FIFTH AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
GRIFFIN CAPITAL ESSENTIAL ASSET OPERATING PARTNERSHIP, L.P.
Griffin Capital Essential Asset Operating Partnership, L.P. (the “Partnership”) was formed as a limited partnership under the laws of the State of Delaware, pursuant to a Certificate of Limited Partnership filed with the Office of the Secretary of State of the State of Delaware on August 29, 2008. This Fifth Amended and Restated Limited Partnership Agreement (“Agreement”) is entered into effective as of April 30, 2019 among Griffin Capital Essential Asset REIT II, Inc., a Maryland corporation (the “General Partner”) and the Additional Limited Partners set forth on
Exhibit A
hereto, and such additional Limited Partners party hereto from time to time. Capitalized terms used herein but not otherwise defined shall have the meanings given them in Article 1.
WHEREAS, Griffin Capital Essential Asset REIT, Inc. (the “Original General Partner”) and Griffin Capital Essential Asset Advisor, LLC, as the “Original Class A Limited Partner,” entered into an Agreement of Limited Partnership of The GC Net Lease REIT Operating Partnership, L.P. dated as of August 29, 2008, pursuant to which the Partnership was formed (the “Original Agreement”);
WHEREAS, the Original General Partner and the Limited Partners entered into a First Amended and Restated Limited Partnership Agreement of The GC Net Lease REIT Operating Partnership, L.P. dated as of June 18, 2009 (the “First Amended and Restated Agreement”) to amend and restate the Original Agreement;
WHEREAS, on February 25, 2013, the Partnership filed a Certificate of Amendment to Certificate of Limited Partnership of the Partnership changing the name from The GC Net Lease REIT Operating Partnership, L.P. to Griffin Capital Essential Asset Operating Partnership, L.P.;
WHEREAS, the Original General Partner and the Limited Partners entered into a Second Amended and Restated Limited Partnership Agreement of Griffin Capital Essential Asset Operating Partnership, L.P. dated as of November 5, 2013 (the “Second Amended and Restated Agreement”) to amend and restate the First Amended and Restated Agreement to, among other things, designate and reclassify the existing Partnership Units into Class A Common Units and Class B Common Units and reflect the designation of the “Preferred Units;”
WHEREAS, simultaneous with the entry into the Second Amended and Restated Agreement, the Original General Partner entered into Amendment No. 1 to the Second Amended and Restated Agreement to establish a new series of “Preferred Units” of Limited Partnership Interest and subsequently issued a certain number of such Preferred Units, which Preferred Units were fully redeemed effective November 5, 2015;
WHEREAS, the Original General Partner and the Limited Partners entered into a Third Amended and Restated Limited Partnership Agreement of Griffin Capital Essential Asset Operating Partnership, L.P. dated as of October 15, 2014 (the “Third Amended and Restated Agreement”) to amend and restate the Second Amended and Restated Agreement to, among other things, incorporate various incentive distributions payable to the Original Class A Limited Partner and to make other conforming amendments;
WHEREAS, on August 8, 2018, the Original General Partner issued 5,000,000 shares of Series A Cumulative Perpetual Convertible Preferred Stock (the “Series A Preferred Stock”) in a private offering;
WHEREAS, on December 14, 2018, pursuant to that certain Contribution Agreement by and among the Partnership, the Original General Partner, Griffin Capital Company, LLC (“GCC”), and Griffin Capital, LLC (“GC LLC”) (the “Contribution Agreement”), GCC and GC LLC contributed certain assets to the Partnership, including all of GC LLC’s right, title and interest in all of the membership interests in Griffin Capital Real Estate Company, LLC;
WHEREAS, on December 14, 2018, in connection with the transactions contemplated by the Contribution Agreement, the Original Class A Limited Partner and the Original General Partner entered into that certain Redemption of Limited Partner Interest Agreement, whereby the Partnership redeemed all of the partnership interests held by the Original Class A Limited Partner in the Partnership;
WHEREAS, also on December 14, 2018 and in connection with the transactions contemplated by the Contribution Agreement, the Original General Partner and the Limited Partners entered into a Fourth Amended and Restated Limited Partnership Agreement of Griffin Capital Essential Asset Operating Partnership, L.P. dated as of December 14, 2018 (the “Fourth Amended and Restated Agreement”) to amend and restate the Third Amended and Restated Agreement to, among other things, reflect (i) the authorization of Series A Preferred Units in connection with the issuance of the Series A Preferred Stock, and to set forth the rights, powers, privileges, restrictions, qualifications, and limitations of such Series A Preferred Units, as specified in
