				DUKE REALTY CORPORATION, an Indiana corporation
				By:		/s/ Mark A. Denien
						Name:		Mark A. Denien
						Title:		Executive Vice President and Chief Financial Officer

[Signature Page to Amendment No. 1 to Amended and Restated Revolving Credit Agreement]

SUBSIDIARY GUARANTORS:				DUKE REALTY OHIO, an Indiana general partnership
				By:		Duke Realty Limited Partnership, an Indiana limited partnership, its managing partner
				By:		Duke Realty Corporation, an Indiana Corporation, its general partner
				By:		/s/ Mark A. Denien
				Name:		Mark A. Denien
				Title:		Executive Vice President and Chief Financial Officer
				DUKE CONSTRUCTION LIMITED PARTNERSHIP, an Indiana limited partnership
				By:		Duke Business Centers Corporation, an Indiana corporation, its general partner
				By:		/s/ Mark A. Denien
				Name:		Mark A. Denien
				Title:		Executive Vice President and Chief Financial Officer

[Signature Page to Amendment No. 1 to Amended and Restated Revolving Credit Agreement]

LENDERS:				JPMORGAN CHASE BANK, N.A., Individually and as Administrative Agent
				By:		/s/ Cody A. Canafax
						Name: Cody A. Canafax
						Title: Vice President

[Signature Page to Amendment No. 1 to Amended and Restated Revolving Credit Agreement]

[Signature Page to Amendment No. 1 to Amended and Restated Revolving Credit Agreement]

[Signature Page to Amendment No. 1 to Amended and Restated Revolving Credit Agreement]

 

[Signature Page to Amendment No. 1 to Amended and Restated Revolving Credit Agreement]

[Signature Page to Amendment No. 1 to Amended and Restated Revolving Credit Agreement]

[Signature Page to Amendment No. 1 to Amended and Restated Revolving Credit Agreement]

[Signature Page to Amendment No. 1 to Amended and Restated Revolving Credit Agreement]

[Signature Page to Amendment No. 1 to Amended and Restated Revolving Credit Agreement]

[Signature Page to Amendment No. 1 to Amended and Restated Revolving Credit Agreement]

[Signature Page to Amendment No. 1 to Amended and Restated Revolving Credit Agreement]

[Signature Page to Amendment No. 1 to Amended and Restated Revolving Credit Agreement]

[Signature Page to Amendment No. 1 to Amended and Restated Revolving Credit Agreement]

[Signature Page to Amendment No. 1 to Amended and Restated Revolving Credit Agreement]

Execution Version

<Exhibit A>

AMENDED AND RESTATED

REVOLVING CREDIT <AND TERM LOAN >AGREEMENT

DATED AS OF MARCH 26, 2021

AMONG

DUKE REALTY LIMITED PARTNERSHIP

AS BORROWER,

DUKE REALTY CORPORATION

AS GENERAL PARTNER AND GUARANTOR,

JPMORGAN CHASE BANK, N.A.

AS ADMINISTRATIVE AGENT AND LENDER,

JPMORGAN CHASE BANK, N.A.

AND

WELLS FARGO SECURITIES, LLC

AS JOINT LEAD ARRANGERS AND JOINT BOOK RUNNERS,

THE BANK OF NOVA SCOTIA

AND

REGIONS CAPITAL MARKETS, A DIVISION OF REGIONS BANK,

AS JOINT LEAD ARRANGERS

AND

WELLS FARGO BANK, NATIONAL ASSOCIATION,

AS SYNDICATION AGENT

AND

THE BANK OF NOVA SCOTIA, REGIONS BANK,

MORGAN STANLEY SENIOR FUNDING, INC., BARCLAYS BANK PLC,

CITIBANK, N.A., PNC BANK, NATIONAL ASSOCIATION,

ROYAL BANK OF CANADA, TRUIST BANK, AND

U.S. BANK NATIONAL ASSOCIATION,

AS DOCUMENTATION AGENTS< FOR THE REVOLVING CREDIT FACILITY>

<THE BANK OF NOVA SCOTIA, REGIONS BANK,

MORGAN STANLEY SENIOR FUNDING, INC.,

PNC BANK NATIONAL ASSOCIATION AND U.S. BANK NATIONAL ASSOCIATION,

AS DOCUMENTATION AGENTS FOR THE INITIAL NEW TERM LOAN FACILITY>

AND

J.P. MORGAN SECURITIES LLC,

AS SUSTAINABILITY STRUCTURING AGENT

TABLE OF CONTENTS

 

				Page
ARTICLE I DEFINITIONS; RULES OF INTERPRETATION					1
1.1.		Definitions			1
1.2.		Classification of Loans and Borrowings			35<38>
1.3.		Terms Generally			35<38>
1.4.		Interest Rates; LIBOR<Benchmark> Notification			36<39>
1.5.		Letter of Credit Amounts			37<40>
1.6.		Divisions			37<40>
ARTICLE II THE CREDIT					37<40>
2.1.		Commitments			37<40>
2.2.		Final Principal Payments			37<41>
2.3.		Loans			37<41>
2.4.		Applicable Margins			38<41>
2.5.		Facility Fee			38<42>
2.6.		Other Fees			38<42>
2.7.		Voluntary Reduction of Aggregate Revolving Credit Commitment Amount			38<42>
2.8.		Minimum Amount of Each Advance			39<42>
2.9.		Optional Principal Payments			39<43>
2.10.		Method of Selecting Types and Interest Periods for New Advances			39<43>
2.11.		Conversion and Continuation of Outstanding Advances			40<44>
2.12.		Changes in Interest Rate, Etc			40<44>
2.13.		Rates Applicable After Default			40<44>
2.14.		[Reserved]			41<45>
2.15.		Competitive Bid Loans			41<45>
2.16.		Method of Payment			45<49>
2.17.		Notes; Telephonic Notices			45<50>
2.18.		Interest Payment Dates; Interest and Fee Basis			46<50>
2.19.		Notification of Advances, Interest Rates and Prepayments			46<50>
2.20.		Lending Installations			46<51>
2.21.		Non-Receipt of Funds by the Administrative Agent			46<51>
2.22.		Usury			47<51>

 

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TABLE OF CONTENTS

(continued)

 

				Page
2.23.		Applications of Moneys Received			47<52>
2.24.		Defaulting Lenders			50<54>
2.25.		Incremental Loans			52<57>
ARTICLE III THE LETTER OF CREDIT SUBFACILITY					55<59>
3.1.		Obligations to Issue			55<59>
3.2.		Types and Amounts			55<59>
3.3.		Conditions			56<60>
3.4.		Procedure for Issuance of Facility Letters of Credit			56<61>
3.5.		Administration; Reimbursement by Revolving Credit Lenders			58<62>
3.6.		Reimbursement by Borrower			58<63>
3.7.		Obligations Absolute			59<63>
3.8.		Actions of Issuing Bank			59<64>
3.9.		Indemnification			60<64>
3.10.		Lenders’ Indemnification			60<65>
3.11.		Participation			61<65>
3.12.		Compensation for Facility Letters of Credit			61<66>
3.13.		Expiration after the Termination Date			62<66>
3.14.		Letter of Credit Collateral Account			62<66>
3.15.		Existing Letters of Credit			64<68>
ARTICLE IV CHANGE IN CIRCUMSTANCES					64<69>
4.1.		Yield Protection			64<69>
4.2.		Changes in Capital Adequacy Regulations			65<70>
4.3.		Availability of Types of Advances			66
<4.3.		Alternate Rate of Interest			70>
4.4.		Funding Indemnification			68<73>
4.5.		Payment Free of Taxes			68<74>
4.6.		Lender Statements; Survival of Indemnity			72<77>
4.7.		Replacement of Lenders under Certain Circumstances			72<78>
ARTICLE V CONDITIONS PRECEDENT					73<78>
5.1.		Effective Date			73<78>

 

ii

TABLE OF CONTENTS

(continued)

 

				Page
5.2.		Each Credit Extension			75<81>
ARTICLE VI REPRESENTATIONS AND WARRANTIES					76<81>
6.1.		Existence			76<81>
6.2.		Authorization and Validity			76<82>
6.3.		No Conflict; Government Consent			76<82>
6.4.		Financial Statements; Material Adverse Change			77<82>
6.5.		Taxes			77<82>
6.6.		Litigation and Guarantee Obligations			77<83>
6.7.		Subsidiaries			77<83>
6.8.		ERISA			78<83>
6.9.		Accuracy of Information			78<83>
6.10.		Margin Stock			78<83>
6.11.		Material Agreements			78<83>
6.12.		Compliance With Laws			78<84>
6.13.		Ownership of Properties			78<84>
6.14.		Investment Company Act			79<84>
6.15.		[Reserved]			79<84>
6.16.		Solvency			79<84>
6.17.		Insurance			79<84>
6.18.		REIT Status			79<84>
6.19.		Environmental Matters			79<85>
6.20.		Unencumbered Assets			80<86>
6.21.		Plan Assets; Prohibited Transactions			82<87>
6.22.		Anti-Corruption Laws and Sanctions			82<88>
6.23.		Affected Financial Institutions			82<88>
ARTICLE VII COVENANTS					82<88>
7.1.		Financial Reporting			83<88>
7.2.		Use of Proceeds			85<90>
7.3.		Notice of Default			85<91>
7.4.		Conduct of Business			86<91>

 

iii

TABLE OF CONTENTS

(continued)

 

				Page
7.5.		Taxes			86<91>
7.6.		Insurance			86<92>
7.7.		Compliance with Laws			86<92>
7.8.		Maintenance of Properties			86<92>
7.9.		Inspection			86<92>
7.10.		Maintenance of Status			87<92>
7.11.		Dividends			87<92>
7.12.		Merger; Sale of Assets			87<93>
7.13.		[Reserved]			88<93>
7.14.		[Reserved]			88<93>
7.15.		Liens			88<94>
7.16.		Affiliates			89<95>
7.17.		Interest Rate Hedging			89<95>
7.18.		Subsidiary Guaranty			90<95>
7.19.		[Reserved]			90<96>
7.20.		Indebtedness and Cash Flow Covenants			90<96>
7.21.		Environmental Matters			91<97>
7.22.		[Reserved]			92<97>
7.23.		Borrower’s Partnership Agreement			92<98>
7.24.		Plan Assets			92<98>
7.25.		Notice of Rating Change			92<98>
ARTICLE VIII DEFAULTS					92<98>
ARTICLE IX ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES					95<101>
9.1.		Acceleration			95<101>
9.2.		Amendments			96<101>
9.3.		Preservation of Rights			98<104>
ARTICLE X GENERAL PROVISIONS					98<104>
10.1.		Survival of Representations			98<104>
10.2.		Governmental Regulation			98<104>
10.3.		Headings			98<104>

 

iv

TABLE OF CONTENTS

(continued)

 

				Page
10.4.		Entire Agreement			99<104>
10.5.		Several Obligations; Benefits of this Agreement			99<104>
10.6.		Expenses; Indemnification			99<105>
10.7.		Numbers of Documents			100<106>
10.8.		Accounting			100<106>
10.9.		Severability of Provisions			101<106>
10.10.		Nonliability of Lenders			101<107>
10.11.		Publicity			101<107>
10.12.		CHOICE OF LAW			101<107>
10.13.		CONSENT TO JURISDICTION			102<107>
10.14.		WAIVER OF JURY TRIAL			102<108>
10.15.		Agent Responsibilities			102<108>
10.16.		USA PATRIOT ACT			103<108>
10.17.		Service of Process			103<108>
10.18.		Acknowledgement and Consent to Bail-In of Affected Financial Institutions			103<109>
10.19.		Acknowledgement Regarding Any Supported QFCs			103<109>
ARTICLE XI THE ADMINISTRATIVE AGENT AND AGREEMENTS AMONG LENDERS					104<110>
11.1.		Administrative Agent			104<110>
11.2.		Powers			104<110>
11.3.		General Immunity			105<111>
11.4.		No Responsibility for Loans, Recitals, Etc.			105<111>
11.5.		Action on Instructions of Lenders			106<111>
11.6.		Employment of Sub-Agents			106<112>
11.7.		Reliance on Documents; Counsel			106<112>
11.8.		Administrative Agent’s Reimbursement and Indemnification			107<112>
11.9.		Rights as a Lender			108<114>
11.10.		Lender Credit Decision			109<114>
11.11.		Successor Administrative Agent			109<115>
11.12.		Notice of Defaults			110<116>

 

v

TABLE OF CONTENTS

(continued)

 

				Page
11.13.		Copies of Documents			110<116>
11.14.		No Other Duties, Etc.			110<116>
11.15.		Certain ERISA Matters			110<116>
11.16.		No Third Party Beneficiaries			112<118>
11.17.		Survival			112<118>
ARTICLE XII SETOFF; RATABLE PAYMENTS					112<118>
12.1.		Setoff			112<118>
12.2.		Ratable Payments			112<118>
ARTICLE XIII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS					113<119>
13.1.		Benefit of Agreement			113<119>
13.2.		Assignments			113<119>
13.3.		Participations			116<122>
13.4.		Designation of Lender to Make Competitive Bid Loans			117<123>
13.5.		Dissemination of Information			117<123>
13.6.		Tax Treatment			118<124>
13.7.		Confidentiality			118<124>
ARTICLE XIV NOTICES					118<125>
14.1.		Notices; Effectiveness; Electronic Communication			118<125>
14.2.		Change of Address, Etc.			121<128>
ARTICLE XV COUNTERPARTS					121<128>
15.1.		Counterparts; Integration; Effectiveness			121<128>
15.2.		Electronic Execution of Assignments			121<128>
ARTICLE XVI TRANSITIONAL ARRANGEMENTS					122<129>
16.1.		Existing Credit Agreement Superseded			122<129>
16.2.		Interest and Fees Under Existing Credit Agreements			123<130>
16.3.		Existing Guaranties			123<130>

 

vi

Exhibits

 

Exhibit A		-		Pricing Schedule
Exhibit B-1		-		Form of Revolving Credit Note
Exhibit B-2		-		Form of Competitive Bid Note
Exhibit C-1		-		Form of Competitive Bid Quote Request
Exhibit C-2		-		Form of Invitation for Competitive Bid Quotes
Exhibit C-3		-		Form of Competitive Bid Quote
Exhibit D		-		[Reserved]
Exhibit E		-		Loan/Credit Related Money Transfer Instruction
Exhibit F		-		Compliance Certificate
Exhibit H		-		Assignment and Assumption Agreement
Exhibit I		-		Designation Agreement
Exhibit J		-		[Reserved]
Exhibit K		-		Form of Subsidiary Guaranty
Exhibit L-1		-		U.S. Tax Certificate (For Non-U.S. Lenders that are not Partnerships for U.S. Federal Income Tax Purposes)
Exhibit L-2		-		U.S. Tax Certificate (For Non-U.S. Lenders that are not Partnerships for U.S. Federal Income Tax Purposes)
Exhibit L-3		-		U.S. Tax Certificate (For Non-U.S. Participants that are Partnerships for U.S. Federal Income Tax Purposes)
Exhibit L-4		-		U.S. Tax Certificate (For Non-U.S. Participants that are Partnerships for U.S. Federal Income Tax Purposes)

Schedules

 

Schedule SG		-		Subsidiary Guarantors
Schedule EG		-		Eligible Ground Leases
Schedule L		-		Revolving Credit Commitments of Lenders; Letter of Credit Commitments of Issuing Banks
Schedule 1		-		Subsidiaries and Other Investments
Schedule 2		-		Indebtedness and Liens
Schedule 3		-		Unencumbered Assets
Schedule 3.15		-		Existing Letters of Credit
Schedule 6.19		-		Environmental Matters

 

vii

AMENDED AND RESTATED

REVOLVING CREDIT< AND TERM LOAN> AGREEMENT

This Agreement, dated as of March 26, 2021, is among Duke Realty Limited Partnership, an Indiana limited partnership (the “Borrower”), Duke Realty Corporation, an Indiana corporation (the “General Partner” and the “Guarantor”), JPMorgan Chase Bank, N.A., as Lead Left Arranger (“JPMCB”) and Wells Fargo Securities, LLC, as Lead Right Arranger (together with JPMCB, the “Arrangers”), JPMCB as a Lender and not individually, but as Administrative Agent, and the several banks, financial institutions and other entities from time to time parties to this Agreement as Lenders.

RECITALS

A. The Borrower is primarily engaged in the business of purchasing, developing, owning, operating, leasing and managing industrial (including cold storage facilities, truck terminals, trailer lots and storage yards), medical office and office properties.

B. The General Partner, the Borrower’s sole general partner, is listed on the New York Stock Exchange and is qualified as a real estate investment trust. As of December 31, 2020, the General Partner owned approximately 99.1% of the total partnership units in the Borrower and various limited partners in the Borrower own approximately 0.9% of such partnership units.

C. The Borrower, the General Partner, the Administrative Agent, and certain of the Lenders are parties to an Amended and Restated Revolving Credit Agreement dated as of October 11, 2017 (as previously amended, the “Existing Credit Agreement”) pursuant to which the Lenders that are parties thereto agreed to make revolving credit loans and otherwise extend credit to the Borrower.

D. The Borrower and the General Partner have requested that the Lenders amend and restate the Existing Credit Agreement as provided herein.

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto amend and restate in their entirety the Existing Credit Agreement as follows:

ARTICLE I

DEFINITIONS; RULES OF INTERPRETATION

1.1. Definitions.

As used in this Agreement:

“ABR Advance” means an Advance which bears interest at the ABR Rate.

“ABR Applicable Margin” means, as of any date, the Applicable Margin in effect on such date with respect to ABR Advances and ABR Loans.

“ABR Loan” means a Loan which bears interest at the ABR Rate.

“ABR Rate” means, for any day, a rate per annum equal to (i) the Alternate Base Rate for such day plus (ii) ABR Applicable Margin for such day, in each case changing when and as the Alternate Base Rate changes.

“Absolute Interest Period” means, with respect to a Competitive Bid Loan made at an Absolute Rate, a period of one, two, three or six months as requested by the Borrower in a Competitive Bid Quote Request and confirmed by a Revolving Credit Lender in a Competitive Bid Quote but in no event extending beyond the Revolving Credit Termination Date. If an Absolute Interest Period would end on a day which is not a Business Day, such Absolute Interest Period shall end on the next succeeding Business Day.

“Absolute Rate” means a fixed rate of interest (rounded to the nearest 1/100 of 1%) for an Absolute Interest Period with respect to a Competitive Bid Loan offered by a Revolving Credit Lender and accepted by the Borrower at such rate.

“Acquisition Asset” means, as of any date of determination, any improved, income- producing Project that has been owned by the Borrower, the General Partner or their Subsidiaries for fewer than twenty-four (24) months or the Borrower’s pro rata share of any improved, income-producing real estate asset owned by an Investment Affiliate that is operated or intended to be operated as an office, medical office, industrial (including cold storage facilities, truck terminals, trailer lots and storage yards) or retail property that has been owned by such Investment Affiliate for fewer than twenty-four (24) months, unless the Borrower has made a one-time election to treat such Project or income-producing real estate asset as a Stabilized Property (and no longer treat such Project or income-producing real estate asset as an Acquisition Asset).

“Additional Credit Extension Amendment” means an amendment to this Agreement providing for any New Term Loans or New Revolving Credit Commitments, as applicable, which shall be consistent with the applicable provisions of this Agreement relating to New Term Loans or New Revolving Credit Commitments and otherwise reasonably satisfactory to the Administrative Agent, the Borrower and the New Revolving Lenders or New Term Loan Lenders, as applicable.

<“Adjusted Term SOFR Rate” means, for any Term Benchmark Interest Period, an interest rate per annum equal to (a) the Term SOFR Rate for such Term Benchmark Interest Period, plus (b) 0.10%; provided that if the Adjusted Term SOFR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.>

“Administrative Agent” means JPMCB, together with its affiliates, in its capacity as administrative agent for the Lenders pursuant to Article XI, and not in its individual capacity as a Lender, and any successor Administrative Agent appointed pursuant to Article XI.

 

2

“Advance” means a borrowing hereunder consisting of the aggregate amount of the several Loans (including Competitive Bid Loans) of a specific Class made by some or all of the Lenders of the applicable Facility to the Borrower of the same Type and, in the case of LIBOR<Term Benchmark> Advances, for the same Interest Period; provided that if any such borrowing (or portion thereof) is combined or subdivided pursuant to a Conversion/Continuation Notice, the term “Advance” shall refer to the combined principal amount resulting from such combination or to each of the separate principal amounts resulting from such subdivision, as the case may be.

“Adjusted EBITDA” means EBITDA less Capital Expenditure Reserve Amount.

“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.

“Affiliate” of any Person means any other Person directly or indirectly controlling, controlled by or under common control with such Person. A Person shall be deemed to control another Person if the controlling Person owns 15% or more of any class of voting securities (or other ownership interests) of the controlled Person or possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of the controlled Person, whether through ownership of stock, by contract or otherwise. In no event shall the Administrative Agent or any Lender be deemed to be an Affiliate of the Borrower.

“Agent Parties” is defined in Section 14.1(b).

“Aggregate Revolving Credit Commitment” means the aggregate of the Revolving Credit Commitments of all the Revolving Credit Lenders, which initially shall be $1,200,000,000, and which may be increased in accordance with Section 2.25.

“Agreement” means this Amended and Restated Revolving Credit Agreement, as it may be amended, restated, amended and restated or modified and in effect from time to time.

“Allocated Facility Amount” means, at any time, the sum of all then outstanding Advances under the Revolving Facility and the then outstanding Facility Letter of Credit Obligations.

“Alternate Base Rate” means, for any day, a rate of interest per annum equal to the highest<greatest > of (i<a>) the Prime Rate in effect on such day, (ii<b >) the sum of the NYFRB Rate in effect on such day plus 0.5% per annum<¹⁄₂ of 1%> and (iii<c>) the LIBOR Base<Adjusted Term SOFR> Rate for a one month LIBOR<Term Benchmark> Interest Period on<as published two U.S. Government Securities Business Days prior to> such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%,<; > provided that the LIBOR Base<for the purpose of this definition, the Adjusted Term SOFR> Rate for any day shall be based on the LIBO Screen<Term SOFR Reference> Rate at approximately 11:00<5:00> a.m. London<Chicago> time on such day, subject to the interest rate floors set forth therein< (or any amended publication time for the Term SOFR Reference Rate, as specified by the CME Term SOFR Administrator in the Term SOFR Reference Rate methodology)>. Any change in the Alternate Base Rate due to a change in the Prime Rate, the NYFRB Rate or the LIBOR Base<Adjusted Term SOFR> Rate shall be effective from and including the effective date of

 

3

such change in the Prime Rate, the NYFRB Rate or the LIBOR Base<Adjusted Term SOFR> Rate, respectively. If the Alternate Base Rate is being used as an alternate rate of interest pursuant to Section 4.3 hereof (for the avoidance of doubt, only until the Benchmark Replacement has been determined pursuant to Section 4.3(b)), then the Alternate Base Rate shall be the greater of clause<clauses> (i<a>) and (ii<b >) above and shall be determined without reference to clause (iii<c>) above. For the avoidance of doubt, if the Alternate Base Rate shall<as determined pursuant to the foregoing would> be less than 1<1.0>%, such rate shall be deemed to be 1<1.0>% for purposes of this Agreement.

<“Amendment No. 1” means Amendment No. 1 to this Agreement dated as of May , 2022.>

“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Borrower or any of its Subsidiaries from time to time concerning or relating to bribery, money-laundering or corruption.

“Applicable Laws” is defined in Section 6.20.2.

“Applicable Margin” means the applicable margin set forth in the table on Exhibit A used in calculating the interest rate applicable to the various Types and Classes of Advances which shall vary from time to time in accordance with the Borrower’s long term unsecured debt ratings and as otherwise set forth on Exhibit A.

“Approved Fund” is defined in Section 13.2.

“Arrangers” is defined in the introductory paragraph hereto.

“Article” means an article of this Agreement unless another document is specifically referenced.

“Assets Under Development” means, as of any date of determination, any Project owned by the Borrower or any of its Subsidiaries on which the construction of a new income-producing building or buildings has been commenced and is continuing or the Borrower’s pro rata share of any real estate asset owned by an Investment Affiliate that is operated or intended to be operated as an office, medical office, industrial (including cold storage facilities, truck terminals, trailer lots and storage yards) or retail property and on which the construction of new income-producing building or buildings has been commenced and is continuing. Any such Project or real estate asset shall be treated as an Asset Under Development until the earlier of eighteen (18) months after the date of completion of construction or the achievement of an occupancy rate of eighty- five percent (85%), unless the Borrower has made a one-time election to treat such Project or

real estate asset as a Stabilized Property (and no longer treat such Project or real estate asset as an Asset Under Development).

“Assignee” is defined in Section 13.2.

“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 13.2), and accepted by the Administrative Agent, in the form of Exhibit H or any other form (including electronic records generated by the use of an electronic platform) approved by the Administrative Agent.

 

4

“Authorized Officer” means any of James B. Connor, Ann C. Dee, Mark A. Denien, Christopher L. Donovan, Neal A. Lewis or Mark J. Milnamow acting singly. The list of Authorized Officers may be changed by a notice to Administrative Agent from one of the Authorized Officers.

“Available Tenor” means, as of any date of determination and with respect to the then- current Benchmark, as applicable, any tenor for such Benchmark< (or component thereof)> or payment period for interest calculated with reference to such Benchmark< (or component thereof)>, as applicable, that is or may be used for determining the length of an <Term Benchmark >Interest Period< for any term rate or otherwise, for determining any frequency of making payments of interest calculated> pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “<Term Benchmark >Interest Period” pursuant to clause (f<e >) of Section 4.3.

“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.

“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

“Bankruptcy Event” is defined in the definition of “Defaulting Lender”.

“Benchmark” means, initially, <with respect to any Term Benchmark Loan, >the LIBOR<Term SOFR> Rate; provided that if a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, and its<the> related Benchmark Replacement Date have occurred with respect to the LIBOR<Term SOFR> Rate or the then- current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (b) or clause (c) of Section 4.3.

“Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date:

(1) the sum of: (a) Term SOFR and (b) the related Benchmark Replacement Adjustment;

(2) the sum of: (a) Daily Simple SOFR and (b) the related Benchmark Replacement Adjustment;

 

5

(3) the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for dollar- denominated syndicated credit facilities at such time <in the United States >and (b) the related Benchmark Replacement Adjustment;

provided that, in the case of clause (1), such Unadjusted Benchmark Replacement is displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion; provided further that, notwithstanding anything to the contrary in this Agreement or in any other Loan Document, upon the occurrence of a Term SOFR Transition Event, and the delivery of a Term SOFR Notice, on the applicable Benchmark Replacement Date the “Benchmark Replacement” shall revert to and shall be deemed to be the sum of (a) Term SOFR and (b) the related Benchmark Replacement Adjustment, as set forth in clause (1) of this definition (subject to the first proviso above).<. >If the Benchmark Replacement as determined pursuant to clause (1), (2) or (3) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.

“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable< Term Benchmark> Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement:

(1) for purposes of clauses (1) and (2) of the definition of “Benchmark Replacement,” the first alternative set forth in the order below that can be determined by the Administrative Agent:

(a) the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that has been selected or recommended by the Relevant Governmental Body for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for the applicable Corresponding Tenor;

(b) the spread adjustment (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that would apply to the fallback rate for a derivative transaction referencing the ISDA Definitions to be effective upon an index cessation event with respect to such Benchmark for the applicable Corresponding Tenor; and

(2) for purposes of clause (3) of the definition of “Benchmark Replacement,”<,> the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining

 

6

such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date <and/>or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for dollar-denominated syndicated credit facilities;

provided that, in the case of clause (1) above, such adjustment is displayed on a screen or other information service that publishes such Benchmark Replacement Adjustment from time to time as selected by the Administrative Agent in its reasonable discretion< at such time>.

“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement< and/or any Term Benchmark Loan>, any technical, administrative or operational changes (including changes to the definition of “Alternate Base Rate,” the definition of “Business Day,” the definition of “<U.S. Government Securities Business Day,” the definition of “Term Benchmark >Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides <(>in its reasonable discretion<consultation with the Borrower)> may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides< (in consultation with the Borrower)> is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).

“Benchmark Replacement Date” means<, with respect to any Benchmark,> the earliest to occur of the following events with respect to the<such> then-current Benchmark:

(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof);< or>

(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the< first> date of<on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be no longer representative; provided, that such non-representativeness will be determined by reference to> the public<most recent> statement or publication of information referenced therein;

(3) in the case of a Term SOFR Transition Event, the date that is thirty (30) days after the date a Term SOFR Notice is provided to the Lenders and the Borrower pursuant to Section 4.3(c); or<such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.>

 

7

(4) in the case of an Early Opt-in Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, so long as the Administrative Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders comprising the Required Lenders.

For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).

“Benchmark Transition Event” means<, with respect to any Benchmark,> the occurrence of one or more of the following events with respect to the<such> then-current Benchmark:

(1) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);

(2) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the NYFRB, <the CME Term SOFR Administrator, >an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), <in each case, >which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely,<;> provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or

(3) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer<, or as of a specified future date will no longer be,> representative.

 

8

For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).

“Benchmark Unavailability Period” means<, with respect to any Benchmark,> the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced the<such > then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 4.3 and (y) ending at the time that a Benchmark Replacement has replaced the<such> then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 4.3.

“Beneficial Ownership Certification” means a certification regarding beneficial ownership or control as required by the Beneficial Ownership Regulation.

“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code to which Section 4975 of the Code applies, and (c) any Person whose assets include (for purposes of the Plan Asset Regulations or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.

“BHC Act Affiliate” of a party means an “affiliate’ (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.

“Borrower” is defined in the introductory paragraph hereto, and shall include successors and permitted assigns.

“Borrowing Date” means a date on which an Advance is made hereunder. “Borrowing Notice” is defined in Section 2.10.

“Business Day” means (i) with respect to<,> any borrowing, payment or rate selection of LIBOR Advances, a day (other than a Saturday or <a >Sunday) on which banks generally are open< for business> in New York, New York for the conduct of substantially all of their commercial lending activities and on which dealings in United States dollars are carried on in the London interbank market and (ii) for all other purposes, a day (other than a Saturday or Sunday) on which banks generally are open in New York, New York for the conduct of substantially all of their commercial lending activities< City or Chicago>.

“Capital Expenditure Reserve Amount” means, for any quarter, $0.10 per square foot multiplied by the total square footage of all in-service Projects owned by the Borrower, the General Partner and their Subsidiaries as of the last day of such quarter, as publicly reported in the consolidated quarterly or annual financial statements of the General Partner, the Borrower and their Subsidiaries included in the General Partner’s filings with the SEC on Forms 10Q or 10K, divided by four.

 

9

“Capitalization Rate” means 5.75%.

“Capital Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person which is not a corporation and any and all warrants or options to purchase any of the foregoing.

“Capitalized Lease” of a Person means any lease of Property imposing obligations on such Person, as lessee thereunder, which are required in accordance with GAAP to be capitalized on a balance sheet of such Person.

“Capitalized Lease Obligations” of a Person means the amount of the obligations of such Person under Capitalized Leases which would be shown as a liability on a balance sheet of such Person prepared in accordance with GAAP.

“Cash Equivalents” means, as of any date, (i) securities issued or directly and fully guaranteed or insured by the United States Government or any agency or instrumentality thereof having maturities of not more than one year from such date, (ii) time deposits and certificates of deposit having maturities of not more than one year from such date and issued by any domestic commercial bank having (A) senior long-term unsecured debt rated at least A or the equivalent thereof by S&P, A or the equivalent thereof by Fitch or A2 or the equivalent thereof by Moody’s and (B) capital and surplus in excess of $500,000,000, and (iii) commercial paper rated at least A-2 or the equivalent thereof by S&P, at least A-2 or the equivalent thereof by Fitch or P-2 or the equivalent thereof by Moody’s and in any such case maturing within three hundred and sixty (360) days from such date.

“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law or governmental or quasi-governmental rule, regulation or treaty, (b) any change in any law or governmental or quasi-governmental rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

“Class” when used in reference to any Loan or Advance, refers to whether such Loan or the Loans comprising such Advance are Revolving Loans or< a tranche of> New Term Loans (if any).

“Closing Date” means the date of this Agreement.

 

10

<“CME Term SOFR Administrator” means CME Group Benchmark Administration Limited as administrator of the forward-looking term Secured Overnight Financing Rate (SOFR) (or a successor administrator).>

“Co-Agents” means the Co-Agents identified in the cover page to this Agreement.

“Code” means the Internal Revenue Code of 1986, as amended, reformed or otherwise modified from time to time.

“Commitment” means, with respect to each Lender, its Revolving Credit Commitment and/or its New Term Loan Commitment, as the context may require.

“Communications” is defined in Section 14.1(b).

“Competitive Bid Borrowing Notice” is defined in Section 2.15(f).

“Competitive Bid Lender” means a Revolving Credit Lender or Designated Lender which has a Competitive Bid Loan outstanding.

“Competitive Bid Loan” is a Loan made pursuant to Section 2.15 hereof.

“Competitive Bid Note” means the promissory note payable to the order of each Revolving Credit Lender in the form attached hereto as Exhibit B-2 to be used to evidence any Competitive Bid Loans which such Revolving Credit Lender elects to make (collectively, the “Competitive Bid Notes”).

“Competitive Bid Quote” means a response submitted by a Revolving Credit Lender to the Administrative Agent or the Borrower, as the case may be with respect to an Invitation for Competitive Bid Quotes in the form attached as Exhibit C-3.

“Competitive Bid Quote Request” means a written request from Borrower to Administrative Agent in the form attached as Exhibit C-1.

“Competitive LIBOR<Term Benchmark> Margin” means, with respect to any Competitive Bid Loan for a LIBOR<Term Benchmark> Interest Period, the percentage established in the applicable Competitive Bid Quote which is to be used to determine the interest rate applicable to such Competitive Bid Loan.

“Condemnation” is defined in Section 8.9.

“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

“Consolidated Secured Indebtedness” means, as of any date of determination, the sum of (a) the aggregate principal amount of all Indebtedness of the General Partner, the Borrower and their respective Subsidiaries outstanding at such date which is secured by a Lien on any asset of the General Partner, the Borrower or any of their respective Subsidiaries and (b) the excess, if

 

11

any, of (i) the aggregate principal amount of all Unsecured Indebtedness of the Subsidiaries of the General Partner or the Borrower over (ii) $5,000,000, determined on a consolidated basis in accordance with GAAP and (c) the General Partner’s and Borrower’s pro rata share of any secured debt in Investment Affiliates.

“Consolidated Total Indebtedness” means, as of any date of determination, all Indebtedness of the General Partner, the Borrower and their respective Subsidiaries outstanding at such date, determined on a consolidated basis in accordance with GAAP.

“Consolidated Unsecured Indebtedness” means, as of any date of determination, the sum of the aggregate principal amount of all Funded Debt of the General Partner, the Borrower and their wholly-owned Subsidiaries outstanding at such date which does not constitute Consolidated Secured Indebtedness of such Persons. Notwithstanding the foregoing, Consolidated Unsecured Indebtedness shall include any Funded Debt that is secured only by a pledge of Equity Interests.

“Controlled Group” means all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control which, together with the General Partner, the Borrower or any of their Subsidiaries, are treated as a single employer under Section 414 of the Code.

“Conversion/Continuation Notice” is defined in Section 2.11.

“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.

“Covered Entity” means any of the following:

a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);

a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or

a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

“Covered Party” has the meaning assigned to it in Section 10.19.

“Credit Extension” means the making of an Advance or the issuance of a Facility Letter of Credit.

“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which may include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for business loans; provided, that if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.

 

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“Debt Service” means, for any fiscal quarter, Interest Expense plus scheduled principal amortization payments (excluding balloon payments).

“Default” means a Default described in Article VIII.

“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

“Defaulting Lender” means any Lender, as reasonably determined by the Administrative Agent, that has (a) failed to fund any portion of its Loans or participations in Facility Letters of Credit within three (3) Business Days of the date required to be funded by it hereunder, unless such Lender notifies the Administrative Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) notified the Borrower, the Administrative Agent, the Issuing Bank (if applicable), or any Lender in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement or under any other agreements with any Person in which it commits to extend credit, unless, in the case of such a statement with respect to another agreement, such Lender has affirmed in writing to the Borrower and the Administrative Agent that it intends to comply with its obligations under this Agreement, (c) otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within three (3) Business Days of the date when due, unless the subject of a good faith dispute, (d) (i) become or is insolvent or has a parent company that has become or is insolvent or (ii) become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or custodian, appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has a parent company that has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment (a “Bankruptcy Event”), (e) become the subject of a Bail-In Action or (f) has failed, within three (3) Business Days after request by the Borrower or the General Partner, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective Loans and participations in then outstanding Facility Letters of Credit under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (e) upon the Borrower’s or the General Partner’s receipt of such certification in form and substance satisfactory to it and the Administrative Agent, provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in such Lender or parent company thereof by a Governmental Authority or agency thereof so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.

 

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“Designated Lender” means any Person who has been designated by a Revolving Credit Lender to fund Competitive Bid Loans.

“Designating Lender” is defined in Section 13.4.

“Designation Agreement” means a designation agreement entered into by a Revolving Credit Lender (other than a Designated Lender) and a Designated Lender, and accepted by the Administrative Agent and Borrower, in substantially the form of Exhibit I hereto.

“Disposition” or “Dispose” means the sale, transfer, or other disposition (in one transaction or in a series of transactions and whether effected pursuant to a division or otherwise) of any property by any Person (including any sale and leaseback transaction outside of the ordinary course of business) but, for the avoidance of doubt, excluding any lease, license or similar transfer.

“Earnings From Service Operations” means the sum of “general contractor revenue”minus “general contractor costs” plus revenues from other service fee-based services, such as property management, asset management and construction management minus “service operations general expenses” plus gains (or minus losses) from “disposition of build-for-sale properties”, as each of such terms is reported on the consolidated financial statements of the General Partner, the Borrower and their Subsidiaries.

“Early Opt-in Election” means, if the then-current Benchmark is the LIBOR Rate, the occurrence of:

 

(1)

a notification by the Administrative Agent to (or the request by the Borrower to the Administrative Agent to notify) each of the other parties hereto that at least five currently outstanding dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and

 

(2)

the joint election by the Administrative Agent and the Borrower to trigger a fallback from the LIBOR Rate and the provision by the Administrative Agent of written notice of such election to the Lenders.

“EBITDA” means operating income before extraordinary and non-recurring items, non- cash impairment charges, losses/gains on sales of Properties that are not merchant building Properties, gains on merchant building Properties to the extent of impairment charges previously taken in connection with such merchant building Properties, equity in earnings of Investment Affiliates and minority interest in earnings, as reported by the General Partner, the Borrower and their Subsidiaries in accordance with GAAP, plus (i) Interest Expense (excluding the General Partner’s and the Borrower’s pro rata share of interest expense of Investment Affiliates),

 

14

depreciation, amortization and income tax (if any) expense plus (ii) (without redundancy) the General Partner’s and the Borrower’s pro rata share of Net Operating Income from Investment Affiliates. For avoidance of doubt, “non-recurring items” include, but is not limited to, gains and losses on early retirement or extinguishment of debt; severance and other restructuring charges; and transaction costs of acquisitions that are not permitted to be capitalized. Notwithstanding the above, gains on merchant build Properties representing greater than 5% of EBITDA will be excluded from the calculation of EBITDA.

“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent;

“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

“Effective Date” means the date on which the conditions precedent in Section 5.1 have been satisfied or waived (in accordance with Section 9.2).

“Electronic Signature” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.

“Electronic System” means any electronic system, including e-mail, e-fax, Intralinks^®, ClearPar^®, Debt Domain, Syndtrak and any other Internet or extranet-based site, whether such electronic system is owned, operated or hosted by the Administrative Agent and the Issuing Bank and any of its respective Related Persons or any other Person, providing for access to data

protected by passcodes or other security system and chosen by the Administrative Agent to be its electronic transmission system.

“Eligible Ground Lease” means a ground lease that (i) (a) provides for the fee interest to be mortgaged as additional security for any leasehold mortgage at the option of the tenant, so long as there is no superior mortgage on the fee interest, (b) contains an option for the tenant to purchase the fee interest at a nominal sum, so long as such option can be collaterally assigned to a lender and there is no superior mortgage on the fee interest or (c) contains notice rights, default cure rights, bankruptcy new lease rights and other customary provisions in the lease (or provides for similar provisions in a separate agreement) that taken as a whole would constitute a financeable ground lease to a prudent institutional lender in the business of making commercial real estate loans, and (ii) in the case of clause (i) (a) or (c) above, has a minimum remaining term of thirty (30) years, including tenant controlled renewal or extension options, as of the date of determination. The Eligible Ground Leases as of the date of this Agreement are listed on Schedule EG.

 

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“Environmental Laws” means any and all foreign, Federal, state, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, requirements of any Governmental Authority or other requirements of law (including common law) regulating, relating to or imposing liability or standards of conduct concerning protection of human health or the environment, as now or may at any time hereafter be in effect, in each case to the extent the foregoing are applicable to the General Partner, the Borrower or any Subsidiary or any of their respective assets or Projects.

“Equity Interests” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any such equity interest.

“Equity Value” means, with respect to any Subsidiary of the General Partner or the Borrower, Net Operating Income of the assets of such Subsidiary for the preceding quarter multiplied by four and capitalized at the Capitalization Rate less any Indebtedness of such Subsidiary or, in the case of assets acquired by such Subsidiary after the Closing Date and for a period of one year after acquisition, the purchase price of such asset less any Indebtedness at such Subsidiary attributable to such asset.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any rule or regulation issued thereunder.

“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

“Excluded Advance” means any Advance of Revolving Loans which is solely refinancing an existing Advance of Revolving Loans and is not increasing the aggregate outstanding principal amount of Revolving Loans hereunder (including, for the avoidance of doubt, a conversion of Revolving Loans from one Type to another Type or a continuation of a LIBOR<Term Benchmark> Loan).

“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. Federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 4.7) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 4.5, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender acquired the applicable interest in a Loan or Commitment or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 4.5(f) and (d) any U.S. Federal withholding Taxes imposed under FATCA.

 

16

“Existing Credit Agreement” is defined in the recitals hereto.

“Facility” means the Revolving Credit Facility and/or the New Term Loan Facility, as the context may require.

“Facility Fee” is defined in Section 2.5.

“Facility Fee Rate” is defined in Section 2.5.

“Facility Letter of Credit” means a Letter of Credit issued hereunder upon the application of the Borrower.

“Facility Letter of Credit Fee” is defined in Section 3.12(a).

“Facility Letter of Credit Exposure” means, at any time, the sum of the Facility Letter of Credit Obligations at such time. The Facility Letter of Credit Exposure of any Revolving Credit Lender at any time shall be its Revolving Credit Percentage of the total Facility Letter of Credit Exposure at such time.

“Facility Letter of Credit Obligations” means, as at the time of determination thereof, all liabilities, whether actual or contingent, of the Borrower with respect to Facility Letters of Credit, including the sum of (a) the Reimbursement Obligations and (b) the aggregate undrawn face amount of the then outstanding Facility Letters of Credit.

“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreement entered into pursuant to Section 1471(b)(1) of the Code.

“FCA” has the meaning assigned to such term in Section 1.4.

“Federal Funds Effective Rate” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions, as determined in such manner as shall be set forth on the NYFRB’s Website from time to time, and published on the next succeeding Business Day by the NYFRB as the federal funds effective rate, provided that if the Federal Funds Effective Rate shall be less than zero, such rate shall be deemed to be zero.

“Fixed Charges” means, for any fiscal quarter, Debt Service for such quarter plus Preferred Dividends.

“Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to the LIBOR<Adjusted Term SOFR> Rate.< For the avoidance of doubt the initial Floor for the Adjusted Term SOFR Rate shall be 0.0%.>

 

17

“Foreign Lender” means a Lender that is not a U.S. Person.

“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 business.

“Funded Debt” means, with respect to any Person, the sum, without duplication, of (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of property or services (other than (i) earn-out obligations or similar contingent consideration and (ii) current trade liabilities incurred in the ordinary course of business and payable in accordance with customary practices), to the extent such obligations constitute indebtedness for the purposes of GAAP, (c) any other indebtedness of such Person which is evidenced by a note, bond, debenture or similar instrument, and (d) all Capitalized Lease Obligations. For the avoidance of doubt, Funded Debt shall not include Guarantee Obligations or reimbursement obligations in respect of letters of credit.

“Funded Percentage” means, the Revolving Credit Funded Percentage or the New Term Loan Funded Percentage, as the context may require.

“GAAP” means generally accepted accounting principles in the United States of America as in effect from time to time, applied in a manner consistent with that used in preparing the financial statements referred to in Section 6.4; provided that all accounting terms, ratios and calculations shall be determined without giving effect to Accounting Standards Codification 842 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) (and related interpretations) to the extent any lease (or similar arrangement conveying the right to use) would be required to be treated as a capital lease thereunder where such lease (or similar arrangement) would have been treated as an operating lease under GAAP as in effect immediately prior to the effectiveness of the Accounting Standards Codification 842.

“General Partner” is defined in the introductory paragraph hereto and shall include successors and permitted assigns.

“Governmental Authority” means any nation or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

“Guarantee Obligation” means, as to any Person (the “guaranteeing person”), any obligation (determined without duplication) of (a) the guaranteeing person or (b) another Person (including, without limitation, any bank under any Letter of Credit) to induce the creation of which the guaranteeing person has issued a reimbursement, counter-indemnity or similar obligation, in either case guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or other obligations (the “primary obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any

 

18

obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided, however, that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the maximum stated amount of the primary obligation relating to such Guarantee Obligation (or, if less, the maximum stated liability set forth in the instrument embodying such Guarantee Obligation), provided, that in the absence of any such stated amount or stated liability, the amount of such Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith. Notwithstanding the foregoing, the term Guarantee Obligation shall only include the portion of a Guarantee by the Borrower or the General Partner of Indebtedness of an Investment Affiliate which is secured by a Lien on any assets (“Investment Affiliate Debt”) that is greater than 50% of the value of the properties securing the Investment Affiliate Debt (with value computed by capitalizing the Property Operating Income from Stabilized Properties at the Capitalization Rate, and for other properties at lower of GAAP book value or appraised value based on appraisals received by the Borrower, if any); provided that the aggregate amount so excluded as Guarantee Obligations cannot exceed 2.5% of Total Asset Value. For purposes of this definition, to the extent that the Borrower is required to include any guarantees given on tax increment financing (or any other type of public financing where a government entity contributes to the project costs) and the amount contributed by the government entity is deducted from the book value of the property in accordance with GAAP, then the Borrower shall adjust the property value to exclude the deduction if the Borrower is using GAAP book value to determine property value.

“Guarantor” is defined in the introductory paragraph hereto.