Exhibit C
thereto, and (ii) the redemption of the Original Class A Limited Partner’s interest and to make other conforming amendments;
WHEREAS, pursuant to that certain Agreement and Plan of Merger by and among the General Partner, Griffin Capital Essential Asset Operating Partnership II, L.P. (“GCEAR II OP”), Globe Merger Sub, LLC, a subsidiary of the General Partner (“Merger Sub”), the Original General Partner, and the Partnership, on April 30, 2019, the Original General Partner merged with Merger Sub (the “REIT Merger”), with Merger Sub continuing as the surviving entity, and the Partnership merged with GCEAR II OP (the “Partnership Merger,” and collectively with the REIT Merger, the “Mergers”), with the Partnership continuing as the surviving entity and succeeding to the rights and obligations of GCEAR II OP;
WHEREAS, following completion of the Mergers, on April 30, 2019, Merger Sub merged with and into the General Partner, with the General Partner continuing as the surviving entity and the General Partner of the Partnership by operation of law;
WHEREAS, the General Partner now desires to amend and restate the Fourth Amended and Restated Agreement to reflect, among other things, the General Partner as the general partner of the Partnership, the exchange of classes of units of limited partnership interest pursuant to the Partnership Merger, the authorization of additional classes of units of limited partnership interest of GCEAR II OP that were outstanding prior to the Mergers and were issued in connection with the Mergers, and to make other updates to reflect the effects of the Mergers;
NOW, THEREFORE, in consideration of the foregoing, of mutual covenants between the parties hereto, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree to amend and restate the Fourth Amended and Restated Agreement in its entirety and continue the Partnership as a limited partnership under the Delaware Revised Uniform Limited Partnership Act, as amended from time to time, as follows:
ARTICLE 1
DEFINED TERMS
The following defined terms used in this Agreement shall have the meanings specified below:
Act
means the Delaware Revised Uniform Limited Partnership Act, as it may be amended from time to time.
Additional Funds
has the meaning set forth in Section 4.4.
Additional Limited Partner
means a Person admitted to the Partnership as a Limited Partner pursuant to Section 10.1 hereof and who is shown as a Limited Partner on the Partnership Registry.
Additional Securities
means any additional REIT Shares (other than REIT Shares issued in connection with an exchange pursuant to Section 8.5 hereof) or rights, options, warrants or convertible or exchangeable securities containing the right to subscribe for or purchase REIT Shares, as set forth in Section 4.3(a)(iii).
Adjusted Capital Account
means the Capital Account maintained for each Partner as of the end of each Partnership Year (i) increased by any amounts which such Partner is obligated to restore pursuant to any provision of this Agreement or is deemed to be obligated to restore pursuant to the penultimate sentences of Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5) and (ii) decreased by the items described in Regulations Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), and 1.701-4(b)(2)(ii)(d)(6). The foregoing definition of Adjusted Capital Account is intended to comply with the provisions of Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.
Administrative Expenses
means (i) all administrative and operating costs and expenses incurred by the Partnership, (ii) those administrative costs and expenses of the General Partner or its Affiliates, including any salaries or other payments to directors, officers or employees of the General Partner or its Affiliates, and any accounting and legal expenses of the General Partner or its Affiliates, which expenses, the Partners have agreed, are expenses of the Partnership and not the General Partner or such Affiliates, and (iii) to the extent not included in clause (ii) above, REIT Expenses; provided, however, that Administrative Expenses shall not include any administrative costs and expenses incurred by the General Partner or its Affiliates that are attributable to Properties or partnership interests in a Subsidiary Partnership (other than this Partnership) that are owned by the General Partner directly
.