“Guaranty” means that certain Amended and Restated Guaranty of even date herewith executed by the Guarantor in favor of the Administrative Agent, for the ratable benefit of the Lenders, as it may be amended or modified and in effect from time to time.

“Impacted Interest Period” has the meaning set forth in the definition of LIBOR Base Rate.

“Increased Amount Date” is defined in Section 2.25.

“Indebtedness” of any Person at any date means without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of property or services (other than (i) earn-out obligations or similar contingent consideration and (ii) current trade liabilities incurred in the ordinary course of business and payable in accordance with customary practices), to the extent such obligations constitute indebtedness for the purposes of GAAP, (c) any other indebtedness of such Person which is

 

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evidenced by a note, bond, debenture or similar instrument, (d) all Capitalized Lease Obligations, (e) all obligations of such Person in respect of acceptances issued or created for the account of such Person, (f) all Guarantee Obligations of such Person (excluding in any calculation of consolidated indebtedness of the Borrower, Guarantee Obligations of the Borrower in respect of primary obligations of any Subsidiary), (g) all reimbursement obligations of such Person for letters of credit and other contingent liabilities to the extent not otherwise included under another clause of this definition, (h) Rate Management Obligations, (i) all liabilities secured by any lien (other than liens for taxes not yet due and payable) on any property owned by such Person even though such Person has not assumed or otherwise become liable for the payment thereof, (j) any repurchase obligation or liability of such Person or any of its Subsidiaries with respect to accounts or notes receivable sold by such Person or any of its Subsidiaries, (k) any other transaction which is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the consolidated balance sheet of such Person, (l) such Person’s pro rata share of debt in Investment Affiliates and (m) any loans where such Person is liable as a general partner.

“Indemnified Parties” means the Arrangers and the Administrative Agent.

“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower under any Loan Document and (b) to the extent not otherwise included under clause (a) immediately above, Other Taxes.

“Indemnitee” is defined in Section 10.6.

<“Initial New Term Loan” means, with respect to an Initial New Term Loan Lender, such Initial New Term Loan Lender’s portion of any New Term Loan Advance made in accordance with Section 2.1(b).>

<”><Initial New ><Term Loan Commitment” means, for each Initial New Term Loan Lender, the obligation of such Initial New Term Loan Lender to make Initial New Term Loans to the Borrower in an aggregate amount not exceeding the amount set forth on Schedule L hereto.>

<“Initial New Term Loan Facility” means the Initial New Term Loan Commitments and the Initial New Term Loans. >

<“Initial New Term Loan Lenders” means the lending institutions listed as “New Term Loan Lenders” in Amendment No. 1 that hold an Initial New Term Loan Commitment and/or Initial New Term Loans as set forth on Schedule L, their respective successors and assigns and any other lending institutions that subsequently become parties to this Agreement in connection with the Initial New Term Loan Facility.>

<” ><Initial New Term Loan Termination Date” means March 31, 2025 or any earlier date on which the New Term Loans are accelerated pursuant to ><Section 9.1. >

 

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“Interest Expense” means all interest expense of the General Partner, the Borrower and their Subsidiaries determined in accordance with GAAP plus (i) the General Partner’s and the Borrower’s pro rata share of interest expense in Investment Affiliates, (ii) capitalized interest not covered by an interest reserve from a loan facility, (iii) 100% of any accrued, or paid interest incurred on any obligation for which the Borrower or the General Partner is wholly or partially liable under repayment, interest carry, or performance guarantees, or other relevant liabilities, provided that (x) no expense shall be included more than once in such calculation even if it falls within more than one of the foregoing categories and (y) all non-cash interest expense shall be excluded from the definition of Interest Expense.

“Interest Period” means a LIBOR<Term Benchmark> Interest Period or Absolute Interest Period.

“Interpolated Rate” means, at any time, for any Interest Period, the rate per annum (rounded to the same number of decimal places as the LIBO Screen Rate) determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the LIBO Screen Rate for the longest period for which the LIBO Screen Rate is available for U.S. Dollars that is shorter than the Impacted Interest Period; and (b) the LIBO Screen Rate for the shortest period (for which that LIBO Screen Rate is available for U.S. Dollars) that exceeds the Impacted Interest Period, in each case, at such time.

“Investment Affiliate” means any Person in which the General Partner or the Borrower, directly or indirectly, has an ownership interest, whose financial results are not consolidated under GAAP with the financial results of the General Partner or the Borrower on the consolidated financial statements of the General Partner or the Borrower.

“Investment Affiliate Debt” has the meaning set forth in the definition of Guarantee Obligation.

“Invitation for Competitive Bid Quotes” means a written notice to the Revolving Credit Lenders from the Administrative Agent in the form attached as Exhibit C-2 for Competitive Bid Loans made pursuant to Section 2.15.

“ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.

“Issuance Date” is defined in Section 3.4(a).

“Issuance Notice” is defined in Section 3.4(c).

“Issuing Bank” means, with respect to each Facility Letter of Credit, the Lender which issues such Facility Letter of Credit and its successors in such capacity. As of the Closing Date, the permitted Issuing Banks are JPMCB, Wells Fargo Bank, N.A., The Bank of Nova Scotia and Regions Bank. Any Issuing Bank may, in its discretion, arrange for a Facility Letter of Credit to be issued by its Affiliates, in which case the term “Issuing Bank” shall include such Affiliate. Each reference herein to the Issuing Bank shall mean all of the Issuing Banks, each Issuing Bank, any Issuing Bank or the applicable Issuing Bank, as the context may require.

 

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“JPMCB” is defined in the introductory paragraph hereto.

“LC Payment Date” is defined in Section 3.5.

“Lender Parent” means, with respect to any Lender, any Person as to which such Lender is, directly or indirectly, a subsidiary.

“Lender-Related Person” means Administrative Agent, any Arranger, any Other Agent, any Issuing Bank and any Lender, and any Related Party of any of the foregoing Persons

“Lenders” means the Revolving Credit Lenders and/or the New Term Loan Lenders, as the context may require.

“Lending Installation” means, with respect to a Lender, any office, branch, subsidiary or affiliate of such Lender.

“Letter of Credit” of a Person means a letter of credit or similar instrument which is issued upon the application of such Person or upon which such Person is an account party or for which such Person is in any way liable.

“Letter of Credit Collateral” is defined in Section 3.14(b).

“Letter of Credit Collateral Account” is defined in Section 3.14(a).

“Letter of Credit Commitment” means as to any Issuing Bank (i) the amount set forth opposite such Issuing Bank’s name as its Letter of Credit Commitment on Schedule L hereof or (ii) if such Issuing Bank has entered into an Assignment and Assumption, the amount set forth for such Lender as its Letter of Credit Commitment in the Register maintained by the Administrative Agent pursuant to Section 13.2. The Letter of Credit Commitment of an Issuing Bank may be modified from time to time by agreement between such Issuing Bank and the Borrower, and notified to the Administrative Agent.

“Letter of Credit Request” is defined in Section 3.4(a).

“Liabilities” means any losses, claims (including intraparty claims), demands, damages or liabilities of any kind.

“LIBOR” is defined in Section 1.4.

“LIBOR Advance” means an Advance which bears interest at a LIBOR Rate, whether a ratable Advance based on the LIBOR Applicable Margin or a Competitive Bid Loan based on a Competitive LIBOR Margin.

“LIBOR Applicable Margin” means, as of any date with respect to any LIBOR Interest Period, the Applicable Margin in effect for such LIBOR Interest Period as determined in accordance with Section 2.4 hereof.

 

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“LIBOR Base Rate” means, with respect to any LIBOR Advance for any Interest Period, the London interbank offered rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate for U.S. Dollars) for a period equal in length to such Interest Period as displayed on page LIBOR01 of the Reuters screen that displays such rate (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion; in each case the “LIBO Screen Rate”) at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such Interest Period; provided that, if the LIBO Screen Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement and provided, further, if the LIBO Screen Rate shall not be available at such time for such Interest Period (an “Impacted Interest Period”) then the LIBOR Base Rate shall be the Interpolated Rate, provided, that, if any Interpolated Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

“LIBOR Interest Period” means with respect to a LIBOR Advance, a period of one, three or six months commencing on a Business Day selected by the Borrower pursuant to this Agreement. Such LIBOR Interest Period shall end on (but exclude) the day which corresponds numerically to such date one, three or six months thereafter, provided, however, that if there is no such numerically corresponding day in such next, third or sixth succeeding month, such LIBOR Interest Period shall end on the last Business Day of such next, second, third or sixth succeeding month. If a LIBOR Interest Period would otherwise end on a day which is not a Business Day, such LIBOR Interest Period shall end on the next succeeding Business Day, provided, however, that if said next succeeding Business Day falls in a new calendar month, such LIBOR Interest Period shall end on the immediately preceding Business Day. In no event shall a LIBOR Interest Period extend beyond the then current Termination Date.

“LIBOR Loan” means a Loan which bears interest at a LIBOR Rate.

“LIBOR Rate” means, with respect to a LIBOR Advance for the relevant LIBOR Interest Period, the sum of (i) the quotient of (a) the LIBOR Base Rate applicable to such LIBOR Interest Period, divided by (b) one minus the Reserve Requirement (expressed as a decimal) applicable to such LIBOR Interest Period, plus (ii) the LIBOR Applicable Margin in effect on the day that such LIBOR Base Rate was determined. The LIBOR Rate shall be rounded to the next higher multiple of 1/100 of 1% if the rate is not a multiple of 1/100 of 1%.

“LIBO Screen Rate” has the meaning set forth in the definition of LIBOR Base Rate.

“Lien” means any lien (statutory or other), mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including, without limitation, the interest of a vendor or lessor under any conditional sale, Capitalized Lease or other title retention agreement).

“Loan” means a Revolving Loan and/or a New Term Loan.

 

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“Loan Documents” means this Agreement, the Notes, the Guaranty, the Subsidiary Guaranties, and any other document from time to time evidencing or securing indebtedness or obligations incurred by the General Partner or the Borrower under this Agreement, as any of the foregoing may be amended or modified from time to time.

“Loan Parties” means the Borrower, the Guarantor and each Subsidiary Guarantor. “Major Acquisition” means any transaction or series of related transactions for the purpose of the acquisition (including, without limitation, a merger or consolidation or any other combination with another Person) by one or more of the Borrower and its Subsidiaries of properties or assets of a Person for a purchase price in excess of 5% of Total Asset Value.

“Managing Agent” means the managing agent(s) identified in the cover page to this Agreement.

“Material Adverse Effect” means a material adverse effect on (i) the business, Property, financial condition or results of operations of the General Partner, the Borrower and their Subsidiaries, taken as a whole, (ii) the ability of the General Partner or the Borrower to perform their obligations under the Loan Documents, or (iii) the validity or enforceability of any of the Loan Documents or the rights or remedies of the Administrative Agent or the Lenders thereunder.

“Material Indebtedness” means any Indebtedness (excluding Indebtedness, or any portion thereof, that is “non-recourse” (as defined below)) of the General Partner, the Borrower or their Wholly-Owned Subsidiaries in an outstanding principal amount of $75,000,000 or more in the aggregate. For purposes this definition, the term “non-recourse” shall mean Indebtedness for which the General Partner, the Borrower or any Wholly-Owned Subsidiary is not liable other than (i) as to its interest in a specifically identified property or asset and (ii) with respect to fraud, misappropriation, and other customary “bad act carve-outs” under the applicable agreements relating to such Indebtedness, but only so long as no such “bad act carve-out” event has occurred.

“Material Subsidiary” means a Subsidiary owning assets with a value greater than $25,000,000.

“Materials of Environmental Concern” means any gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products or any hazardous or toxic substances, materials or wastes, defined or regulated as such in or under any Environmental Law, including, without limitation, asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.

“Maximum Legal Rate” means the maximum nonusurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the Loans and as provided for herein or in the Notes or other Loan Documents, under the laws of such state or states whose laws are held by any court of competent jurisdiction to govern the interest rate provisions of the Loans.

“Modify” or “Modification” is defined in Section 3.1.

 

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“Moody’s” means Moody’s Investors Service, Inc. and its successors.

“Multiemployer Plan” means a “multiemployer plan” as defined in Section 3(37) of ERISA to which contributions have been, or were required to have been made by General Partner, Borrower, or any member of the Controlled Group, which is covered by Title IV of ERISA.

“Net Operating Income” means, with respect to any Investment Affiliate or Subsidiary, for any period, such entity’s operating income minus all operating expenses (as determined in accordance with GAAP) incurred in connection with and directly attributable to the generation of such operating income but excluding interest expense and other debt service charges and any non-cash charges such as depreciation or amortization of financing costs.

“New Revolving Credit Commitments” is defined in Section 2.25.

“New Revolving Lender” is defined in Section 2.25.

“New Term Loan Commitments” is defined in Section 2.25<, and shall include the Initial New Term Loan Commitments>.

“New Term Loan Facility” is defined in Section 2.25<, and shall include the Initial New Term Loan Facility>.

“New Term Loan Funded Percentage” means, with respect to any New Term Loan Lender at any time, a percentage equal to a fraction the numerator of which is the amount actually disbursed and outstanding to Borrower by such New Term Loan Lender at such time, and the denominator of which is the total amount disbursed and outstanding to Borrower by all of the New Term Loan Lenders at such time.

“New Term Loan Lender” is defined in Section 2.25<, and shall include the Initial New Term Loan Lenders>.

“New Term Loans” is defined in Section 2.25.< The Initial New Term Loans shall be deemed to be New Term Loans.>

<“New Term Loan Note” means a promissory note duly executed by the Borrower and payable to the order of a New Term Loan Lender in the amount of its New Term Loan Commitment, including any amendment, modification, renewal or replacement of such promissory note.>

“Note” means a Competitive Bid Note and/or<,> a Revolving Credit Note< and/or a New Term Loan Note>, as the context may require.

“NYFRB” means the Federal Reserve Bank of New York.

 

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“NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a Federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

“NYFRB’s Website” means the website of the NYFRB at http://www.newyorkfed.org, or any successor source.

“Obligations” means the Advances, the Facility Letter of Credit Obligations and all accrued and unpaid fees and all other obligations of Borrower to the Administrative Agent or the Lenders arising under this Agreement or any of the other Loan Documents.

“OFAC” means the Office of Foreign Assets Control, United States Department of Treasury.

“Other Agents” is defined in Section 10.15.

“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 4.7).

“Outstanding Credit Exposure” means the Outstanding Revolving Credit Exposure and/or the Outstanding New Term Loan Exposure.

“Outstanding New Term Loan Exposure” means, as to any New Term Loan Lender at any time, the aggregate principal amount of its New Term Loans outstanding at such time.

“Outstanding Revolving Credit Exposure” means, as to any Revolving Credit Lender at any time, the sum of (i) the aggregate principal amount of its Revolving Loans outstanding at such time, plus (ii) an amount equal to its Revolving Credit Percentage of the Facility Letter of Credit Obligations at such time.

“Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight federal funds and overnight LIBOR borrowings<eurodollar transactions denominated in Dollars> by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on the NYFRB’s Website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate (from and after such date as the NYFRB shall commence to publish such composite rate).

 

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“Participant Register” is defined in Section 13.3.

“Participants” is defined in Section 13.3.

“Patriot Act” has the meaning assigned to it in Section 10.16.

“Payment” has the meaning assigned to it in Section 11.8(b).

“Payment Date” means, with respect to the payment of interest accrued on any ABR Advance, the first Business Day of each calendar month.

“Payment Notice” has the meaning assigned to it in Section 11.8(b).

“PBGC” means the Pension Benefit Guaranty Corporation, or any successor thereto. “Percentage” means the Revolving Credit Percentage and/or the New Term Loan Funded Percentage, as the context may require.

“Permitted Liens” are defined in Section 7.15.

“Person” means any natural person, corporation, firm, joint venture, partnership, association, enterprise, trust or other entity or organization, or any government or political subdivision or any agency, department or instrumentality thereof.

“Plan” means an employee pension benefit plan which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code as to which the General Partner, the Borrower or any member of the Controlled Group may have any liability.

“Plan Asset Regulations” means 29 CFR § 2510.3-101 et seq., as modified by Section 3(42) of ERISA, as amended from time to time.

“Preferred Dividends” shall mean, for any period, without duplication of such amounts as constitute intercompany debts or distributions, the sum of (a) dividends or distributions due and payable or accrued during such period on preferred stock issued by General Partner or a Subsidiary, and (b) distributions which are the functional equivalent of preferred dividends (i.e., which the issuer is required to make prior to distributions on another class or other classes of partnership interests) and which are due and payable or accrued during such period on preferred partnership interests issued by Borrower or any other Subsidiary.

“Pre-Stabilized Property” means, as of any date of determination, any income-producing Project, or the Borrower’s pro rata share of any income-producing real estate asset owned or operated by an Investment Affiliate and operated or intended to be operated as an office, medical office, industrial (including cold storage facilities, truck terminals, trailer lots and storage yards) or retail property, in which construction has been completed for more than 18 months but which has not yet achieved an occupancy rate of eighty-five percent (85%). Any such Project or

 

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income-producing real estate asset shall be treated as a Pre-Stabilized Property until it achieves an occupancy rate of eighty-five percent (85%), unless the Borrower has made a one-time election to treat such Project or income-producing real estate asset as a Stabilized Property or income-producing real estate asset (and no longer treat such Project or income-producing real estate asset as a Pre-Stabilized Property).

“Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as reasonably determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as reasonably determined by the Administrative Agent). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.

“Project” means any real estate asset owned or operated by the Borrower or any Subsidiary and operated or intended to be operated as an office, medical office, industrial (including cold storage facilities, truck terminals, trailer lots and storage yards) or retail property.

“Property” of a Person means any and all property, whether real, personal, tangible, intangible, or mixed, of such Person, or other assets owned, leased or operated by such Person.

“Property Operating Income” means, with respect to any Project or other real estate asset, for any period, earnings from rental operations (computed in accordance with GAAP) attributable to such Project or other real estate asset plus depreciation, amortization and interest expense for such period, and, if such period is less than a year, adjusted by straight lining various ordinary operating expenses which are payable less frequently than once during every such period (e.g. real estate taxes and insurance).

“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).

“QFC Credit Support” has the meaning assigned to it in Section 10.19.

“Rate Management Obligations” of a Person means any and all payment obligations of such Person then due under (i) any and all Rate Management Transactions, and (ii) any and all cancellations, buybacks, reversals, terminations or assignments of any Rate Management Transactions, in each case net of liabilities owed by the counterparties thereto and net of any collateral consisting of cash, cash equivalents or letters of credit held solely for such payment obligations.

“Rate Management Transaction” means any transaction (including an agreement with respect thereto) now existing or hereafter entered by the Borrower or any Subsidiary which is a rate swap, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option, foreign

 

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exchange transaction, cap transaction, floor transaction, collar transaction, forward transaction, currency swap transaction, cross-currency rate swap transaction, currency option or any other similar transaction (including any option with respect to any of these transactions) or any combination thereof, whether linked to one or more interest rates, foreign currencies, commodity prices, equity prices or other financial measures.

“Recipient” means, as applicable, (a) the Administrative Agent, (b) any Lender and (c) any Issuing Bank.

“Reference Time” with respect to any setting of the then-current Benchmark means (1) if such Benchmark is the LIBOR<Term SOFR> Rate, 11:00<5:00> a.m. (London<Chicago> time) on the day that is two London banking days<Business Days> preceding the date of such setting, and< or> (2) if such Benchmark is not the LIBOR<Term SOFR> Rate, the time determined by the Administrative Agent in its reasonable discretion.

“Register” is defined in Section 13.2.

“Regulation U” means Regulation U of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor or other regulation or official interpretation of said Board of Governors relating to the extension of credit by banks for the purpose of purchasing or carrying margin stocks applicable to member banks of the Federal Reserve System.

“Regulation X” means Regulation X of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor or other regulation or official interpretation of said Board of Governors relating to the extension of credit by banks for the purpose of purchasing or carrying margin stocks applicable to member banks of the Federal Reserve System.

“Reimbursement Obligations” means at any time, the aggregate of the Obligations of the Borrower to the Revolving Credit Lenders, the Issuing Bank and the Administrative Agent in respect of all unreimbursed payments or disbursements made by the Revolving Credit Lenders, the Issuing Bank and the Administrative Agent under or in respect of the Facility Letters of Credit.

“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Person’s Affiliates.

“Relevant Governmental Body” means<,> the Federal Reserve Board <and/>or the NYFRB<, the CME Term SOFR Administrator, as applicable>, or a committee officially endorsed or convened by the Federal Reserve Board <and/>or the NYFRB, or<, in each case,> any successor thereto.

<“Relevant Rate” means with respect to any Term Benchmark Advance, the Adjusted Term SOFR Rate.>

 

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“Reportable Event” means a reportable event as defined in Section 4043 of ERISA and the regulations issued under such section, with respect to a Plan, excluding, however, such events as to which the PBGC by regulation waived the requirement of Section 4043(a) of ERISA that it be notified within thirty (30) days of the occurrence of such event, provided, however, that a failure to meet the minimum funding standard of Section 412 of the Code and of Section 302 of ERISA shall be a Reportable Event regardless of the issuance of any such waiver of the notice requirement in accordance with either Section 4043(a) of ERISA or Section 412(d) of the Code.

“Required Facility Lenders” means, with respect to any Facility, the holders of more than 50% of the New Term Loans (if any) or the total Revolving Credit Commitments, as the case may be, outstanding under such Facility (or, in the case of the Revolving Credit Facility, after any termination of the Revolving Credit Commitments, the holders of more than 50% of the total Revolving Loans); provided that, in the event any Lender shall be a Defaulting Lender, then for so long as such Lender is a Defaulting Lender, “Required Facility Lenders” means Lenders (excluding all Defaulting Lenders) having more than 50% of the total New Term Loans or the total Revolving Credit Commitments (or total Revolving Loans), as the case may be, outstanding under such Facility (excluding the New Term Loans, Revolving Credit Commitments and Revolving Loans, as applicable, of all Defaulting Lenders).

“Required Lenders” means Lenders having in the aggregate greater than 50% of the aggregate amount of (x) the Aggregate Revolving Credit Commitment or, if the Aggregate Revolving Credit Commitment has been terminated, the aggregate Outstanding Revolving Credit Exposure plus (y) the outstanding New Term Loans (if any); provided, however, that no Defaulting Lender shall be permitted to vote on any matter requiring the vote of the Required Lenders and for purposes of determining the Required Lenders, the Commitments of such Lender or the unpaid principal amount of Loans evidenced by Notes held by such Lender, as applicable, shall not be counted.

“Reserve Requirement” means, with respect to a LIBOR Interest Period, the maximum aggregate reserve requirement on Eurocurrency liabilities.

“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.

“Revolving Credit Commitment” means, for each Revolving Credit Lender, (a) the obligation of such Revolving Credit Lender to make Revolving Loans to, and participate in Facility Letters of Credit issued upon the application of, the Borrower in an aggregate amount not exceeding the amount set forth on Schedule L hereto or as set forth in any Assignment and Assumption that has become effective pursuant to Section 13.2, as such amount may be modified from time to time pursuant to the terms hereof or (b) any New Revolving Credit Commitment of such Revolving Credit Lender.

“Reuters” means, as applicable, Thomson Reuters Corp., Refinitiv, or any successor thereto.

“Revolving Credit Facility” means the Revolving Credit Commitments and the Revolving Loans, including the Competitive Bid Loans.

 

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“Revolving Credit Funded Percentage” means, with respect to any Revolving Credit Lender at any time, a percentage equal to a fraction the numerator of which is the amount actually disbursed and outstanding to Borrower by such Revolving Credit Lender at such time (including Competitive Bid Loans), and the denominator of which is the total amount disbursed and outstanding to Borrower by all of the Revolving Credit Lenders at such time (including Competitive Bid Loans).

“Revolving Credit Lenders” means the lending institutions listed on the signature pages of this Agreement that hold a Revolving Credit Commitment as set forth on Schedule L, their respective successors and assigns and any other lending institutions that subsequently become parties to this Agreement in connection with the Revolving Credit Facility and except when used in reference to an obligation of the Revolving Credit Lenders which is based on their Revolving Credit Percentage of the Aggregate Revolving Credit Commitment, each Designated Lender. Unless the context otherwise requires, the term “Revolving Credit Lenders” shall include the Issuing Banks.

“Revolving Credit Note” means a promissory note, in substantially the form of Exhibit B-1 hereto, duly executed by the Borrower and payable to the order of a Revolving Credit Lender in the amount of its Revolving Credit Commitment, including any amendment, modification, renewal or replacement of such promissory note.

“Revolving Credit Percentage” means, with respect to any Revolving Credit Lender, the percentage of the Aggregate Revolving Credit Commitments represented by such Revolving Credit Lender’s Revolving Credit Commitment; provided that solely for the purposes of Section 2.24(c) when a Defaulting Lender with respect to the Revolving Credit Facility shall exist, “Revolving Credit Percentage” shall mean the percentage of the Aggregate Revolving Credit Commitments (disregarding any such Defaulting Lender’s Revolving Credit Commitment) represented by such Revolving Credit Lender’s Revolving Credit Commitment. If the Revolving Credit Commitments have terminated or expired, the Revolving Credit Percentages shall be determined based upon the Revolving Credit Commitments most recently in effect, giving effect to any assignments.

“Revolving Credit Termination Date” means March 31, 2025 or any earlier date on which the Aggregate Revolving Credit Commitment is reduced to zero or otherwise terminated pursuant to the terms hereof. The Borrower may extend the originally scheduled Revolving Credit Termination Date on two (2) occasions for a period of up to six (6) months per extension provided that (x) the Borrower provides written notice of such extension at least thirty (30) days but not more than ninety (90) days prior to the then scheduled Revolving Credit Termination Date, (y) no Default exists on the date of such notice, and (z) the Borrower pays an extension fee for each extension equal to 0.0625% of the Aggregate Revolving Credit Commitment by or on the then scheduled Revolving Credit Termination Date.

“Revolving Loan” means, with respect to a Revolving Credit Lender, such Revolving Credit Lender’s portion of any Advance made in connection with the Revolving Credit Facility.

 

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“Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. federal government, including those administered by OFAC or the U.S. Department of State, or (b) the United Nations Security Council, the European Union, any European Union member state in which the Borrower or any Subsidiary conducts operations, or Her Majesty’s Treasury of the United Kingdom.

“Sanctioned Country” means, at any time, any country, region or territory which is itself the subject or target of any full-scope (non-list based) Sanctions (at the time of this Agreement, Cuba, Iran, North Korea, Syria<, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic> and <the >Crimea< Region of Ukraine>).

“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related Executive Order or list of designated Persons maintained by OFAC, the U.S. Department of State, or by the United Nations Security Council, the European Union, any European Union member state in which the Borrower or any Subsidiary conducts operations or Her Majesty’s Treasury of the United Kingdom or (b) unless otherwise authorized by OFAC, any Person operating, organized or resident in a Sanctioned Country, or (c) any Person owned 50 percent or more or controlled by any such Person or Persons described in the foregoing clauses (a) or (b).

“SEC” means the Securities and Exchange Commission.

“Section” means a numbered section of this Agreement, unless another document is specifically referenced.

“Single Employer Plan” means a Plan maintained by the General Partner or the Borrower or any member of the Controlled Group for employees of the General Partner or the Borrower or any member of the Controlled Group.

“SOFR” means, with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published<as administered> by the SOFR Administrator on the SOFR Administrator’s Website on the immediately succeeding Business Day.

“SOFR Administrator” means the NYFRB (or a successor administrator of the secured overnight financing rate).

“SOFR Administrator’s Website” means the NYFRB’s Website, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.

“Stabilized Property” means, as of any date of determination, any income-producing Project or the Borrower’s pro rata share of any income-producing real estate asset owned or operated by an Investment Affiliate and operated or intended to be operated as an office, medical office, industrial (including cold storage facilities, truck terminals, trailer lots and storage yards) or retail property in which construction of improvements has been completed and which has achieved an occupancy rate of 85%.

 

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“Subsidiary” means, as to any Person, a corporation, partnership or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person, including all subsidiaries consolidated pursuant to GAAP (other than subsidiaries that are so consolidated due to being determined as the primary beneficiary of a variable interest entity, as defined by GAAP, and do not otherwise meet the control tests described above). Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower or the General Partner.

“Subsidiary Guarantor” means a Subsidiary of the Borrower or the General Partner which executes and delivers a Subsidiary Guaranty so that the Project owned by such Subsidiary shall qualify as an Unencumbered Asset. The Subsidiary Guarantors as of the date of this Agreement are listed on Schedule SG.

“Subsidiary Guaranty” means any guaranty executed and delivered by any Subsidiary Guarantor, substantially in the form of Exhibit K, as the same may be amended, supplemented or otherwise modified from time to time.

“Substantial Portion” means, with respect to the Property of the General Partner, the Borrower or their Subsidiaries, taken as a whole, Property which (i) represents more than 25% of the consolidated assets of the General Partner, the Borrower and their Subsidiaries as disclosed on the most recently issued quarterly consolidated financial statements of the General Partner, the Borrower and their Subsidiaries, or (ii) is responsible for more than 25% of the consolidated net revenues of the General Partner, the Borrower and their Subsidiaries as reflected in the financial statements referred to in clause (i) above.

“Supported QFC” has the meaning assigned to it in Section 10.19.

“Sustainability Structuring Agent” means the Sustainability Structuring Agent identified on the cover page of this Agreement.

“Syndication Agent” means the Syndication Agent identified on the cover page of this Agreement.

“S&P” means S&P Global Ratings, a Standard & Poor’s Financial Services LLC business, and its successors.

“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

“Term SOFR” means, for the applicable Corresponding Tenor as of the applicable Reference Time, the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body<Benchmark” when used in reference to any Loan or Advance, refers to whether such Loan, or the Loans comprising such Advance, are bearing interest at a rate determined by reference to ><the Adjusted Term SOFR Rate.>

 

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<“Term Benchmark Advance” means an Advance which bears interest at the Adjusted Term SOFR Rate, whether a ratable Advance based on the Term Benchmark Applicable Margin or a Competitive Bid Loan based on a Competitive Term Benchmark Margin.>

<“Term Benchmark Applicable Margin” means, as of any date with respect to any Term Benchmark Interest Period, the Applicable Margin in effect for such Term Benchmark Interest Period as determined in accordance with Section 2.4 hereof.>

<“Term Benchmark Interest Period” means with respect to any Term Benchmark Advance, the period commencing on the date of such Advance and ending on the numerically corresponding day in the calendar month that is one, three or six months thereafter (in each case, subject to the availability for the Benchmark applicable to the relevant Loan or Commitment), as the Borrower may elect; provided, that ><(i)>< if any Term Benchmark Interest Period would end on a day other than a Business Day, such Term Benchmark Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Term Benchmark Interest Period shall end on the next preceding Business Day, (ii) any Term Benchmark Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Term Benchmark Interest Period) shall end on the last Business Day of the last calendar month of such Term Benchmark Interest Period and (iii) no tenor that has been removed from this definition pursuant to Section 4.3(e) shall be available for specification in such Borrowing Notice or ><Conversion/Continuation Notice>< unless and until such tenor has been reinstated pursuant to Section 4.3(e). For purposes hereof, the date of an Advance initially shall be the date on which such Advance is made and thereafter shall be the effective date of the most recent conversion or continuation of such Advance>.

“Term SOFR Notice<Benchmark Loan>” means a notification by the Administrative Agent to the Lenders and the Borrower of the occurrence of a Term SOFR Transition Event and election to implement clause (c) of Section 4.3<Loan which bears interest at the Adjusted Term SOFR Rate.>

<“Term SOFR Determination Day” has the meaning assigned to it under the definition of Term SOFR Reference Rate.>

<“Term SOFR Rate” means, with respect to any Term Benchmark Advance and for any tenor comparable to the applicable Term Benchmark Interest Period, the Term SOFR Reference Rate at approximately 5:00 a.m., Chicago time, two U.S. Government Securities Business Days prior to the commencement of such tenor comparable to the applicable Term Benchmark Interest Period, as such rate is published by the CME Term SOFR Administrator>.

“Term SOFR Transition Event<Reference Rate>” means the determination<, for any day and time (such day, the “Term SOFR Determination Day”), with respect to any Term Benchmark Advance denominated in Dollars and for any tenor comparable to the applicable Term Benchmark Interest Period, the rate per annum determined> by the Administrative Agent

 

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that (a) Term SOFR has been recommended for use by the Relevant Governmental Body, (b)<as the forward-looking term rate based on SOFR. If by 5:00 pm (New York City time) on such Term SOFR Determination Day,> the administration of <“>Term SOFR is administratively feasible for the Administrative Agent and (c) a Benchmark Transition Event or an Early Opt-in Election, as<Reference Rate” for the> applicable,< tenor> has previously occurred resulting in<not been published by the CME Term SOFR Administrator and> a Benchmark Replacement in accordance with Section 4.3 that is not<Date with respect to the Term SOFR Rate has not occurred, then the Term SOFR Reference Rate for such Term SOFR Determination Day will be the Term SOFR Reference Rate as published in respect of the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate was published by the CME Term SOFR Administrator, so long as such first preceding Business Day is not more than five (5) Business Days prior to such> Term SOFR< Determination Day>.

“Termination Date” means the Revolving Credit Termination Date and/or the maturity date of any New Term Loans, as the context so requires.

“Total Asset Value” means the sum without duplication of: (a) Total Property Operating Income for all Stabilized Properties for the preceding quarter multiplied by four, capitalized at the Capitalization Rate, plus (b) Earnings From Service Operations for the preceding 12 full calendar months capitalized at 12.5%, plus (c) 100% of the GAAP book value of Assets Under Development plus (d) 50% of the GAAP book value of Pre-Stabilized Assets, plus (e) the GAAP book value of Acquisition Assets plus (f) the amount of any Unrestricted Cash and Cash Equivalents (excluding restricted tenant security deposits, cash pledged to secure letters of credit and other indebtedness and other restricted deposits); provided that any amount of Unrestricted Cash and Cash Equivalents netted against Consolidated Total Indebtedness or Consolidated Secured Indebtedness per Sections 7.20 (ii) or (iv) shall be excluded from the calculation of Total Asset Value, plus (g) the lower of book value or appraised value based on appraisals received by the Borrower, if any, of land not under development. The amount described in clause (b) excludes gains on merchant build Properties from Earnings From Service Operations, and the amount described in clause (c) cannot exceed 10% of Total Asset Value. For purposes of this definition, if the Borrower has included guarantees related to any tax increment financing (or any other type of public financing where a government entity contributes to the project costs) as described in the definition of “Guarantee Obligation”, then the Total Asset Value of any Project subject to such financing shall be adjusted to exclude the related deduction in book value of such Project if the Borrower is using GAAP book value to determine the Total Asset Value of such Project.

For purposes of determining Total Asset Value, the contributions to Total Asset Value from investments in (i) land not under development, (ii) non-office/medical office/industrial/retail property holdings (excluding cash), (iii) stock holdings, (iv) mortgages, (v) passive non-real estate investments, and (vi) joint ventures and partnerships, will be capped as follows: (1) the Total Asset Value attributable to the first category (land not under development) shall not exceed 13% of Total Asset Value, (2) the Total Asset Value attributable to any one of categories (ii) through (v) shall not exceed 10% of Total Asset Value, (3) the Total Asset Value attributable to the sixth category (joint ventures and partnerships) shall not exceed 25% of Total Asset Value, and (4) the Total Asset Value attributable to all the foregoing investment categories will be limited, in the aggregate, to not more than 30% of Total Asset Value. Notwithstanding the foregoing Borrower shall be permitted to include investments in assets based in Canada or Mexico in the determination of Total Asset Value provided the leases on those assets are paid in United States Dollars or Canadian Dollars and Total Asset Value attributable to same shall not exceed 10% of Total Asset Value.

 

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For purposes of the preceding paragraph, non-revenue-generating investments and non- Project-revenue-generating assets will be valued at the lower of GAAP book value or appraised value based on appraisals received by the Borrower, if any.

“Total Property Operating Income” means the sum of (i) earnings from rental operations (computed in accordance with GAAP) plus depreciation, amortization and interest expense (adjusted for any acquisitions and divestitures), and (ii) (without redundancy) the Borrower’s pro rata share of Net Operating Income from Investment Affiliates. The earnings from rental operations shall be adjusted to include pro forma earnings (as substantiated to the satisfaction of the Administrative Agent) for an entire quarter for any property acquired or placed in service during the quarter and to exclude earnings during such quarter from any property not owned as of the end of the quarter.

“Transferee” is defined in Section 13.5.

“Type” means, with respect to any Advance or Loan, its nature as an ABR Advance or Loan or a LIBOR<Term Benchmark> Advance or Loan.

“UK Financial Institutions” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.

“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.

“Unencumbered Asset” means, with respect to any Project which is in service, as of the end of any fiscal quarter, the circumstance that such asset on such date (a) is not subject to any Liens or claims (including restrictions on transferability or assignability) of any kind (including any such Lien, claim or restriction imposed by the organizational documents of the Borrower or any Subsidiary, but excluding Permitted Liens other than those identified in Sections 7.15(v) and (vi)), (b) is not subject to any agreement (including (i) any agreement governing Indebtedness incurred in order to finance or refinance the acquisition of such asset, and (ii) if applicable, the organizational documents of the Borrower or any Subsidiary) which prohibits or limits the ability of the General Partner, the Borrower or any of their Subsidiaries to create, incur, assume or suffer to exist any Lien upon any assets or Capital Stock of the General Partner, the Borrower or any of their Subsidiaries, and (c) is not subject to any agreement (including any agreement governing Indebtedness incurred in order to finance or refinance the acquisition of such asset)

 

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which entitles any Person to the benefit of any Lien (but excluding Permitted Liens other than those identified in Sections 7.15(v) and (vi)) on any assets or Capital Stock of the General Partner, the Borrower or any of their Subsidiaries, or would entitle any Person to the benefit of any Lien (but excluding Permitted Liens other than those identified in Sections 7.15(v) and (vi)) on such assets or Capital Stock upon the occurrence of any contingency (including, without limitation, pursuant to an “equal and ratable” clause), (d) is 100% owned in fee simple or ground-leased under an Eligible Ground Lease by (i) the Borrower, (ii) a Subsidiary Guarantor or (iii) a Wholly-Owned Subsidiary of the Borrower (x) that is not a Guarantor, (y) that is not liable for any Indebtedness (including any guarantees of Indebtedness of another Person) and (z) that is not the subject of an event of the type described in Sections 8.7 or 8.8 (an “Unencumbered Property Subsidiary”), and (e) is in compliance with the representations in Section 6.20. For the purposes of this Agreement, any Property of a Subsidiary shall not be deemed to be unencumbered unless both (i) such Property and (ii) all Capital Stock of such Subsidiary held by the General Partner or the Borrower is unencumbered.

“Unencumbered Property Subsidiary” has the meaning set forth in the definition of Unencumbered Asset.

“Unfunded Liabilities” means the amount (if any) by which the present value of all vested nonforfeitable benefits under all Single Employer Plans exceeds the fair market value of all such Plan assets allocable to such benefits, all determined as of the then most recent valuation date for such Plans using the Plan’s on-going actuarial assumptions.

“Unmatured Default” means an event which but for the lapse of time or the giving of notice, or both, would constitute a Default.

“Unrestricted Cash and Cash Equivalents” means, as of any date of determination, the sum of (a) the aggregate amount of Unrestricted cash then held by the Borrower or any of its consolidated Subsidiaries and (b) the aggregate amount of Unrestricted Cash Equivalents (valued at the lower of cost and fair market value) then held by the Borrower or any of its consolidated Subsidiaries. As used in this definition, “Unrestricted” means the specified asset is not subject to any Liens or claims of any kind in favor of any Person (other than Liens in favor of a banking or other financial institution arising as a matter of law or under customary general terms and conditions encumbering deposits or other funds maintained with a financial institution (including the right of setoff).

“Unsecured Indebtedness” means Indebtedness that is not secured by a Lien.

<“U.S. Government Securities Business Day” means any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.>

“U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30) of the Code.

“U.S. Special Resolution Regime” has the meaning assigned to it in Section 10.19.

 

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“U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section 4.5(f)(ii)(B)(3).

“Wholly-Owned Subsidiary” of a Person means (i) any Subsidiary all of the outstanding voting securities of which shall at the time be owned or controlled, directly or indirectly, by such Person or one or more Wholly-Owned Subsidiaries of such Person, or by such Person and one or more Wholly Owned Subsidiaries of such Person or (ii) any partnership, association, joint venture or similar business organization 100% of the ownership interests having ordinary voting power of which shall at the time be so owned or controlled.

“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write- down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.

The foregoing definitions shall be equally applicable to both the singular and plural forms of the defined terms.

1.2. Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a “Revolving Loan”) or by Type (e.g., a “LIBOR<Term Benchmark> Loan”) or by Class and Type (e.g., a “LIBOR<Term Benchmark> Revolving Loan”). Advances also may be classified and referred to by Class (e.g., a “Revolving Advance”) or by Type (e.g., a “LIBOR<Term Benchmark> Advance”) or by Class and Type (e.g., a “LIBOR<Term Benchmark> Revolving Advance”).

1.3. Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, (e) any reference to any law, rule or regulation herein shall, unless otherwise specified, refer to such law, rule or regulation as amended, modified or supplemented from time to time and (f) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

 

 

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1.4. Interest Rates; LIBOR<Benchmark> Notification. The interest rate on LIBOR Loans is determined by reference to the LIBOR Rate, which is derived from the London interbank offered rate (“LIBOR”). LIBOR is intended to represent the rate at which contributing banks may obtain short-term borrowings from each other in the London interbank market On March 5<a Loan denominated in dollars may be derived from an interest rate benchmark that may be discontinued or is, or may in the future become>, 2021, the U.K. Financial Conduct Authority (“FCA”) publicly announced that: (a) immediately after December 31, 2021, publication of all seven euro LIBOR settings, all seven Swiss Franc LIBOR settings, the spot next, 1-week, 2-month and 12-month Japanese Yen LIBOR settings, the overnight, 1-week, 2- month and 12-month British Pound Sterling LIBOR settings, and the 1-week and 2-month U.S. Dollar LIBOR settings will permanently cease; immediately after June 30, 2023, publication of the overnight and 12-month U.S. Dollar LIBOR settings will permanently cease; immediately after December 31, 2021, the 1-month, 3-month and 6-month Japanese Yen LIBOR settings and the 1-month, 3-month and 6-month British Pound Sterling LIBOR settings will cease to be provided or, subject to consultation by the FCA, be provided on a changed methodology (or “synthetic”) basis and no longer be representative of the underlying market and economic reality they are intended to measure and that representativeness will not be restored; and immediately after June 30, 2023, the 1-month, 3-month and 6-month U.S. Dollar LIBOR settings will cease to be provided or, subject to the FCA’s consideration of the case, be provided on a synthetic basis and no longer be representative of the underlying market and economic reality they are intended to measure and that representativeness will not be restored. There is no assurance that dates announced by the FCA will not change or that the administrator of LIBOR and/or regulators will not take further action that could impact the availability, composition, or characteristics of LIBOR or the currencies and/or tenors for which LIBOR is published. Each party to this agreement should consult its own advisors to stay informed of any such developments. Public and private sector industry initiatives are currently underway to identify new or alternative reference rates to be used in place of LIBOR<subject of regulatory reform>. Upon the occurrence of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, Section 4.3(b) and (c) provide the<provides a> mechanism for determining an alternative rate of interest. The Administrative Agent will promptly notify the Borrower, pursuant to Section  4.3(e<d >), of any change to the reference rate upon which the interest rate on LIBOR Loans<a Term Benchmark Advance> is based. However, except for the obligations expressly set forth herein, the<The> Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission<, performance> or any other matter related to LIBOR or other rates in the definition of “LIBOR Rate”<any interest rate used in this Agreement,> or with respect to any alternative or successor rate thereto, or replacement rate thereof (including, without limitation, (i) any such alternative, successor or replacement rate implemented pursuant to Section4.3(b) or (c), whether upon the occurrence of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, and (ii) the implementation of any Benchmark Replacement Conforming Changes pursuant to Section 4.3(d)), including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to,

 

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or produce the same value or economic equivalence of, the LIBOR Rate<existing interest rate being replaced> or have the same volume or liquidity as did the London interbank offered<any existing interest> rate prior to its discontinuance or unavailability.< The Administrative Agent and its affiliates and/or other related entities may engage in transactions that affect the calculation of any interest rate used in this Agreement or any alternative, successor or alternative rate (including any Benchmark Replacement) and/or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain any interest rate used in this Agreement, any component thereof, or rates referenced in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service, except, solely with respect to the administration of such rate by the Administrative Agent, to the extent of direct and actual damages as are determined by a final nonappealable judgment of a court of competent jurisdiction to have resulted from the Administrative Agent’s gross negligence or willful misconduct in its administration of such rate.>

1.5. Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the amount of such Letter of Credit available to be drawn at such time; provided that with respect to any Letter of Credit that, by its terms or the terms of any letter of credit agreement related thereto, provides for one or more automatic increases in the available amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum amount is available to be drawn at such time.

1.6. Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized and acquired on the first date of its existence by the holders of its Equity Interests at such time.

ARTICLE II

THE CREDIT

2.1. Commitments. <(a) >From and including the date of this Agreement and prior to the Revolving Credit Termination Date, each Revolving Credit Lender severally, and not jointly, agrees, subject to the terms and conditions set forth in this Agreement, to make Revolving Loans denominated in U.S. Dollars to the Borrower from time to time prior to the Revolving Credit Termination Date, provided that the making of any such Revolving Loan will not cause the total of the outstanding principal balance of all Revolving Loans (including Competitive Bid Loans) and the Facility Letter of Credit Obligations to exceed the Aggregate Revolving Credit Commitment. Except for Competitive Bid Loans, each Revolving Credit Lender shall fund its

 

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Revolving Credit Percentage of each Advance of Revolving Loans and no Revolving Credit Lender will be required to fund any amount, which when aggregated with such Revolving Credit Lender’s Revolving Credit Percentage of: (i) all other Advances of Revolving Loans (other than Competitive Bid Loans) then outstanding and, (ii) Facility Letter of Credit Obligations would exceed such Lender’s Revolving Credit Commitment. Subject to the terms of this Agreement, the Borrower may borrow, repay and reborrow at any time prior to the Revolving Credit Termination Date. The Revolving Credit Commitments of each Lender to lend hereunder shall expire on the Revolving Credit Termination Date.