Affiliate or Affiliated
means, as to any other Person, any of the following:
(a) any Person directly or indirectly owning, controlling or holding, with power to vote, 10% or more of the outstanding voting securities of such other Person;
(b) any Person 10% or more of whose outstanding voting securities are directly or indirectly owned, controlled or held, with power to vote, by such other Person;
(c) any Person directly or indirectly controlling, controlled by or under common control with such other Person;
(d) any executive officer, director, trustee or general partner of such other Person; and
(e) any legal entity for which such Person acts as an executive officer, director, trustee or general partner.
Agreed Value
means the fair market value of a Partner’s non-cash Capital Contribution as of the date of contribution as agreed to by such Partner and the General Partner. The names and addresses of the General Partner and the Additional Limited Partners, the number of Partnership Units issued to each of them, and their respective Capital Contributions as of the date of contribution is set forth on
Exhibit A
.
Agreement
means this Fifth Amended and Restated Limited Partnership Agreement, as amended, modified, supplemented or restated from time to time, as the context requires.
Articles of Incorporation
means the First Articles of Amendment and Restatement of the General Partner filed with the Maryland State Department of Assessments and Taxation, as amended, supplemented or restated from time to time.
Capital Account
has the meaning provided in Section 4.5 hereof.
Capital Contribution
means the total amount of cash, cash equivalents, and the Agreed Value of any Property or other asset (other than cash) contributed or agreed to be contributed, as the context requires, to the Partnership by each Partner pursuant to the terms of this Agreement. Any reference to the Capital Contribution of a Partner shall include the Capital Contribution made by a predecessor holder of the Partnership Interest of such Partner.
Cash Amount
means an amount of cash equal to the product of the Value of one REIT Share and the REIT Shares Amount on the date of receipt by the General Partner of a Notice of Exchange.
Certificate
means any instrument or document that is required under the laws of the State of Delaware, or any other jurisdiction in which the Partnership conducts business, to be signed and sworn to by the Partners of the Partnership (either by themselves or pursuant to the power-of-attorney granted to the General Partner in Section 8.2 hereof) and filed for recording in the appropriate public offices within the State of Delaware or such other jurisdiction to perfect or maintain the Partnership as a limited partnership, to effect the admission, withdrawal, or substitution of any Partner of the Partnership, or to protect the limited liability of the Limited Partners as limited partners under the laws of the State of Delaware or such other jurisdiction.
Class
means a class of REIT Shares or Partnership Units, as the context may require.
Class A REIT Shares
means the REIT Shares designated as Class A common stock in the Articles of Incorporation.
Class A Unit
means a Partnership Unit entitling the holder thereof to the rights of a holder of a Class A Unit as provided in this Agreement.
Class AA REIT Shares
means the REIT Shares designated as Class AA common stock in the Articles of Incorporation.
Class AA Unit
means a Partnership Unit entitling the holder thereof to the rights of a holder of a Class AA Unit as provided in this Agreement.
Class AAA REIT Shares
means the REIT Shares designated as Class AAA common stock in the Articles of Incorporation.
Class AAA Unit
means a Partnership Unit entitling the holder thereof to the rights of a holder of a Class AAA Unit as provided in this Agreement.
Class D REIT Shares
means the REIT Shares designated as Class D common stock in the Articles of Incorporation.
Class D Unit
means a Partnership Unit entitling the holder thereof to the rights of a holder of a Class D Unit as provided in this Agreement.
Class E REIT Shares
means the REIT Shares designated as Class E common stock in the Articles of Incorporation.
Class E Unit
means a Partnership Unit entitling the holder thereof to the rights of a holder of a Class E Unit as provided in this Agreement.
Class I REIT Shares
means the REIT Shares designated as Class I common stock in the Articles of Incorporation.
Class I Unit
means a Partnership Unit entitling the holder thereof to the rights of a holder of a Class I Unit as provided in this Agreement.