<(b) Each ><Initial New>< Term Loan Lender severally and not jointly agrees, subject to the terms and conditions set forth in this Agreement and in Amendment No. 1, to make Initial New Term Loans denominated in U.S. Dollars to the Borrower in a single drawing on the Amendment Effective Date (as defined in Amendment No. 1) in a principal amount equal to such Initial New Term Loan Lender’s Initial New Term Loan Commitment. The Initial New Term Loan Commitments of each Initial New Term Loan Lender to lend hereunder shall expire on the date on which the Initial New Term Loans are made hereunder. Any Initial New Term Loans that are repaid may not be reborrowed.>

2.2. Final Principal Payments. The Borrower promises to pay and shall pay all outstanding Advances of Revolving Loans and all other unpaid Obligations in connection with the Revolving Credit Facility in full on the Revolving Credit Termination Date.< The Borrower promises to pay and shall pay all outstanding Initial New Term Loans and all other unpaid Obligations in connection with the Initial New Term Loan Facility in full on the Initial New Term Loan Termination Date.>

2.3. Loans. Each Advance of Revolving Loans hereunder shall consist of Revolving Loans made from the several Revolving Credit Lenders ratably in proportion to the ratio that their respective Revolving Credit Commitments bear to the Aggregate Revolving Credit Commitment except for Competitive Bid Loans made in accordance with Section 2.15. The Advances of Revolving Loans may be ABR Advances or LIBOR<Term Benchmark> Advances, or a combination thereof, selected by the Borrower in accordance with Sections 2.10 and 2.11.< The Advance of Initial New Term Loans hereunder shall consist of Initial New Term Loans made from the several Initial New Term Loan Lenders ratably in proportion to the ratio that their respective Initial New Term Loan Commitments bear to the aggregate Initial New Term Loan Commitments of all Initial New Term Loan Lenders. The Advances of Initial New Term Loans may be ABR Advances or Term Benchmark Advances, or a combination thereof, selected by the Borrower in accordance with Sections 2.10 and 2.11.>

2.4. Applicable Margins. The ABR Applicable Margin and the LIBOR<Term Benchmark> Applicable Margin to be used in calculating the interest rate applicable to different Types of Advances shall vary from time to time in accordance with the long-term unsecured debt ratings of the Borrower as set forth in the table attached as Exhibit A for the Revolving Credit Facility< and the Initial New Term Loan Facility>. In the event that a rating agency shall discontinue its ratings of the REIT industry or the Borrower, a mutually agreeable substitute rating agency may be selected by the Required Lenders and the Borrower.

 

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If a rating agency downgrade or discontinuance results in an increase in an ABR Applicable Margin, a LIBOR<Term Benchmark> Applicable Margin or Facility Fee Rate and if such downgrade or discontinuance is reversed and the affected Applicable Margin or Facility Fee Rate is restored within ninety (90) days thereafter, at the Borrower’s request, the Borrower shall receive a credit against interest next due the applicable Lenders equal to interest accrued from time to time during such period of downgrade or discontinuance and actually paid by the Borrower on the Advances at the differential between such Applicable Margins, and the differential of the Facility Fees, if applicable, paid during such period of downgrade.

If a rating agency upgrade results in a decrease in an ABR Applicable Margin, a LIBOR<Term Benchmark> Applicable Margin or Facility Fee Rate and if such upgrade is reversed and the affected Applicable Margin or Facility Fee Rate is restored within ninety (90) days thereafter, the Borrower shall be required to pay an amount to the applicable Lenders equal to the interest differential on the Advances and the differential of the Facility Fees during such period of upgrade.

2.5. Facility Fee. The Borrower agrees to pay to the Administrative Agent for the account of each Revolving Credit Lender a facility fee (the “Facility Fee”) calculated at a per annum percentage (“Facility Fee Rate”) of the total Aggregate Revolving Credit Commitment. The Facility Fee Rate shall vary from time to time based on the Borrower’s long term unsecured debt rating as set forth in the table attached hereto as Exhibit A, and determined in a manner consistent with the provisions of Section 2.4 relating to Applicable Margins, and the Facility Fee shall be payable quarterly in arrears on the last day of each calendar quarter hereafter beginning March 31, 2021 and on the Revolving Credit Termination Date.

2.6. Other Fees. The Borrower will pay to the Arrangers, to the Administrative Agent and to Administrative Agent for the benefit of the Lenders on or before the date hereof the fees specified in that certain Fee Letter dated February 19, 2021.

2.7. Voluntary Reduction of Aggregate Revolving Credit Commitment Amount. Upon at least fifteen (15) days prior irrevocable written notice (or telephone notice promptly confirmed in writing) to the Administrative Agent, the Borrower shall have the right, without premium or penalty, to terminate permanently the Aggregate Revolving Credit Commitment in whole or in part provided that (a) Borrower may not reduce the Aggregate Revolving Credit Commitment below the Allocated Facility Amount at the time of such requested reduction, and (b) any such partial termination shall be in the minimum aggregate amount of Five Million Dollars ($5,000,000.00) or any integral multiple of Five Million Dollars ($5,000,000.00) in excess thereof. Any partial termination of the Aggregate Revolving Credit Commitment shall be applied pro rata to each Lender’s Revolving Credit Commitment.

2.8. Minimum Amount of Each Advance. Each LIBOR<Term Benchmark> Advance shall be in the minimum amount of $2,000,000 (and in multiples of $1,000,000 if in excess thereof), and each ABR Advance shall be in the minimum amount of $1,000,000 (and in multiples of $500,000 if in excess thereof), provided, however, that any ABR Advance may be in the amount of the unused Aggregate Revolving Credit Commitment.

 

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2.9. Optional Principal Payments. The Borrower may from time to time pay, without penalty or premium, all or any part of outstanding ABR Advances provided Administrative Agent receives notice of the payment by 10:00 a.m. Chicago time and the payment by 3:00 p.m. Chicago time. The Administrative Agent will notify the Lenders by 11:00 a.m. of any such notice received. The Borrower may from time to time pay a LIBOR<Term Benchmark> Advance, provided a LIBOR<Term Benchmark> Advance may not be paid prior to the last day of the applicable <Term Benchmark >Interest Period unless accompanied by any amount due pursuant to Section 4.4. A Competitive Bid Loan may not be paid prior to its maturity (unless agreed to by the Lender providing such Competitive Bid Loan), provided, however, that if a Competitive Bid Loan becomes due prior to its stated maturity due to acceleration of the Obligations, then payment of such Competitive Bid Loan shall be accompanied by any amount due pursuant to Section 4.4. Any New Term Loan that is repaid may not be reborrowed.

2.10. Method of Selecting Types and Interest Periods for New Advances. The Borrower shall select the Type of Advance and, in the case of each LIBOR<Term Benchmark> Advance, the Interest Period applicable to each Advance from time to time. The Borrower shall give the Administrative Agent irrevocable notice (a “Borrowing Notice”) (i) not later than 10:00 a.m. Chicago time on the Borrowing Date of each ABR Advance, (ii) not later than 10:00 a.m. Chicago time, at least three (3) Business Days before the Borrowing Date for each LIBOR<Term Benchmark> Advance, specifying:

(a) the Borrowing Date, which shall be a Business Day, of such Advance, (b) the aggregate amount of such Advance,

(c) the Class of such Advance,

(d) the Type of Advance selected, and

(e) in the case of each LIBOR<Term Benchmark> Advance, the Interest Period applicable thereto.

Not later than noon (or 2:00 p.m., in the case of an ABR Advance requested on such Borrowing Date) (Chicago time) on each Borrowing Date, each applicable Lender shall make available its Loan or Loans, in funds immediately available in Chicago to the Administrative Agent at its address specified pursuant to Article XIV. The applicable Lenders shall not be obligated to match fund their LIBOR<Term Benchmark> Advances. The Administrative Agent will make the funds so received from the Lenders available to the Borrower on such Business Day.

No Interest Period may end after the applicable Termination Date and, unless all of the applicable Lenders otherwise agree in writing, in no event may there be more than seven (7) different Interest Periods for LIBOR<Term Benchmark> Advances (other than Competitive Bid Loans) outstanding at any one time for any Class of Advance.

 

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2.11. Conversion and Continuation of Outstanding Advances. ABR Advances shall continue as ABR Advances unless and until such ABR Advances are converted into LIBOR<Term Benchmark> Advances. Each LIBOR<Term Benchmark> Advance shall continue as a LIBOR<Term Benchmark> Advance until the end of the then applicable Interest Period therefor, at which time such LIBOR<Term Benchmark> Advance shall be automatically converted into an ABR Advance unless the Borrower shall have given the Administrative Agent a Conversion/Continuation Notice requesting that, at the end of such Interest Period, such LIBOR<Term Benchmark> Advance continue as a LIBOR<Term Benchmark> Advance for the same or another Interest Period. Subject to the terms of Section 2.8, the Borrower may elect from time to time to convert all or any part of an Advance of any Type into any other Type of Advance; provided that any conversion of any LIBOR<Term Benchmark> Advance shall be made on, and only on, the last day of the Interest Period applicable thereto. The Borrower shall give the Administrative Agent irrevocable notice (a “Conversion/Continuation Notice”) of each conversion of an Advance or continuation of a LIBOR<Term Benchmark> Advance not later than 10:00 a.m. (Chicago time) on the Business Day of the requested conversion or continuation, in the case of a conversion into an ABR Advance, or three (3) Business Days, in the case of a conversion into or continuation of a LIBOR<Term Benchmark> Advance, prior to the date of the requested conversion or continuation, specifying:

(i) the requested date which shall be a Business Day, of such conversion or continuation;

(ii) the aggregate amount, Class and Type of the Advance which is to be converted or continued; and

(iii) the amount, Class and Type(s) of Advance(s) into which such Advance is to be converted or continued and, in the case of a conversion into or continuation of a LIBOR<Term Benchmark> Advance, the duration of the Interest Period applicable thereto.

2.12. Changes in Interest Rate, Etc. Each ABR Advance shall bear interest on the outstanding principal amount thereof, for each day from and including the date such Advance is made or is converted from a LIBOR<Term Benchmark> Advance into an ABR Advance pursuant to Section 2.11 to but excluding the date it becomes due or is converted into a LIBOR<Term Benchmark> Advance pursuant to Section 2.11 hereof, at a rate per annum equal to the applicable ABR Rate for such day. Changes in the rate of interest on that portion of any Advance maintained as an ABR Advance will take effect simultaneously with each change in the Alternate Base Rate. Each LIBOR<Term Benchmark> Advance shall bear interest from and including the first day of the Interest Period applicable thereto to (but not including) the last day of such Interest Period at the interest rate determined as applicable to such LIBOR<Term Benchmark> Advance.

2.13. Rates Applicable After Default. Notwithstanding anything to the contrary contained in Section 2.10, 2.11 or 2.12, during the continuance of a Default or Unmatured Default the Required Lenders may, at their option, by notice to the Borrower (which notice may be revoked at the option of the Required Lenders notwithstanding any provision of Section 9.2 requiring unanimous consent of the Lenders under a Facility to changes in interest rates with respect to such Facility), declare that no Advance may be made as, converted into or continued beyond its current term as a LIBOR<Term Benchmark> Advance. During the continuance of a Default the Required Lenders may, at their option, by notice to the Borrower (which notice may

 

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be revoked at the option of the Required Lenders notwithstanding any provision of Section 9.2 requiring unanimous consent of the Lenders under a Facility to changes in interest rates with respect to such Facility), declare that (i) each LIBOR<Term Benchmark> Advance shall bear interest for the remainder of the applicable Interest Period at the rate otherwise applicable to such Interest Period plus 2% per annum and (ii) each ABR Advance shall bear interest at a rate per annum equal to the ABR Rate otherwise applicable to the ABR Advance plus 2% per annum and the Facility Letter of Credit Fee shall increase by 2% per annum; provided that such rates and increase in the Facility Letter of Credit Fee shall become applicable automatically without notice to the Borrower or an election or action by the Administrative Agent or any Lender if a Default occurs under Section 8.7 or Section 8.8, or a Default occurs relating to the payment of principal or interest, unless waived by the Required Lenders.

2.14. [Reserved].

2.15. Competitive Bid Loans.

(a) Competitive Bid Option. In addition to ratable Advances pursuant to Section 2.3, but subject to the terms and conditions of this Agreement (including, without limitation the limitation set forth in Section 2.1 as to the maximum amount of all Revolving Loans and the Facility Letter of Credit Obligations not exceeding the Aggregate Revolving Credit Commitment), the Borrower may, as set forth in this Section 2.15, request the Revolving Credit Lenders, prior to the Revolving Credit Termination Date, to make offers for Competitive Bid Loans to the Borrower. Each Revolving Credit Lender 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 2.15. Competitive Bid Loans shall be evidenced by the Competitive Bid Notes.

(b) Competitive Bid Quote Request. When the Borrower wishes to request offers to make Competitive Bid Loans under this Section 2.15, it shall transmit to the Administrative Agent by telecopy a Competitive Bid Quote Request substantially in the form of Exhibit C-1 hereto so as to be received no later than (i) 10:00 a.m. (Chicago time) at least five (5) Business Days prior to the Borrowing Date proposed therein, in the case of a request for a Competitive LIBOR<Term Benchmark> Margin or (ii) 9:00 a.m. (Chicago time) at least one (1) Business Day prior to the Borrowing Date proposed therein, in the case of a request for an Absolute Rate specifying:

(i) the proposed Borrowing Date for the proposed Competitive Bid Loan,

(ii) the requested aggregate principal amount of such Competitive Bid Loan which must be at least $5,000,000 and an integral multiple of $1,000,000,

(iii) whether the Competitive Bid Quotes requested are to set forth a Competitive LIBOR<Term Benchmark> Margin or an Absolute Rate, or both, and

(iv) the LIBOR<Term Benchmark> Interest Period, if a Competitive LIBOR<Term Benchmark> Margin is requested, or the Absolute Interest Period, if an Absolute Rate is requested.

 

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The Borrower may request offers to make Competitive Bid Loans for more than one (1) (but not more than five (5)) Interest Periods in a single Competitive Bid Quote Request. No Competitive Bid Quote Request shall be given within five (5) Business Days (or such other number of days as the Borrower and the Administrative Agent may agree) of any other Competitive Bid Quote Request. A Competitive Bid Quote Request that does not conform substantially to the form of Exhibit C-1 hereto shall be rejected, and the Administrative Agent shall promptly notify the Borrower of such rejection by telecopy.

(c) Invitation for Competitive Bid Quotes. Promptly and in any event before the close of business on the same Business Day of receipt of a Competitive Bid Quote Request that is not rejected pursuant to Section 2.15(b), the Administrative Agent shall send to each of the Revolving Credit Lenders by telecopy an Invitation for Competitive Bid Quotes substantially in the form of Exhibit C-2 hereto, which shall constitute an invitation by the Borrower to each Revolving Credit Lender to submit Competitive Bid Quotes offering to make the Competitive Bid Loans to which such Competitive Bid Quote Request relates in accordance with this Section 2.15.

(d) Submission and Contents of Competitive Bid Quotes.

(i) Each Revolving Credit Lender may, in its sole discretion, submit a Competitive Bid Quote containing an offer or offers to make Competitive Bid Loans in response to any Invitation for Competitive Bid Quotes. Each Competitive Bid Quote must comply with the requirements of this Section 2.15(d) and must be submitted to the Administrative Agent by telex or telecopy at its offices not later than (a) 9:00 a.m. (Chicago time) at least three (3) Business Days prior to the proposed Borrowing Date, in the case of a request for a Competitive LIBOR<Term Benchmark> Margin or (b) 9:00 a.m. (Chicago time) on the proposed Borrowing Date, in the case of a request for an Absolute Rate (or, in either case upon reasonable prior notice to the Revolving Credit Lenders, such other time and rate as the Borrower and the Administrative Agent may agree); provided that Competitive Bid Quotes submitted by the Administrative Agent may only be submitted if the Administrative Agent notifies the Borrower of the terms of the Offer or Offers contained therein no later than sixty (60) minutes prior to the latest time at which the relevant Competitive Bid Quotes must be submitted by the other Revolving Credit Lenders. Subject to the Borrower’s compliance with all other conditions to disbursement herein, any Competitive Bid Quote so made shall be irrevocable except with the written consent of the Administrative Agent given on the instructions of the Borrower.

(ii) Each Competitive Bid Quote shall be in substantially the form of Exhibit C-3 hereto and shall in any case specify:

 

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(1) the proposed Borrowing Date, which shall be the same as that set forth in the applicable Invitation for Competitive Bid Quotes,

(2) the principal amount of the Competitive Bid Loan for which each such offer is being made, which principal amount (x) may be greater than, less than or equal to the Revolving Credit Commitment of the quoting Revolving Credit Lender, (y) must be at least $5,000,000 and an integral multiple of $1,000,000, and (z) may not exceed the principal amount of Competitive Bid Loans for which offers are requested,

(3) as applicable, the Competitive LIBOR<Term Benchmark> Margin and Absolute Rate offered for each such Competitive Bid Loan,

(4) the minimum amount, if any, of the Competitive Bid Loan which may be accepted by the Borrower, and

(5) the identity of the quoting Revolving Credit Lender, provided that such Competitive Bid Loan may be funded by such Revolving Credit Lender’s Designated Lender as provided in Section 2.15(j), regardless of whether that is specified in the Competitive Bid Quote.

(iii) The Administrative Agent shall reject any Competitive Bid Quote that:

(1) is not substantially in the form of Exhibit C-3 hereto or does not specify all of the information required by Section 2.15(d)(ii),

(2) contains qualifying, conditional or similar language, other than any such language contained in Exhibit C-3 hereto,

(3) proposes terms other than or in addition to those set forth in the applicable Invitation for Competitive Bid Quotes, or

(4) arrives after the time set forth in Section 2.15(d)(i).

If any Competitive Bid Quote shall be rejected pursuant to this Section 2.15(d)(iii), then the Administrative Agent shall notify the relevant Revolving Credit Lender of such rejection as soon as practical.

(e) Notice to Borrower. The Administrative Agent shall promptly notify the Borrower of the terms (i) of any Competitive Bid Quote submitted by a Revolving Credit Lender that is in accordance with Section 2.15(d) and (ii) of any Competitive Bid Quote that amends, modifies or is otherwise inconsistent with a previous Competitive Bid Quote submitted by such Revolving Credit Lender with respect to the same Competitive Bid Quote Request. Any such subsequent Competitive Bid Quote shall be disregarded by the Administrative Agent unless such subsequent Competitive Bid Quote specifically states that it is submitted solely to correct a manifest error in such former Competitive Bid Quote. The Administrative Agent’s notice to the Borrower shall specify the aggregate principal amount of Competitive Bid Loans for which offers have been received for each Interest Period specified in the related Competitive Bid Quote Request and the respective principal amounts and Competitive LIBOR<Term Benchmark> Margins or Absolute Rate, as the case may be, so offered.

 

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(f) Acceptance and Notice by Borrower. Not later than (i) 10:00 a.m. (Chicago time) at least three (3) Business Days prior to the proposed Borrowing Date in the case of a request for a Competitive LIBOR<Term Benchmark> Margin or (ii) 10:00 a.m. (Chicago time) on the proposed Borrowing Date, in the case of a request for an Absolute Rate (or, in either case upon reasonable prior notice to the Revolving Credit Lenders, such other time and date as the Borrower and the Administrative Agent may agree), the Borrower shall notify the Administrative Agent of its acceptance or rejection of the offers so notified to it pursuant to Section 2.15(e); provided, however, that the failure by the Borrower to give such notice to the Administrative Agent shall be deemed to be a rejection of all such offers. In the case of acceptance, such notice (a “Competitive Bid Borrowing Notice”) shall specify the aggregate principal amount of offers for each Interest Period that are accepted. The Borrower may accept any Competitive Bid Quote in whole or in part (subject to the terms of Section 2.15(d)(iii)); provided that:

(i) the aggregate principal amount of all Competitive Bid Loans to be disbursed on a given Borrowing Date may not exceed the applicable amount set forth in the related Competitive Bid Quote Request,

(ii) acceptance of offers may only be made on the basis of ascending Competitive LIBOR<Term Benchmark> Margins or Absolute Rates, as the case may be, and

(iii) the Borrower may not accept any offer that is described in Section 2.15(d)(iii) or that otherwise fails to comply with the requirements of this Agreement.

(g) Allocation by Administrative Agent. If offers are made by two (2) or more Revolving Credit Lenders with the same Competitive LIBOR<Term Benchmark> Margins or Absolute Rates, as the case may be, for a greater aggregate principal amount than the amount in respect of which offers are accepted for the related Interest Period, the principal amount of Competitive Bid Loans in respect of which such offers are accepted shall be allocated by the Administrative Agent among such Revolving Credit Lenders as nearly as possible (in such multiples, not greater than $1,000,000, as the Administrative Agent may deem appropriate) in proportion to the aggregate principal amount of such offers provided, however, that no Revolving Credit Lender shall be allocated any Competitive Bid Loan which is less than the minimum amount which such Revolving Credit Lender has indicated that it is willing to accept. Allocations by the Administrative Agent of the amounts of Competitive Bid Loans shall be conclusive in the absence of manifest error. The Administrative Agent shall promptly, but in any event on the same Business Day, notify each Revolving Credit Lender of its receipt of a Competitive Bid Borrowing Notice and the principal amounts of the Competitive Bid Loans allocated to each participating Revolving Credit Lender.

 

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(h) Administration Fee. The Borrower hereby agrees to pay to the Administrative Agent an administration fee of $2,500 per each Competitive Bid Quote Request transmitted by the Borrower to the Administrative Agent pursuant to Section 2.15(b). Such administration fee shall be payable monthly in arrears on the first Business Day of each month and on the Revolving Credit Termination Date (or such earlier date on which the Aggregate Revolving Credit Commitment shall terminate or be cancelled) for any period then ending for which such fee, if any, shall not have been theretofore paid.

(i) Other Terms. Any Competitive Bid Loan shall not reduce the Revolving Credit Commitment of the Revolving Credit Lender making such Competitive Bid Loan, and each such Revolving Credit Lender shall continue to be obligated to fund its full Revolving Credit Percentage of all pro rata Advances of Revolving Loans and participate in Facility Letters of Credit under the Revolving Credit Facility. In no event can the aggregate amount of all Competitive Bid Loans at any time exceed fifty percent (50%) of the then Aggregate Revolving Credit Commitment. Competitive Bid Loans shall not be prepaid prior to the end of the applicable Interest Period. Competitive Bid Loans may not be continued and, if not repaid at the end of the Interest Period applicable thereto, shall (subject to the conditions set forth in this Agreement) be replaced by new Competitive Bid Loans made in accordance with this Section 2.15 or by ratable Advances of Revolving Loans in accordance with Section 2.11.

(j) Designated Lenders. A Revolving Credit Lender may designate its Designated Lender to fund a Competitive Bid Loan on its behalf as described in Section 2.15(d)(ii)(5). Any Designated Lender which funds a Competitive Bid Loan shall on and after the time of such funding become the obligee under such Competitive Bid Loan and be entitled to receive payment thereof when due. No Revolving Credit Lender shall be relieved of its obligation to fund a Competitive Bid Loan, and no Designated Lender shall assume such obligation, prior to the time such Competitive Bid Loan is funded.

2.16. Method of Payment. All payments of the Obligations hereunder shall be made, without setoff, deduction, or counterclaim, in immediately available funds to the Administrative Agent at the Administrative Agent’s address specified pursuant to Article XIV, or at any other Lending Installation of the Administrative Agent specified in writing by the Administrative Agent to the Borrower, by noon (Chicago time) on the date when due and shall be applied by the Administrative Agent among the applicable Lenders in accordance with the Class or Type of Obligation being paid. Each payment delivered to the Administrative Agent for the account of any Lender shall be delivered by the Administrative Agent to such Lender in the same type of funds that the Administrative Agent received at such Lender’s address specified pursuant to Article XIV or at any Lending Installation specified in a notice received by the Administrative Agent from such Lender promptly, which payment is expected to be made to such Lender by the close of business on the same Business Day received by Administrative Agent if received by noon (Chicago time) but shall in any event not be made to such Lender later than the next Business Day, provided that the Administrative Agent shall pay to each such Lender interest thereon, at the lesser of (i) the Federal Funds Effective Rate and (ii) the rate of interest applicable to such Loans, from the Business Day such funds are received by the Administrative Agent in immediately available funds (provided, if such funds are not received by the Administrative Agent by noon (Chicago time), such period shall commence on the Business Day immediately following the day such funds are received) until such funds are paid to each such Lender. The Administrative Agent is hereby authorized to charge the account of the Borrower maintained with Administrative Agent for each payment of any of the Obligations as it becomes due hereunder.

 

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2.17. Notes; Telephonic Notices. Each Lender is hereby authorized to record the principal amount of each of its Loans and each repayment on the schedule attached to each of its Notes, provided, however, that the failure to so record shall not affect the Borrower’s obligations under such Note. Each Lender’s books and records, including without limitation, the information, if any, recorded by the Lender on the Schedule attached to each of its Notes, shall be deemed to be prima facia correct. The Borrower hereby authorizes the Lenders and the Administrative Agent to extend, convert or continue Advances, effect selections of Types of Advances and to transfer funds based on telephonic notices made by any person or persons the Administrative Agent or any Lender in good faith believes to be acting on behalf of the Borrower. The Borrower agrees to deliver promptly to the Administrative Agent a written confirmation signed by an Authorized Officer of each telephonic notice, if such confirmation is requested by the Administrative Agent or any Lender. If the written confirmation differs in any material respect from the action taken by the Administrative Agent and the applicable Lenders, the records of the Administrative Agent and such Lenders shall govern absent manifest error.

2.18. Interest Payment Dates; Interest and Fee Basis. Interest accrued on each ABR Advance shall be payable on each Payment Date, commencing with the first such date to occur after the date hereof, on any date on which such ABR Advance is prepaid, whether due to acceleration or otherwise, and at maturity. Interest accrued on that portion of the outstanding principal amount of any ABR Advance converted into a LIBOR<Term Benchmark> Advance on a day other than a Payment Date shall be payable on the date of conversion. Interest accrued on each LIBOR<Term Benchmark> Advance shall be payable on the last day of its applicable Interest Period, on any date on which such LIBOR<Term Benchmark> Advance is prepaid, whether by acceleration or otherwise, and at maturity. Interest accrued on each LIBOR<Term Benchmark> Advance having an Interest Period longer than three months shall also be payable on the last day of each three-month interval during such Interest Period. Interest accruing at the rate set forth in Section 2.13 shall be payable on demand. Interest, Facility Fees and Facility Letter of Credit Fees shall be calculated for actual days elapsed on the basis of a 360-day year. Interest shall be payable for the day an Advance is made but not for the day of any payment on the amount paid if payment is received prior to noon (Chicago time) at the place of payment. If any payment of principal of or interest on an Advance shall become due on a day which is not a Business Day, such payment shall be made on the next succeeding Business Day and, in the case of a principal payment, such extension of time shall be included in computing interest in connection with such payment.

2.19. Notification of Advances, Interest Rates and Prepayments. Promptly after receipt thereof (but in no event later than 11:00 a.m. (Chicago time) on the proposed Borrowing Date for an ABR Advance or three (3) Business Days prior to the proposed Borrowing Date for a LIBOR<Term Benchmark> Advance) the Administrative Agent will notify each applicable Lender of the contents of each Borrowing Notice, Conversion/Continuation Notice, and repayment notice received by it hereunder. The Administrative Agent will notify each applicable Lender of the interest rate applicable to each LIBOR<Term Benchmark> Advance promptly upon determination of such interest rate and will give each applicable Lender prompt notice of each change in the Alternate Base Rate.

 

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2.20. Lending Installations. Each Lender may book its Loans and, if applicable, its participation in Facility Letters of Credit at any Lending Installation selected by such Lender and may change its Lending Installation from time to time. All terms of this Agreement shall apply to any such Lending Installation and the Notes shall be deemed held by each Lender for the benefit of such Lending Installation. Each Lender may, by written or telex notice to the Administrative Agent and the Borrower, designate a Lending Installation through which Loans will be made by it or, if applicable, Facility Letters of Credit will be issued by it and for whose account Loan payments or payments with respect to Facility Letters of Credit are to be made.

2.21. Non-Receipt of Funds by the Administrative Agent. (a) Unless the Borrower or a Lender, as the case may be, notifies the Administrative Agent prior to the date on which it is scheduled to make payment to the Administrative Agent of (i) in the case of a Lender, the proceeds of a Loan or (ii) in the case of the Borrower, a payment of principal, interest or fees to the Administrative Agent for the account of the Lenders, that it does not intend to make such payment, the Administrative Agent may assume that such payment has been made. The Administrative Agent may, but shall not be obligated to, make the amount of such payment available to the intended recipient in reliance upon such assumption. If such Lender or the Borrower, as the case may be, has not in fact made such payment to the Administrative Agent, the recipient of such payment shall, on demand by the Administrative Agent, repay to the Administrative Agent the amount so made available together with interest thereon in respect of each day during the period commencing on the date such amount was so made available by the Administrative Agent until the date the Administrative Agent recovers such amount at a rate per annum equal to (i) in the case of payment by a Lender, the Federal Funds Effective Rate for such day or (ii) in the case of payment by the Borrower, the interest rate applicable to the relevant Loan.

(b) Notwithstanding anything to the contrary in Section 2.23, if any Lender shall fail to make any payment required to be made by it pursuant to Sections 2.10, 2.21(a), 3.5, 3.11 or 11.8 hereof, then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender and for the benefit of the Administrative Agent or the Issuing Bank, if applicable, to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid, and/or (ii) so long as such Lender has unsatisfied obligations under such Sections, hold any such amounts in a segregated account as cash collateral for, and application to, any such unsatisfied obligations or any contingent reimbursement obligations of such Lender with respect to then outstanding Facility Letters of Credit; in the case of each of (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.

2.22. Usury. This Agreement and each Note are subject to the express condition that at no time shall the Borrower be obligated or required to pay interest on the principal balance of the Loans at a rate which could subject any Lender (including any Designated Lender) to either civil or criminal liability as a result of being in excess of the Maximum Legal Rate. If by the terms of this Agreement or the Loan Documents, the Borrower is at any time required or obligated to pay

 

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interest on the principal balance due hereunder at a rate in excess of the Maximum Legal Rate, the interest rate or the rate of interest set forth in Section 2.13, as the case may be, shall be deemed to be immediately reduced to the Maximum Legal Rate and all previous payments in excess of the Maximum Legal Rate shall be deemed to have been payments in reduction of principal and not on account of the interest due hereunder. All sums paid or agreed to be paid to a Lender for the use, forbearance, or detention of the sums due under the Loans, shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full stated term of the Loans until payment in full so that the rate or amount of interest on account of the Loans does not exceed the Maximum Legal Rate of interest from time to time in effect and applicable to the Loan for so long as the Loan is outstanding.

2.23. Applications of Moneys Received. (a) After the occurrence and during the continuance of a Default, all moneys collected or received by the Administrative Agent on account of the Revolving Credit Facility directly or indirectly, shall be applied in the following order of priority with respect to each payment so collected or received:

(i) to the payment of all reasonable costs incurred in the collection of such moneys of which the Administrative Agent shall have given notice to the Borrower;

(ii) to the reimbursement of any yield protection due to the Revolving Credit Lenders in accordance with Section 4.1;

(iii) (A) to the payment of any fee due pursuant to Section 3.12(b) in connection with the issuance of a Facility Letter of Credit to the Issuing Bank, (B) subject to Section 2.24, to the payment of the Facility Fee to the Revolving Credit Lenders, if then due, in accordance with their respective Revolving Credit Percentages and (C) to the payment of the Administrative Agent’s fee to the Administrative Agent if then due;

(iv) (a) in case the entire unpaid principal of the Obligations in connection with the Revolving Credit Facility shall not have become due and payable, the whole amount received as interest and the Facility Letter of Credit Fee then due to the Revolving Credit Lenders (other than Defaulting Lenders) as their respective Revolving Credit Percentages appear (except to the extent there are Competitive Bid Loans outstanding in which event the full amount of interest attributable to the Competitive Bid Loans shall be payable to the Competitive Bid Lenders, unless the Competitive Bid Lender shall be a Defaulting Lender), and the whole amount, if any, received as principal then due to the Revolving Credit Lenders as their respective Revolving Credit Funded Percentages appear, or (b) in case the entire unpaid principal of the Obligations in connection with the Revolving Credit Facility shall have become due and payable, as a result of a Default or otherwise, to the payment of the whole amount then due and payable on the Revolving Loans for principal, together with interest thereon or the rate of interest set forth in Section 2.13 or the interest rate, as applicable, to the Revolving Credit Lenders (other than Defaulting Lenders) as their respective Revolving Credit Funded Percentages appear until paid in full and then to the Letter of Credit Collateral Account until the full amount of Facility Letter of Credit Obligations is on deposit therein;

 

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(v) subject to Section 2.24, to the payment of any principal, interest and fees due to each Defaulting Lender in connection with the Revolving Credit Facility (provided that Administrative Agent shall have the right to setoff against such sums any amounts due from such Defaulting Lender); and

(vi) to the payment of all other Obligations owing to the Revolving Credit Lenders.

(b) After the occurrence and during the continuance of a Default, all moneys collected or received by the Administrative Agent on account of a New Term Loan Facility directly or indirectly, shall be applied in the following order of priority with respect to each payment so collected or received:

(i) to the payment of all reasonable costs incurred in the collection of such moneys of which the Administrative Agent shall have given notice to the Borrower;

(ii) to the reimbursement of any yield protection due to the New Term Loan Lenders under such New Term Loan Facility in accordance with Section 4.1;

(iii) to the payment of the Administrative Agent’s fee to the Administrative Agent if then due;

(iv) (a) in case the entire unpaid principal of the Obligations in connection with such New Term Loan Facility shall not have become due and payable, the whole amount received as interest then due to such New Term Loan Lenders (other than Defaulting Lenders) as their respective New Term Loan Funded Percentages appear, and the whole amount, if any, received as principal then due to such New Term Loan Lenders, to such New Term Loan Lenders as their respective New Term Loan Funded Percentages appear, or (b) in case the entire unpaid principal of the Obligations in connection with such New Term Loan Facility shall have become due and payable, as a result of a Default or otherwise, to the payment of the whole amount then due and payable on such New Term Loans for principal, together with interest thereon at the rate of interest set forth in Section 2.13 or the interest rate, as applicable, to such New Term Loan Lenders (other than Defaulting Lenders) as their respective New Term Loan Funded Percentages appear until paid in full;

(v) subject to Section 2.24, to the payment of any principal, interest and fees due to each Defaulting Lender in connection with the New Term Loan Facility (provided that Administrative Agent shall have the right to setoff against such sums any amounts due from such Defaulting Lender); and

 

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(vi) to the payment of all other Obligations owing to such New Term Loan Lenders.

(c) After the occurrence and during the continuance of a Default, if the Administrative Agent collects or receives any moneys and is unable to determine to which Facility such moneys should be applied, the Administrative Agent shall apply such funds in the following order of priority with respect to each payment so collected or received:

(i) to the payment of all reasonable costs incurred in the collection of such moneys of which the Administrative Agent shall have given notice to the Borrower;

(ii) to the reimbursement of any yield protection due to the Lenders in accordance with Section 4.1;

(iii) to the payment of the Administrative Agent’s fee to the Administrative Agent if then due; and

(iv) to the New Term Loan Lenders and the Revolving Credit Lenders on a pro-rata basis in accordance with the outstanding principal amount of any New Term Loans and the Revolving Loans for further application to any New Term Loan Facility or the Revolving Credit Facility in accordance with paragraph (a) or (b) above, as applicable.

2.24. Defaulting Lenders.

Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:

(a) fees shall cease to accrue on the unused portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.5, and fees shall continue to accrue on the used portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.5, but shall not be payable to such Defaulting Lender by the Borrower until such Defaulting Lender ceases to be a Defaulting Lender;

(b) the Commitments and Outstanding Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 9.2), provided that any waiver, amendment or modification that increases a Commitment of a Defaulting Lender, forgives all or any portion of the principal amount of any Loan or reimbursement obligation or interest thereon owing to a Defaulting Lender, reduces the Applicable Margin on the underlying interest rate options owing to a Defaulting Lender or extends a Termination Date shall require the consent of such Defaulting Lender;

(c) if any Facility Letter of Credit Exposure exists at the time a Revolving Credit Lender becomes a Defaulting Lender then:

 

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(i) all or any part of such Facility Letter of Credit Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Revolving Credit Percentages but only to the extent (x) the sum of all non- Defaulting Lenders’ Outstanding Revolving Credit Exposures plus such Defaulting Lender’s Facility Letter of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments, (y) the sum of each non-Defaulting Lender’s Outstanding Revolving Credit Exposures would not exceed its Revolving Credit Commitment and (z) the conditions set forth in Section 5.2 are satisfied at such time; and

(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall, within five (5) Business Days following notice by the Administrative Agent, cash collateralize such Defaulting Lender’s Facility Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 3.14 for so long as such Facility Letter of Credit Exposure is outstanding;

(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Facility Letter of Credit Exposure pursuant to Section 2.24(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 3.12(a) with respect to such Defaulting Lender’s Facility Letter of Credit Exposure during the period such Defaulting Lender’s Facility Letter of Credit Exposure is cash collateralized;

(iv) if the Facility Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to Section 2.24(c), then the fees payable to the Revolving Credit Lenders pursuant to Section 2.5 and Section 3.12(a) shall be adjusted in accordance with such non-Defaulting Lenders’ Revolving Credit Percentages; or

(v) if any Defaulting Lender’s Facility Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to Section 2.24(c), then, without prejudice to any rights or remedies of the Issuing Bank or any Revolving Credit Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Credit Commitment that was utilized by such Facility Letter of Credit Exposure) and Facility Letter of Credit Fees payable under Section 3.12(a) with respect to such Defaulting Lender’s Facility Letter of Credit Exposure shall be payable to the Issuing Bank until such Facility Letter of Credit Exposure is cash collateralized and/or reallocated;

(d) so long as any Revolving Credit Lender is a Defaulting Lender, the Issuing Bank shall not be required to issue, amend or increase any Facility Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in the amount of the Defaulting Lender’s Facility Letter of Credit Exposure in accordance with Section 2.24(c), and participating interests in any such newly issued or increased Facility Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.24(c)(i) (and Defaulting Lenders shall not participate therein); and

 

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(e) any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 2.23 or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 12.1 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Bank hereunder; third, to cash collateralize Facility Letter of Credit Exposure with respect to such Defaulting Lender in accordance with this Section; fourth, as the Borrower may request (so long as no Unmatured Default or Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) cash collateralize future Facility Letter of Credit Exposure with respect to such Defaulting Lender with respect to future Facility Letters of Credit issued under this Agreement, in accordance with this Section; sixth, to the payment of any amounts owing to the Lenders or the Issuing Banks as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Issuing Banks against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement or under any other Loan Document; seventh, so long as no Unmatured Default or 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 or under any other Loan Document; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligation in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Facility Letters of Credit were issued at a time when the conditions set forth in Section 5.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligation owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in the Borrower’s obligations corresponding to such Defaulting Lender’s Facility Letter of Credit Exposure are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (c) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

If (i) a Bankruptcy Event or Bail-In Action with respect to a Lender Parent shall occur following the date hereof and for so long as such event shall continue or (ii) the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Issuing Bank shall not be

 

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required to issue, amend or increase any Facility Letter of Credit, unless the related exposure and the Defaulting Lender’s then outstanding Facility Letter of Credit Exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders or the Issuing Bank shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Issuing Bank to defease any risk to it in respect of such Lender hereunder.

In the event that the Administrative Agent, the Borrower, and, if applicable, the Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Facility Letter of Credit Exposure of the Revolving Credit Lenders shall be readjusted to reflect the inclusion of such Revolving Credit Lender’s Revolving Credit Commitment and on such date such Revolving Credit Lender shall purchase at par such of the Revolving Loans of the other Revolving Credit Lenders (other than Competitive Loans) as the Administrative shall determine may be necessary in order for such Revolving Credit Lender to hold such Revolving Loans in accordance with its Revolving Credit Percentage.

2.25. Incremental Loans. The Borrower may by written notice to the Administrative Agent, elect to establish (i) one or more term loan commitments (the “New Term Loan Commitments”) and/or (ii) one or more new revolving credit commitments (the “New Revolving Credit Commitments”), in an aggregate amount for all New Term Loan Commitments and New Revolving Credit Commitments up to $800,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the New Term Loan Commitments and/or New Revolving Credit Commitments shall be effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent, (B) the< aggregate> amount of such New Term Loan Commitments and/or New Revolving Credit Commitments, which must be at least $25,000,000, and (C) the identity of each (x) Lender or (y) other Assignee that has been approved in writing by the Administrative Agent (which approval, in the case of the Administrative Agent, will not be unreasonably withheld or delayed) and the Borrower (each such Lender or Assignee, a “New Term Loan Lender” or a “New Revolving Credit Lender”, as applicable) to which such New Term Loan Commitments and/or New Revolving Credit Commitments will be allocated and the amounts of such allocations; provided that any Lender approached to provide all or a portion of the New Term Loan Commitments and/or New Revolving Credit Commitments may elect or decline, in its sole discretion, to provide a New Term Loan Commitment and/or a New Revolving Credit Commitment. Such New Term Loan Commitments and/or New Revolving Credit Commitments shall become effective as of such Increased Amount Date; provided that, both before and after giving effect to such New Term Loan Commitments and/or New Revolving Credit Commitments (1) no Default shall exist on such Increased Amount Date before or after giving effect to such New Term Loan Commitments and/or New Revolving Credit Commitments, as applicable; (2) both before and after giving effect to the making of any New Term Loans and/or Revolving Loans, each of the conditions set forth in Section 5.2 shall be satisfied, unless waived by each New Term Loan Lender or New Revolving Credit Lender, as applicable; (3) the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.20 after giving effect to such New Term Loan Commitments and/or New Revolving Credit Commitments as of the last day of the most recently ended fiscal quarter for which a compliance certificate has been delivered pursuant to Section 7.1(v); (4) the New Term Loan Commitments and/or New Revolving Credit Commitments shall be effected pursuant to one or more Additional Credit Extension Amendments executed and delivered by the Borrower, the New Term Loan Lender and/or the

 

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New Revolving Credit Lender and the Administrative Agent, and each of which shall be recorded in the Register; and (5) the Borrower shall deliver to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that any increase to be effected under this Section 2.25 has been duly authorized by all appropriate action and legal opinions (including in- house opinions in lieu of opinions of outside counsel) if reasonably requested by the Administrative Agent, consistent with those delivered on the Closing Date.

On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Credit Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Credit Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to its New Revolving Credit Commitment and all matters relating thereto.

On any Increased Amount Date on which any New Term Loan Commitments are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Loan Lender shall make a Term Loan to the Borrower (a “New Term Loan”, and together with the related New Term Loan Commitments, a “New Term Loan Facility”) in an amount equal to its New Term Loan Commitment, and (ii) each New Term Loan Lender shall become a Term Loan Lender hereunder with respect to the New Term Loan Commitment and the New Term Loans made pursuant thereto.

The Administrative Agent shall notify applicable Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof the New Term Loan Commitments and the New Term Loan Lenders and/or the New Revolving Credit Commitments and the New Revolving Credit Lenders.

The terms of any New Term Loans (a) shall not provide for any amortization payments on or prior to the Revolving Credit Termination Date, but may permit voluntary prepayment, (b) shall provide that the applicable New Term Loan maturity date shall be no earlier than the Revolving Credit Termination Date, (c) shall provide that any guarantees provided in respect of the New Term Loans shall also guarantee the other Obligations and (d) shall include such other terms and pricing as may be agreed by the Borrower, the Administrative Agent and the New Term Loan Lenders. The terms and provisions of the New Revolving Credit Commitments shall be identical to the existing Revolving Credit Commitments. In any event, the upfront fees applicable to the New Term Loans and/or the New Revolving Credit Commitments shall be determined by the Borrower and the applicable New Term Loan Lenders and/or New Revolving Credit Lenders and shall be set forth in each applicable Additional Credit Extension Amendment. Each Additional Credit Extension Amendment may, without the consent of any other Lenders

 

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(unless the consent of such other Lenders is required by Section 9.2), effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.25, subject to approval by the Borrower and the New Revolving Lenders or New Term Loan Lenders, as applicable, including without limitation to (w) include the New Revolving Lenders and/or New Term Loan Lenders as “Lenders” hereunder, (x) include the New Revolving Commitments and/or New Term Loan Commitments as “Commitments” hereunder, (y) to include the New Revolving Loans and/or New Term Loans as “Loans” hereunder, and (z) to include the New Revolving Lenders, the New Revolving Commitments and the New Revolving Loans and/or the New Term Loan Lenders, the New Term Loan Commitments and the New Term Loans for purposes of the definition of “Required Lenders”; provided however, that any amendments to Articles V through VIII, inclusive, that adversely affect a Lender shall be subject to Section 9.2. All such amendments and joinder agreements entered into with the Borrower and the New Revolving Lenders or the New Term Loan Lenders, as applicable, by the Administrative Agent shall be binding and conclusive on all Lenders.

ARTICLE III

THE LETTER OF CREDIT SUBFACILITY

3.1. Obligations to Issue. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of the Borrower and the General Partner herein set forth, the Issuing Bank hereby agrees to issue for the account of Borrower, one or more Facility Letters of Credit in U.S. Dollars in accordance with this Article III, and to renew, extend, increase, decrease, or otherwise modify each Facility Letter of Credit (“Modify”, and each such action, a “Modification”) from time to time during the period commencing on the date hereof and ending on the Business Day prior to the Revolving Credit Termination Date. Any Revolving Credit Lender shall have the right to decline to be the Issuing Bank for a Facility Letter of Credit provided that if no other Revolving Credit Lender agrees to be the Issuing Bank then Administrative Agent shall agree to do so. Notwithstanding anything herein to the contrary, the Issuing Bank shall have no obligation hereunder to issue, and shall not issue, any Letter of Credit the proceeds of which would be made available to any Person (i) to fund any activity or business of or with any Sanctioned Person, or in any Sanctioned Country, and that would be prohibited by Sanctions or (ii) in any manner that would result in a violation of any Sanctions by any party to this Agreement.

3.2. Types and Amounts. The Issuing Bank shall not have any obligation to:

(i) issue or Modify any Facility Letter of Credit if the aggregate maximum amount then available for drawing under Letters of Credit issued by such Issuing Bank, after giving effect to the Facility Letter of Credit or Modification requested hereunder shall exceed any limit imposed by law or regulation upon such Issuing Bank;

(ii) issue or Modify any Facility Letter of Credit if, after giving effect thereto, (A) the Facility Letter of Credit Obligations would exceed $50,000,000 or the Allocated Facility Amount would exceed the Aggregate Revolving Credit Commitment or the Outstanding Revolving Credit Exposure of any Lender would exceed its Revolving Credit Commitment or (B) unless such Issuing Bank otherwise consents, the Facility Letter of Credit Exposure of any Issuing Bank would exceed its Letter of Credit Commitment;

 

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(iii) issue any Facility Letter of Credit having an expiration date after the Revolving Credit Termination Date; provided that (a) a Facility Letter of Credit may contain a provision providing for automatic extension of the expiration date in the absence of a non-renewal from the Administrative Agent, but in no event shall any such provision permit the extension of the expiration date of such Facility Letter of Credit beyond the Revolving Credit Termination Date except in accordance with clause (b) of this proviso, and (b) the Issuing Bank may issue a Facility Letter of Credit having an expiration date which is after the Revolving Credit Termination Date so long as such expiration date is not later than the first anniversary of the Revolving Credit Termination Date and the Borrower complies with Sections 3.13 and 3.14 hereof; or

(iv) issue any Facility Letter of Credit having an expiration date which is more than fifteen (15) months after the date of its issuance; provided that (a) a Facility Letter of Credit may contain a provision providing for automatic extension of the expiration date in the absence of a non-renewal from the Administrative Agent, but in no event shall any such provision permit the extension of the expiration date of such Facility Letter of Credit beyond the Revolving Credit Termination Date except in accordance with clause (b) of this proviso, and (b) the Issuing Bank may issue a Facility Letter of Credit having an expiration date which is after the Revolving Credit Termination Date so long as such expiration date is not later than the first anniversary of the Revolving Credit Termination Date and the Borrower complies with Sections 3.13 and 3.14 hereof.

3.3. Conditions. In addition to being subject to the satisfaction of the conditions contained in Section 5.2 hereof, the obligation of the Issuing Bank to issue any Facility Letter of Credit is subject to the satisfaction in full of the following conditions:

(i) the Borrower shall have delivered to the Issuing Bank at such times and in such manner as the Issuing Bank may reasonably prescribe a letter of credit application on the Issuing Bank’s standard form in connection with any request for a Facility Letter of Credit and such other documents and materials as may be reasonably required pursuant to the terms of the proposed Facility Letter of Credit (it being understood that if any inconsistency exists between any such letter of credit application or documents submitted by the Borrower, or entered into by the Borrower with the Issuing Bank, relating to any Facility Letter of Credit and this Agreement, the terms of this Agreement shall control) and the proposed Facility Letter of Credit shall be reasonably satisfactory to the Issuing Bank as to form and content;

 

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(ii) as of the date of issuance, no order, judgment or decree of any court, arbitrator or governmental authority shall purport by its terms to enjoin or restrain the Issuing Bank from issuing the requested Facility Letter of Credit and no law, rule or regulation applicable to the Issuing Bank and no request or directive (whether or not having the force of law) from any governmental authority with jurisdiction over the Issuing Bank shall prohibit or request that the Issuing Bank refrain from the issuance of Letters of Credit generally or the issuance of the requested Facility Letter or Credit in particular; and

(iii) there shall not exist any Default or Unmatured Default.

3.4. Procedure for Issuance of Facility Letters of Credit.

(a) Borrower shall give the Issuing Bank and the Administrative Agent at least five (5) Business Days’ prior written notice of any requested issuance of a Facility Letter of Credit under this Agreement (a “Letter of Credit Request”) (except that, in lieu of such written notice, the Borrower may give the Issuing Bank and the Administrative Agent telephonic notice of such request if confirmed in writing by delivery to the Issuing Bank and the Administrative Agent (i) immediately (A) of a telecopy of the written notice required hereunder which has been signed by an Authorized Officer, or (B) of a telex containing all information required to be contained in such written notice and (ii) promptly (but in no event later than the requested date of issuance) of the written notice required hereunder containing the original signature of an authorized officer); such notice shall specify:

(1) the stated amount of the Facility Letter of Credit requested (which stated amount shall not be less than $50,000);

(2) the effective date (which day shall be a Business Day) of issuance of such requested Facility Letter of Credit (the “Issuance Date”);

(3) the date on which such requested Facility Letter of Credit is to expire (which date shall be a Business Day and, except as otherwise permitted by Section 3.2(iii) or 3.2(iv), shall in no event be later than the earlier of fifteen months after the Issuance Date and the Revolving Credit Termination Date);

(4) the purpose for which such Facility Letter of Credit is to be issued;

(5) the Person for whose benefit the requested Facility Letter of Credit is to be issued; and

(6) the identity of the requested Issuing Bank.

At the time such request is made, the Borrower shall also provide the Administrative Agent and the Issuing Bank with a copy of the form of the Facility Letter of Credit that the Borrower is requesting be issued, which shall be subject to the approval of the Issuing Bank and Administrative Agent. Such notice, to be effective, must be received by such Issuing Bank and the Administrative Agent not later than 2:00 p.m. (Chicago time) on the last Business Day on which notice can be given under this Section 3.4(a). The Administrative Agent shall promptly give a copy of the Letter of Credit Request to the other Lenders.

 

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(b) Subject to the terms and conditions of this Article III and provided that the applicable conditions set forth in Section 4.2 hereof have been satisfied, such Issuing Bank shall, on the Issuance Date, issue a Facility Letter of Credit on behalf of the Borrower in accordance with the Letter of Credit Request and the Issuing Bank’s usual and customary business practices (including the execution of a letter of credit application on the Issuing Bank’s standard forms) unless the Issuing Bank has actually received (i) written notice from the Borrower specifically revoking the Letter of Credit Request with respect to such Facility Letter of Credit, (ii) written notice from a Revolving Credit Lender, which complies with the provisions of Section 3.11(a), or (iii) written or telephonic notice from the Administrative Agent stating that the issuance of such Facility Letter of Credit would violate Section 3.2.

(c) The Issuing Bank shall give the Administrative Agent and the Borrower written or telex notice, or telephonic notice confirmed promptly thereafter in writing, of the issuance of a Facility Letter of Credit (the “Issuance Notice”) and the Administrative Agent shall promptly give a copy of the Issuance Notice to the other Revolving Credit Lenders.

(d) The Issuing Bank shall not extend or modify any Facility Letter of Credit unless the requirements of this Section 3.4 are met as though a new Facility Letter of Credit was being requested and issued.

3.5. Administration; Reimbursement by Revolving Credit Lenders. Upon receipt from the beneficiary of any Facility Letter of Credit of any demand for payment under such Facility Letter of Credit, the Issuing Bank shall notify the Administrative Agent and the Administrative Agent shall promptly notify the Borrower and each Revolving Credit Lender as to the amount to be paid by the Issuing Bank as a result of such demand and the proposed payment date (the “LC Payment Date”). The responsibility of the Issuing Bank to the Borrower and each Revolving Credit Lender shall be only to determine that the documents (including each demand for payment) delivered under each Facility Letter of Credit in connection with such presentment shall be in conformity in all material respects with such Facility Letter of Credit. The Issuing Bank shall endeavor to exercise the same care in the issuance and administration of the Facility Letters of Credit as it does with respect to letters of credit in which no participations are granted, it being understood that in the absence of any gross negligence or willful misconduct by the Issuing Bank (as determined by a court of competent jurisdiction in a final and non-appealable decision), each Revolving Credit Lender shall be unconditionally and irrevocably liable without regard to the occurrence of any Default or any condition precedent whatsoever, to reimburse the Issuing Bank on demand for (i) such Revolving Credit Lender’s Revolving Credit Percentage of the amount of each payment made by the Issuing Bank under each Facility Letter of Credit to the extent such amount is not reimbursed by the Borrower pursuant to Section 3.6 below, plus (ii) interest on the foregoing amount to be reimbursed by such Revolving Credit Lender, for each day from the date of the Issuing Bank’s demand for such reimbursement (or, if such demand is made after 11:00 a.m. (Chicago time) on such date, from the next succeeding Business Day) to the date on which such Revolving Credit Lender pays the amount to be reimbursed by it, at a rate of interest per annum equal to the Federal Funds Effective Rate for the first three (3) days and, thereafter, at a rate of interest equal to the rate applicable to ABR Advances.

 

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3.6. Reimbursement by Borrower. The Borrower shall be irrevocably and unconditionally obligated to reimburse the Issuing Bank on or before the applicable LC Payment Date for any amounts to be paid by the Issuing Bank upon any drawing under any Facility Letter of Credit, without presentment, demand, protest or other formalities of any kind; provided that neither the Borrower nor any Revolving Credit Lender shall hereby be precluded from asserting any claim for direct (but not consequential) damages suffered by the Borrower or such Revolving Credit Lender to the extent, but only to the extent, caused by the willful misconduct or gross negligence of the Issuing Bank (as determined by a court of competent jurisdiction in a final and non-appealable decision) in determining whether a request presented under any Facility Letter of Credit issued by it complied with the terms of such Facility Letter of Credit. All such amounts paid by the Issuing Bank and remaining unpaid by the Borrower shall bear interest, payable on demand, for each day until paid at a rate per annum equal to (x) the rate applicable to ABR Advances for such day if such day falls on or before the applicable LC Payment Date and (y) the sum of 2% plus the rate applicable to ABR Advances for such day if such day falls after such LC Payment Date. The Issuing Bank will pay to each Revolving Credit Lender ratably in accordance with its Revolving Credit Percentage all amounts received by it from the Borrower for application in payment, in whole or in part, of the Reimbursement Obligation in respect of any Facility Letter of Credit issued by the Issuing Bank, but only to the extent such Revolving Credit Lender has made payment to the Issuing Bank in respect of such Facility Letter of Credit pursuant to Section 3.5. Subject to the terms and conditions of this Agreement (including without limitation the submission of a Borrowing Notice in compliance with Section 2.10 and the satisfaction of the applicable conditions precedent set forth in Article V), the Borrower may request an Advance of Revolving Loans hereunder for the purpose of satisfying any Reimbursement Obligation.

3.7. Obligations Absolute. The Borrower’s obligations under Section 3.6 shall be absolute, unconditional and irrevocable under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment which the Borrower may have or have had against the Issuing Bank, any Revolving Credit Lender or any beneficiary of a Facility Letter of Credit. The Borrower further agrees with the Issuing Bank and the Revolving Credit Lenders that the Issuing Bank and the Revolving Credit Lenders shall not be responsible for, and the Borrower’s Reimbursement Obligation in respect of any Facility Letter of Credit shall not be affected by, among other things, the validity or genuineness of documents or of any endorsements thereon, even if such documents should in fact prove to be in any or all respects invalid, fraudulent or forged, or any dispute between or among the Borrower, any of its Affiliates, the beneficiary of any Facility Letter of Credit or any financing institution or other party to whom any Facility Letter of Credit may be transferred, or payment by the Issuing Bank under a Facility Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, or any claims or defenses whatsoever of the Borrower or of any of its Affiliates against the beneficiary of any Facility Letter of Credit or any such transferee. The Issuing Bank shall not be liable for any error, omission, interruption or delay in transmission, dispatch or delivery of any message or advice, however transmitted, in connection with any Facility Letter of Credit. The foregoing shall not be construed to excuse the Issuing Bank from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the Issuing Bank’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the part of the Issuing

 

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Bank (as finally determined by a court of competent jurisdiction), the Issuing Bank shall be deemed to have exercised care in each such determination. The Borrower agrees that any action taken or omitted by the Issuing Bank or any Revolving Credit Lender under or in connection with each Facility Letter of Credit and the related drafts and documents, if done without gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision), shall be binding upon the Borrower and shall not put the Issuing Bank or any Revolving Credit Lender under any liability to the Borrower. Nothing in this Section 3.7 is intended to limit the right of the Borrower to make a claim against the Issuing Bank for damages as contemplated by the proviso to the first sentence of Section 3.6.

3.8. Actions of Issuing Bank. The Issuing Bank shall be entitled to rely, and shall be fully protected in relying, upon any Facility Letter of Credit, draft, writing, resolution, notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype message, statement, order or other document believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel, independent accountants and other experts selected by the Issuing Bank. The Issuing Bank shall be fully justified in failing or refusing to take any action under this Agreement unless it shall first have received such advice or concurrence of the applicable Required Lenders as it reasonably deems appropriate or it shall first be indemnified to its reasonable satisfaction by the Revolving Credit Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Notwithstanding any other provision of this Section 3.8, the Issuing Bank shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement in accordance with a request of the applicable Required Lenders, and such request and any action taken or failure to act pursuant thereto shall be binding upon the Revolving Credit Lenders and any future holders of a participation in any Facility Letter of Credit.

3.9. Indemnification. The Borrower hereby agrees to indemnify and hold harmless each Revolving Credit Lender, the Issuing Bank and the Administrative Agent, and their respective directors, officers, agents, attorneys, professional advisors and employees from and against any and all claims and damages, losses, liabilities, costs or expenses (including reasonable counsel fees and disbursements) which such Revolving Credit Lender, the Issuing Bank, the Administrative Agent or their respective directors, officers, agents, attorneys, professional advisors and employees, may incur (or which may be claimed against such Revolving Credit Lender, the Issuing Bank or the Administrative Agent by any Person whatsoever) by reason of or in connection with the issuance, execution and delivery or transfer of or payment or failure to pay under any Facility Letter of Credit or any actual or proposed use of any Facility Letter of Credit, including, without limitation, any claims, damages, losses, liabilities, costs or expenses which the Issuing Bank may incur by reason of or in connection with (i) the failure of any other Revolving Credit Lender to fulfill or comply with its obligations to the Issuing Bank hereunder (but nothing herein contained shall affect any rights the Borrower may have against any Defaulting Lender) or (ii) by reason of or on account of the Issuing Bank issuing any Facility Letter of Credit which specifies that the term “Beneficiary” included therein includes any successor by operation of law of the named Beneficiary, but which Facility Letter of Credit does not require that any drawing by any such successor Beneficiary be accompanied by a copy of a legal document, satisfactory to the Issuing Bank, evidencing the appointment of such successor Beneficiary; provided that the Borrower shall not be required to indemnify any

 

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Revolving Credit Lender, the Issuing Bank or the Administrative Agent or their respective directors, officers, agents, attorneys, professional advisors and employees for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent, caused by the willful misconduct or gross negligence of the Issuing Bank (as determined by a court of competent jurisdiction in a final and non-appealable decision) in determining whether a request presented under any Facility Letter of Credit complied with the terms of such Facility Letter of Credit. Nothing in this Section 3.9 is intended to limit the obligations of the Borrower under any other provision of this Agreement.

3.10. Lenders’ Indemnification. Each Revolving Credit Lender shall, ratably in accordance with its Revolving Credit Percentage, indemnify the Issuing Bank, its affiliates and their respective directors, officers, agents, attorneys, professional advisors and employees (to the extent not reimbursed by the Borrower) against any cost, expense (including reasonable counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from such indemnitees’ gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision)) that such indemnitees may suffer or incur in connection with this Article III or any action taken or omitted by such indemnitees hereunder.

3.11. Participation.

(a) Immediately upon issuance by the Issuing Bank of any Facility Letter of Credit or Modification in accordance with the procedures set forth in Section 3.4, each Revolving Credit Lender shall be deemed to have irrevocably and unconditionally purchased and received from the Issuing Bank, without recourse, representation or warranty, an undivided interest and participation equal to such Revolving Credit Lender’s Revolving Credit Percentage in such Facility Letter of Credit (including, without limitation, all obligations of the Borrower with respect thereto) and any security therefor or guaranty pertaining thereto; provided that a Letter of Credit issued by the Issuing Bank shall not be deemed to be a Facility Letter of Credit for purposes of this Section 3.11 if the Issuing Bank shall have received written notice from any Revolving Credit Lender on or before the Business Day prior to the date of its issuance of such Letter of Credit that one or more of the conditions contained in Section 5.2 is not then satisfied, and in the event the Issuing Bank receives such a notice it shall have no further obligation to issue any Facility Letter of Credit until such notice is withdrawn by that Revolving Credit Lender or the Issuing Bank receives a notice from the Administrative Agent that such condition has been effectively waived in accordance with the provisions of this Agreement. Each Revolving Credit Lender’s obligation to make further Revolving Credit to the Borrower (other than any payments such Revolving Credit Lender is required to make under subparagraph (b) below) or issue any letters of credit on behalf of Borrower shall be reduced by such Revolving Credit Lender’s pro rata share of each Facility Letter of Credit outstanding.

(b) Whenever the Issuing Bank receives a payment on account of a Reimbursement Obligation, including any interest thereon, the Issuing Bank shall promptly pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Revolving Credit Lender which has funded its participating interest therein, in immediately available funds, an amount equal to such Revolving Credit Lender’s Revolving Credit Percentage thereof.

 

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(c) Upon the request of the Administrative Agent or any Revolving Credit Lender, an Issuing Bank shall furnish to such Administrative Agent or Revolving Credit Lender copies of any Facility Letter of Credit to which that Issuing Bank is party and such other documentation as may reasonably be requested by the Administrative Agent or Revolving Credit Lender.

(d) The obligations of a Revolving Credit Lender to make payments to the Administrative Agent for the account of each Issuing Bank with respect to a Facility Letter of Credit shall be absolute, unconditional and irrevocable, not subject to any counterclaim, setoff, qualification or exception whatsoever other than a failure of any such Issuing Bank to comply with the terms of this Agreement relating to the issuance of such Facility Letter of Credit and shall be made in accordance with the terms and conditions of this Agreement under all circumstances.

3.12. Compensation for Facility Letters of Credit.

(a) The Borrower shall pay to the Administrative Agent, for the ratable account of the Revolving Credit Lenders, based upon the Revolving Credit Lenders’ respective Revolving Credit Percentages, a per annum fee (the “Facility Letter of Credit Fee”) with respect to each Facility Letter of Credit that is equal to the LIBOR<Term Benchmark> Applicable Margin in effect from time to time. The Facility Letter of Credit Fee relating to any Facility Letter of Credit shall be due and payable quarterly in arrears on the last day of each calendar quarter and, to the extent any such fees are then due and unpaid, on the Revolving Credit Termination Date. The Administrative Agent shall promptly remit such Facility Letter of Credit Fees, when paid, to the Revolving Credit Lenders in accordance with their Revolving Credit Percentages thereof.

(b) The Issuing Bank also shall have the right to receive solely for its own account an issuance fee of 0.125% of the face amount of each Facility Letter of Credit, payable by the Borrower on the Issuance Date for each such Facility Letter of Credit. The Issuing Bank shall also be entitled to receive its reasonable out-of-pocket costs and the Issuing Bank’s standard charges of issuing, amending and servicing Facility Letters of Credit and processing draws thereunder.

3.13. Expiration after the Termination Date. Notwithstanding anything contained herein to the contrary, if any Facility Letters of Credit, by their terms, shall mature after the Revolving Credit Termination Date, then, on and after the Revolving Credit Termination Date, the provisions of this Agreement shall remain in full force and effect with respect to such Facility Letters of Credit, and the Borrower shall comply with the provisions of Section 3.14.

3.14. Letter of Credit Collateral Account.

(a) If, at any time and from time to time, any Facility Letter of Credit shall have been issued, renewed or extended hereunder so that such Facility Letter of Credit shall expire on a date after the Revolving Credit Termination Date, then, on the date that such Facility Letter of Credit is so issued, renewed or extended, the Borrower shall pay to the Administrative Agent, on behalf of the Revolving Credit Lenders, in same day funds at the Administrative Agent’s office specified in Article XIV, for deposit in a special cash collateral account (the “Letter of Credit Collateral Account”) to be maintained in the name of the Administrative Agent (on behalf of the Revolving Credit Lenders) and under its sole dominion and control at such place as shall be designated by the Administrative Agent, an amount equal to 100% of the amount of the Letter of Credit Obligations under such Facility Letter of Credit. Such Letter of Credit Account shall also be funded to the extent required by Section 9.1. Interest shall accrue on the Letter of Credit Collateral Account at a rate equal to the rate on overnight funds.

 

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(b) The Borrower hereby pledges, assigns and grants to the Administrative Agent, as Administrative Agent for its benefit and the ratable benefit of the Revolving Credit Lenders a lien on and a security interest in, the following collateral (the “Letter of Credit Collateral”):

(i) the Letter of Credit Collateral Account, all cash deposited therein and all certificates and instruments, if any, from time to time representing or evidencing the Letter of Credit Collateral Account;

(ii) all notes, certificates of deposit and other instruments from time to time hereafter delivered to or otherwise possessed by the Administrative Agent for or on behalf of the Borrower in substitution for or in respect of any or all of the then existing Letter of Credit Collateral;

(iii) all interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the then existing Letter of Credit Collateral; and

(iv) to the extent not covered by the above clauses, all proceeds of any or all of the foregoing Letter of Credit Collateral.

(c) The lien and security interest granted hereby secures the payment of all obligations of the Borrower now or hereafter existing hereunder and under any other Loan Document.

(d) The Borrower hereby authorizes the Administrative Agent for the ratable benefit of the Revolving Credit Lenders to apply, from time to time after funds are deposited in the Letter of Credit Collateral Account and for so long as a Default has occurred and is continuing, funds then held in the Letter of Credit Collateral Account to the payment of any amounts, in such order as the Administrative Agent may elect, as shall have become due and payable by the Borrower to the Revolving Credit Lenders in respect of the Facility Letters of Credit.

(e) Neither the Borrower nor any Person claiming or acting on behalf of or through the Borrower shall have any right to withdraw any of the funds held in the Letter of Credit Collateral Account. Notwithstanding the foregoing, the Borrower may from time to time at the end of any fiscal quarter request that the Administrative Agent return to the Borrower any funds on deposit in the Letter of Credit Collateral Account in excess of the amounts required to be on deposit therein pursuant to Section 3.14(a), and, so long as no Default or Unmatured Default has occurred and is continuing, the Administrative Agent shall comply with such request.

(f) The Borrower agrees that it will not (i) sell or otherwise dispose of any interest in the Letter of Credit Collateral or (ii) create or permit to exist any lien, security interest or other charge or encumbrance upon or with respect to any of the Letter of Credit Collateral, except for the security interest created by this Section 3.14.

 

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(g) If any Default shall have occurred and be continuing:

(i) The Administrative Agent may, in its sole discretion, without notice to the Borrower except as required by law and at any time from time to time, charge, set off or otherwise apply all or any part of first, (x) amounts previously drawn on any Facility Letter of Credit that have not been reimbursed by the Borrower and (y) any Facility Letter of Credit Obligations described in clause (b) of the definition thereof that are then due and payable and second, any other unpaid Obligations then due and payable against the Letter of Credit Collateral Account or any part thereof, in such order as the Administrative Agent shall elect. The rights of the Administrative Agent under this Section 3.14 are in addition to any rights and remedies which any Lender may have.

(ii) The Administrative Agent may also exercise, in its sole discretion, in respect of the Letter of Credit Collateral Account, in addition to the other rights and remedies provided herein or otherwise available to it, all the rights and remedies of a secured party upon default under the Uniform Commercial Code in effect in the State of New York at that time.

(iii) The Administrative Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Letter of Credit Collateral if the Letter of Credit Collateral is accorded treatment substantially equal to that which the Administrative Agent accords its own property, it being understood that, assuming such treatment, the Administrative Agent shall not have any responsibility or liability with respect thereto.

(iv) At such time as all Defaults have been cured or waived in writing, all fees and expenses, if any, owing to the Revolving Credit Lenders paid in full, and all Facility Letters of Credit returned to the Issuing Bank and cancelled, all amounts remaining in the Letter of Credit Collateral Account shall be promptly returned to the Borrower. Absent such cure or written waiver, any surplus of the funds held in the Letter of Credit Collateral Account and remaining after return of all Facility Letters of Credit to the Issuing Bank and payment in full of all of the Obligations of the Borrower hereunder and under any other Loan Document after the Revolving Credit Termination Date shall be paid promptly to the Borrower or to whomsoever may be lawfully entitled to receive such surplus.

The terms of this Section 3.14 shall only apply in the event that (a) a Facility Letter of Credit will expire by its terms after the Revolving Credit Termination Date or (b) the Borrower must otherwise cash-collateralize Facility Letters of Credit pursuant to Section 2.24(c) or Section 9.1.

3.15. Existing Letters of Credit. It is hereby acknowledged and agreed by the Borrower, the Administrative Agent and all the Revolving Credit Lenders party hereto that on the Closing Date, the letters of credit previously issued by JPMCB and any other Revolving Credit Lender acting as “Issuing Bank” under the Existing Credit Agreement, and more particularly set forth on Schedule 3.15 hereto, shall be transferred to this Agreement and shall be deemed to be Facility Letters of Credit hereunder.

 

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ARTICLE IV

CHANGE IN CIRCUMSTANCES

4.1. Yield Protection.

If any Change in Law:

(a) imposes on any Lender or the Issuing Bank or the London<applicable offshore> interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation therein, or

(b) imposes or increases or deems applicable any reserve, assessment, insurance charge, special deposit, compulsory loan, liquidity or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender or any applicable Lending Installation or the Issuing Bank (other than reserves and assessments taken into account in determining the interest rate applicable to LIBOR<Term Benchmark> Advances), or

(c) subjects any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, or

(d) imposes any other condition the result of which is to increase the cost to any Lender or any applicable Lending Installation or the Issuing Bank of making, continuing, converting to, funding or maintaining its LIBOR<Term Benchmark> Loans, or of issuing or participating in Facility Letters of Credit, or reduces any amount receivable by any Lender or any applicable Lending Installation or the Issuing Bank in connection with its LIBOR<Term Benchmark> Loans, Facility Letters of Credit or participations therein, or requires any Lender or any applicable Lending Installation or the Issuing Bank to make any payment calculated by reference to the amount of LIBOR<Term Benchmark> Loans, Facility Letters of Credit or participations therein held or interest or LC Fees received by it, by an amount deemed material by such Lender or the Issuing Bank as the case may be,

and the result of any of the foregoing would be to increase the cost to such Lender or applicable Lending Installation or the Issuing Bank, as the case may be, of making or maintaining its LIBOR<Term Benchmark> Loans or Commitments or of issuing or participating in Facility Letters of Credit or to reduce the return received by such Lender or applicable Lending Installation or the Issuing Bank, as the case may be, in connection with such LIBOR<Term Benchmark> Loans, Commitments, Facility Letters of Credit or participations therein, then, within fifteen (15) days after demand by such Lender or the Issuing Bank, as the case may be, the Borrower shall pay such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Bank, as the case may be, for such increased cost or reduction in amount received.

 

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Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section for any increased costs or reductions incurred more than 180 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.

4.2. Changes in Capital Adequacy Regulations.

If a Lender or the Issuing Bank in good faith determines the amount of capital or liquidity required or expected to be maintained by such Lender or the Issuing Bank, any Lending Installation of such Lender or the Issuing Bank or any corporation controlling such Lender or the Issuing Bank is increased as a result of a Change in Law regarding capital or liquidity adequacy, then, within fifteen (15) days after demand by such Lender or the Issuing Bank, the Borrower shall pay such Lender or the Issuing Bank the amount necessary to compensate for any reduction in the rate of return on the portion of such increased capital or liquidity which such Lender or the Issuing Bank in good faith determines is attributable to this Agreement, its Outstanding Credit Exposure or its obligation to make Loans and issue or participate in Facility Letters of Credit, as the case may be, hereunder (after taking into account such Lender’s or the Issuing Bank’s policies as to capital adequacy).

Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section for any increased costs or reductions incurred more than 180 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.

4.3. Availability of Types of Advances<Alternate Rate of Interest>.

(a) Subject to clauses (b), (c), (d), (e),< and > (f) and (g) of this Section 4.3, if prior to the commencement of any Interest Period for a LIBOR Advance:

(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error)< prior to the commencement of any Term Benchmark Interest Period for a Term Benchmark Advance,> that adequate and reasonable means do not exist for ascertaining the LIBOR<Adjusted Term SOFR> Rate or the LIBOR Base<Term SOFR> Rate (including, without limitation, because the LIBO Screen<Term SOFR Reference> Rate is not available or published on a current basis)<,> for such <Term Benchmark >Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or

 

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(ii) the Administrative Agent is advised by the Required Lenders (or, in<that prior to> the case<commencement> of a LIBOR Competitive Bid Loan, the Revolving Credit Lender that is required to make such Revolving Loan) that the LIBOR Rate or LIBOR Base<any Term Benchmark Interest Period for a Term Benchmark Advance, the Adjusted Term SOFR> Rate for such< Term Benchmark> Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loans<Loan>) included in such Advance for such <Term Benchmark >Interest Period;

then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone or<,> telecopy <or electronic mail >as promptly as practicable thereafter and, until <(x) >the Administrative Agent notifies the Borrower and the applicable Lenders that the circumstances giving rise to such notice no longer exist,< with respect to the relevant Benchmark and> (i<y>)< the Borrower delivers a new Conversion/Continuation Notice in accordance with the terms of Section 2.11 or a new Borrowing Notice in accordance with the terms of Section 2.10,> any Conversion/Continuation Notice that requests the conversion of any Advance to, or continuation of any Advance as, a LIBOR<Term Benchmark> Advance shall be ineffective, (ii) if<and> any Borrowing Notice <that >requests a LIBOR Advance, such<Term Benchmark> Advance shall be made as an Alternate Base Rate Advance and (iii) any request by the Borrower for a LIBOR Competitive Bid Loan shall be ineffective<instead be deemed to be an Conversion/Continuation Notice or a Borrowing Notice, as applicable, for an ABR Advance>; provided that (A) if the circumstances giving rise to such notice do not affect all the Revolving Credit Lenders, then requests by the Borrower for Competitive Bid Loans may be made to Revolving Credit Lenders that are not affected thereby and (B) if the circumstances giving rise to such notice affect only one Type or Class of Advance, then the other Types or Classes of Advance<Advances > shall be permitted.< Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 4.3(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Conversion/Continuation Notice in accordance with the terms of Section 2.11 or a new Borrowing Notice in accordance with the terms of Section 2.10, any Term Benchmark Loan shall on the last day of the Term Benchmark Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute an ABR Loan on such day unless the Borrower shall repay such Term Benchmark Loan on such date.>

(b) Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) or (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (3) of the definition of “Benchmark Replacement” for

 

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such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.

(c) Notwithstanding anything to the contrary herein or in any other Loan Document and subject to the proviso below in this paragraph, if a Term SOFR Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then the applicable Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder or under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document; provided that, this clause (c) shall not be effective unless the Administrative Agent has delivered to the Lenders and the Borrower a Term SOFR Notice. For the avoidance of doubt, the Administrative Agent shall not be required to deliver a Term SOFR Notice after a Term SOFR Transition Event and may do so in its sole discretion.

(c) (d) In connection with the implementation of a Benchmark Replacement<Notwithstanding anything to the contrary herein or in any other Loan Document>, the Administrative Agent will have the right< (in consultation with the Borrower)> to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.

(d) (e) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (d<f >) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 4.3, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 4.3.

(e) (f) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including <the >Term SOFR or LIBOR Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative

 

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Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “<Term Benchmark >Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “<Term Benchmark >Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.

(f) (g) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) the Borrower may revoke any request for a LIBOR<Term Benchmark> Advance of, conversion to or continuation of LIBOR Advances<Term Benchmark Loans> to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request< for a Term Benchmark Advance> into a request for a borrowing of or conversion to Alternate Base Rate<an ABR> Advance and (ii) any request by the Borrower for a LIBOR Competitive Bid Loan shall be ineffective. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of Alternate Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of Alternate Base Rate.< Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a Relevant Rate applicable to such Term Benchmark Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 4.3, any Term Benchmark Loan shall on the last day of the Term Benchmark Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute an ABR Loan on such date>< unless it is repaid by the Borrower on such date. >

4.4. Funding Indemnification.

If any payment of a ratable LIBOR<Term Benchmark> Advance or a Competitive Bid Loan is made by the Borrower on a date which is not the last day of the applicable Interest Period, or otherwise occurs because of acceleration or prepayment, or a ratable LIBOR<Term Benchmark> Advance or a Competitive Bid Loan is not made, continued, converted or prepaid on the date specified by the Borrower for any reason other than default by the Lenders or as a result of unavailability pursuant to Section 4.3, or the assignment of a LIBOR<Term Benchmark> Advance or Competitive Bid Loan pursuant to Section 4.7 or the conversion of a LIBOR<Term Benchmark> Advance shall occur on a day other than the last day of an Interest Period therefor, the Borrower will indemnify each applicable Lender for any loss or cost incurred by it resulting therefrom, including, without limitation, any loss or cost in liquidating or employing deposits acquired to fund or maintain the ratable LIBOR<Term Benchmark> Advance or Competitive Bid Loan, as the case may be, and shall pay all such losses or costs within fifteen (15) days after written demand therefor. Nothing in this Section 4.4 shall authorize the prepayment of a Competitive Bid Loan prior to the end of the applicable Interest Period.

 

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4.5. Payment Free of Taxes. (a) Any and all payments by or on account of any obligation of the Borrower 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 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 4.5) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.

(b) Payment of Other Taxes by the Borrower. The Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for, Other Taxes.

(c) Evidence of Payments. As soon as practicable after any payment of Taxes by the Borrower to a Governmental Authority pursuant to this Section 4.5, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(d) Indemnification by the Borrower. The Borrower shall indemnify each Recipient, within ten (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 ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 13.3 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

 

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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 paragraph (e).

(f) Status of Lenders. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Sections 4.5(f)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

(ii) Without limiting the generality of the foregoing,

(A) any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), an executed IRS Form W-9 certifying that such Lender is exempt from U.S. Federal backup withholding tax;

(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the 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:

(1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, an executed IRS Form W-8BEN or W-8BEN-E 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 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;

 

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(2) an executed IRS Form W-8ECI;

(3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit L-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) an executed IRS Form W- 8BEN or W-8BEN-E; or

(4) to the extent a Foreign Lender is not the beneficial owner, an executed IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-2 or Exhibit L-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-4 on behalf of each such direct and indirect partner;

(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals 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 Lender under any Loan Document would be subject to U.S. Federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount 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.

 

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Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.

(g) Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 4.5 (including by the payment of additional amounts pursuant to this Section 4.5), 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 4.5 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

(h) Survival. Each party’s obligations under this Section 4.5 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.

(i) Defined Terms. For purposes of this Section 4.5, the term “applicable law” includes FATCA and the term “Lender” includes any Issuing Bank.

4.6. Lender Statements; Survival of Indemnity.

Each Lender shall use its reasonable efforts to designate an alternate Lending Installation with respect to its LIBOR<Term Benchmark> Loans to reduce any liability of the Borrower to such Lender under Sections 4.1, 4.2 and 4.5 or to avoid the unavailability of Advances under Section 4.3, so long as such designation does not reduce such Lender’s income or increase such Lender’s liabilities and is made on terms that, in the sole judgment of such Lender, do not cause such Lender to suffer any economic, legal or regulatory disadvantage. Each Lender shall deliver a written statement of such Lender to the Borrower (with a copy to the Administrative Agent) as to the amount due, if any, under Section 4.1, 4.2, 4.4 or 4.5. Such written statement shall set

 

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forth in reasonable detail the calculations upon which such Lender determined such amount and shall be final, conclusive and binding on the Borrower in the absence of manifest error. Determination of amounts payable under such Sections in connection with a LIBOR Loan shall be calculated as though each Lender funded its LIBOR Loan through the purchase of a deposit of the type and maturity corresponding to the deposit used as a reference in determining the LIBOR Rate applicable to such Loan, whether in fact that is the case or not. Unless otherwise provided herein, the amount specified in the written statement of any Lender shall be payable on demand after receipt by the Borrower of such written statement. The obligations of the Borrower under Sections 4.1, 4.2, 4.4 and 4.5 shall survive payment of the Obligations and termination of this Agreement.

4.7. Replacement of Lenders under Certain Circumstances.

The Borrower shall be permitted to replace any Lender which (a) is subject to claims for additional payments under Section 4.1 or Section 4.2, (b) requires the Borrower to pay any Indemnified Taxes or additional amounts for the account of such Lender pursuant to Section 4.5, (c) cannot maintain its LIBOR<Term Benchmark> Loans at a suitable Lending Installation pursuant to Section 4.6, (d) becomes a Defaulting Lender or (e) has failed to consent to a proposed amendment, waiver or modification that under Section 9.2 requires the consent of all the Lenders (or all the affected Lenders) and with respect to which the Required Lenders or the Required Facility Lenders, as applicable, shall have granted their consent, with a replacement bank or other financial institution; provided that (i) such replacement eliminates the circumstances giving rise to such replacement right and does not conflict with any applicable legal or regulatory requirements affecting the remaining Lenders, (ii) no Default or (after notice thereof to Borrower) no Unmatured Default shall have occurred and be continuing at the time of such replacement, (iii) the replacement bank or institution shall purchase, at par, all Loans and other amounts owing to such replaced Lender prior to the date of replacement, (iv) the Borrower shall be liable to such replaced Lender under Sections 4.4 and 4.6 if any LIBOR<Term Benchmark> Loan owing to such replaced Lender shall be prepaid (or purchased) other than on the last day of the Interest Period relating thereto, (v) the replacement bank or institution, if not already a Lender, and the terms and conditions of such replacement, shall be reasonably satisfactory to the Administrative Agent, (vi) the replaced Lender shall be obligated to make such replacement in accordance with the provisions of Section 13.2 (provided that the Borrower shall be obligated to pay the processing fee referred to therein), (vii) until such time as such replacement shall be consummated, the Borrower shall continue to pay all amounts payable hereunder without setoff, deduction, counterclaim or withholding and (viii) any such replacement shall not be deemed to be a waiver of any rights which the Borrower, the Administrative Agent or any other Lender shall have against the replaced Lender.

ARTICLE V

CONDITIONS PRECEDENT

5.1. Effective Date. This Agreement shall not become effective, and the Lenders shall not be required to make the initial Credit Extensions hereunder unless (a) the Borrower shall have paid all fees due and payable to the Lenders and the Administrative Agent hereunder, and (b) the Borrower shall have complied with the requirements below and furnished to the Administrative Agent, in form and substance satisfactory to the Lenders and their counsel and with sufficient copies for the Lenders, the following:

 

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(i) The duly executed originals of the Loan Documents, including the Revolving Credit Notes payable to the order of each of the Revolving Credit Lenders, the Guaranty, the Subsidiary Guaranties from each Subsidiary Guarantor on the Closing Date, and this Agreement;

(ii) Certified copies of (a) the articles of incorporation of the General Partner and the certificate of limited partnership of the Borrower, both with all amendments and certified by the appropriate governmental officer of the State of Indiana as of a recent date, and (b) the articles of incorporation, articles of formation or certificate of limited partnership of each of the Subsidiary Guarantors on the Closing Date, each certified by the appropriate governmental officer of the state of formation, other than Duke Realty Ohio, which is a general partnership;

(iii) Certificates of good standing or the equivalent for the General Partner and the Borrower, certified by the appropriate governmental officer of the State of Indiana, and certificates of good standing or the equivalent for each Subsidiary Guarantor on the Closing Date, certified by the appropriate governmental officer of the state of formation, other than Duke Realty Ohio, which is a general partnership;

(iv) Copies, certified by an officer of the General Partner, of (1) its formation documents (including by-laws), together with all amendments thereto, (2) the formation documents (including the Partnership Agreement) of the Borrower, together with all amendments thereto and (3) the formation documents of each of the Subsidiary Guarantors on the Closing Date;

(v) An incumbency certificate, executed by an officer of the General Partner, which shall identify by name and title and bear the signature of the Persons authorized to sign the Loan Documents on behalf of the General Partner, the Borrower and each Subsidiary Guarantor and to make borrowings hereunder on behalf of the Borrower, upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower;

(vi) Copies, certified by the Secretary or Assistant Secretary, of the General Partner’s Board of Directors’ resolutions (and resolutions of other bodies, if any are deemed necessary by counsel for any Lender) authorizing the Advances provided for herein and the execution, delivery and performance of the Loan Documents to be executed and delivered by the General Partner, the Borrower and the Subsidiary Guarantors hereunder;

(vii) A written opinion of counsel to the General Partner, the Borrower and the Subsidiary Guarantors, addressed to the Lenders in form and substance reasonably acceptable to the Administrative Agent;

 

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(viii) A certificate, signed by an officer of the General Partner on behalf of the Borrower and for itself, stating that on the Effective Date, both before and after giving effect to the making of any Loans or other Credit Extensions, no Default or Unmatured Default has occurred and is continuing and that all representations and warranties of the General Partner and the Borrower are true and correct in all material respects (except to the extent any such representation and warranty itself is qualified by “materiality”, “Material Adverse Effect” or similar qualifier, in which case, it shall be true and correct in all respects), upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower;

(ix) The most recent financial statements of the General Partner and the Borrower and a certificate from an officer of the General Partner that no material adverse change in the General Partner’s or the Borrower’s financial condition has occurred since December 31, 2020;

(x) [reserved];

(xi) A compliance certificate in the form of Exhibit F hereto demonstrating the Borrower’s compliance with the covenants set forth in Article VII herein on a pro-forma basis, after giving effect to the Loans;

(xii) Written money transfer instructions, in substantially the form of Exhibit E hereto, addressed to the Administrative Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Administrative Agent may have reasonably requested;

(xiii) Evidence that all parties whose consent is required for the Borrower, the General Partner or the Subsidiary Guarantors to execute the Loan Documents have provided such consents;

(xiv) (A) at least five (5) days prior to the Effective Date, all documentation and other information regarding the Borrower requested in connection with applicable “know-your-customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent requested in writing of the Borrower at least ten (10) days prior to the Effective Date and (B) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five (5) days prior to the Effective Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause B) shall be deemed to be satisfied).

(xv) Such other documents as any Lender or its counsel may have reasonably requested, the form and substance of which documents shall be acceptable to the parties and their respective counsel.

Until such time as the foregoing conditions are satisfied, the Existing Credit Agreements shall remain in effect. From and after the satisfaction of such conditions, this Agreement shall be in effect, the Existing Credit Agreements shall be of no further force or effect, and each of the new Lenders that are parties to this Agreement shall be added as Lenders and the Commitments of all Lenders shall be as set forth on Schedule L hereto.

 

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5.2. Each Credit Extension. The Lenders shall not be required to make any Credit Extension other than an Advance to fund an Excluded Advance and other than an extension, renewal or amendment of a Facility Letter of Credit that does not increase the face amount thereof, unless on the applicable Borrowing Date (or date of such Credit Extension):

(i) There exists no Default or Unmatured Default; and

(ii) The representations and warranties contained in Article VI (other than the representations in the last sentence of Section 6.4 and in Section 6.11) are true and correct in all material respects (except to the extent any such representation and warranty itself is qualified by “materiality”, “Material Adverse Effect” or similar qualifier, in which case, it shall be true and correct in all respects) as of such Borrowing Date (or date of such Credit Extension) with respect to the General Partner, the Borrower and to any Subsidiary in existence (as applicable) on such Borrowing Date (or date of such Credit Extension), except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall be true and correct in all material respects (except to the extent any such representation and warranty itself is qualified by “materiality”, “Material Adverse Effect” or similar qualifier, in which case, it shall be true and correct in all respects) on and as of such earlier date provided that for those representations made to the Borrower’s best knowledge, Borrower shall not be required to make any specific inquiry to determine the accuracy of a representation and warranty as of a Borrowing Date, as long as such inquiry is made on a quarterly basis in connection with the delivery of its quarterly compliance certificate.

Each Borrowing Notice or request for issuance of a Facility Letter of Credit with respect to each such Credit Extension (other than an Excluded Advance) shall constitute a representation and warranty by the Borrower that the conditions contained in Sections 5.2(i) and (ii) have been satisfied.

ARTICLE VI

REPRESENTATIONS AND WARRANTIES

The General Partner and the Borrower each respectively (unless otherwise noted) represents and warrants to the Lenders that:

6.1. Existence. It is duly organized, validly existing and in good standing under the laws of the State of Indiana, with its principal place of business in Indianapolis, Indiana and is duly qualified as a foreign corporation or partnership, properly licensed (if required), in good standing and has all requisite authority to conduct its business in each jurisdiction in which its business is conducted, except to the extent the failure to be in good standing, or to be so qualified or licensed, or have such authority, could not, in the aggregate, reasonably be expect to have a Material Adverse Effect. Each of its Material Subsidiaries is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and has all requisite authority to conduct its business in each jurisdiction in which its business is conducted, except to the extent the failure to be in good standing or to have such authority could not, in the aggregate, reasonably be expect to have a Material Adverse Effect.

 

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6.2. Authorization and Validity. It has the power and authority and legal right to execute and deliver the Loan Documents and to perform its obligations thereunder. The execution and delivery by it of the Loan Documents and the performance of its obligations thereunder have been duly authorized by proper proceedings, and the Loan Documents constitute legal, valid and binding obligations of, respectively, the General Partner or the Borrower enforceable against such entity in accordance with their terms, except as enforceability may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity.

6.3. No Conflict; Government Consent. Neither the execution and delivery by it of the Loan Documents, nor the consummation of the transactions therein contemplated, nor performance of the provisions thereof will violate any law, rule, regulation, order, writ, judgment, injunction, decree or award binding on, respectively, the General Partner or the Borrower or any of such entity’s Material Subsidiaries or such entity’s or any Material Subsidiary’s articles of incorporation, by-laws, certificate of limited partnership or partnership agreement or the provisions of any indenture, instrument or agreement to which such entity or any of its Material Subsidiaries is a party or is subject, or by which it, or its Property, is bound, or conflict with or constitute a default thereunder, or result in the creation or imposition of any Lien in, of or on the Property of such entity or a Material Subsidiary pursuant to the terms of any such indenture, instrument or agreement other than any violation, conflict, default or creation of a Lien under any indenture, instrument or agreement which could not reasonably be expected to result in a Material Adverse Effect. No order, consent, approval, license, authorization, or validation of, or filing, recording or registration with, or exemption by, any governmental or public body or authority, or any subdivision thereof, is required to authorize, or is required in connection with the execution, delivery and performance of, or the legality, validity, binding effect or enforceability of, any of the Loan Documents.

6.4. Financial Statements; Material Adverse Change. The December 31, 2020 consolidated financial statements of the General Partner, the Borrower and their Subsidiaries heretofore delivered to the Lenders were prepared in accordance with GAAP in effect on the date such statements were prepared and fairly present in all material respects the consolidated financial condition and operations of the General Partner, the Borrower and their Subsidiaries at such date and the consolidated results of their operations for the period then ended. Since December 31, 2020, there has been no change in the business, Property, financial condition or results of operations of the General Partner, the Borrower and their Subsidiaries (including any litigation, arbitration, governmental investigation, proceeding or inquiry) which could reasonably be expected to have a Material Adverse Effect.

6.5. Taxes. It and its Subsidiaries have filed all United States federal tax returns and all material other tax returns which are required to be filed (taking into account any applicable extensions) and have paid all taxes due pursuant to said returns or pursuant to any assessment received by, respectively, the General Partner or the Borrower or any of its Subsidiaries except (i) such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided in accordance with GAAP and (ii) any amount the failure of which to pay could not reasonably be expected to result in a Material Adverse Effect. No tax liens have been filed and no claims are being asserted with respect to any such taxes other than those which do not attach to any Unencumbered Asset and which could not reasonably be expected to result in a Material Adverse Effect. The charges, accruals and reserves on the books of the General Partner, the Borrower and its Subsidiaries in respect of any taxes or other governmental charges are adequate.

 

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