Class S REIT Shares
means the REIT Shares designated as Class S common stock in the Articles of Incorporation.
Class S Unit
means a Partnership Unit entitling the holder thereof to the rights of a holder of a Class S Unit as provided in this Agreement.
Class T REIT Shares
means the REIT Shares designated as Class T common stock in the Articles of Incorporation.
Class T Unit
means a Partnership Unit entitling the holder thereof to the rights of a holder of a Class T Unit as provided in this Agreement.
Code
means the Internal Revenue Code of 1986, as amended, and as hereafter amended from time to time. Reference to any particular provision of the Code shall mean that provision in the Code at the date hereof and any successor provision of the Code.
Common Stockholders
means holders of REIT Shares.
Common Unit
means a Partnership Unit that is not a Preferred Unit.
Distributions
means any dividends or other distributions of money or other property paid by the General Partner to the holders of its REIT Shares or preferred stock, including dividends that may constitute a return of capital for federal income tax purposes.
Event of Bankruptcy as to any Person
means the filing of a petition for relief as to such Person as debtor or bankrupt under the Bankruptcy Code of 1978 or similar provision of law of any jurisdiction (except if such petition is contested by such Person and has been dismissed within 90 days); insolvency or bankruptcy of such Person as finally determined by a court proceeding; filing by such Person of a petition or application to accomplish the same or for the appointment of a receiver or a trustee for such Person or a substantial part of his assets; commencement of any proceedings relating to such Person as a debtor under any other reorganization, arrangement, insolvency, adjustment of debt or liquidation law of any jurisdiction, whether now in existence or hereinafter in effect, either by such Person or by another, provided that if such proceeding is commenced by another, such Person indicates his approval of such proceeding, consents thereto or acquiesces therein, or such proceeding is contested by such Person and has not been finally dismissed within 90 days.
Exchange Right
has the meaning provided in Section 8.5(a) hereof.
Exchanging Partner
has the meaning provided in Section 8.5(a) hereof.
General Partner
means Griffin Capital Essential Asset REIT II, Inc., a Maryland corporation, and any Person who becomes a substitute or additional General Partner as provided herein, and any of their successors as General Partner.
General Partnership Interest
means a Partnership Interest held by the General Partner that is a general partnership interest. The number of Class E Units held by the General Partner equal to one percent (1%) of all outstanding Common Units from time to time is hereby designated as the General Partnership Interest.
Indemnitee
means (i) the General Partner or a director, officer or employee of the General Partner or Partnership, (ii) such other Persons (including Affiliates of the General Partner or the Partnership) as the General Partner may designate from time to time, in its sole and absolute discretion.
Independent Director
means a director of the General Partner who is not an officer or employee of the General Partner and meets the requirements for independence as defined by the General Partner’s Articles of Incorporation.
Joint Venture
or
Joint Ventures
means those joint venture or general partnership arrangements in which the General Partner or the Partnership is a co-venturer or general partner which are established to acquire Properties.
Limited Partner
means any Person named as a Limited Partner on
Exhibit A
attached hereto, and any Person who becomes a Substitute Limited Partner or Additional Limited Partner, in such Person’s capacity as a Limited Partner in the Partnership. A Limited Partner may hold Common Units, Preferred Units, or both.
Limited Partnership Interest
means the ownership interest of a Limited Partner in the Partnership at any particular time, including the right of such Limited Partner to any and all benefits to which such Limited Partner may be entitled as provided in this Agreement and in the Act, together with the obligations of such Limited Partner to comply with all the provisions of this Agreement and of such Act.
Liquidation Preference
means, with respect to any Preferred Unit as of any date of determination, the amount (including distributions accumulated, due, or payable through the date of determination) payable with respect to such Preferred Unit (as established by the instrument designating such Preferred Unit) upon the voluntary or involuntary dissolution or winding up of the Partnership as a preference over distributions to Partnership Units ranking junior to such Preferred Unit.
Listing
means the approval of the REIT Shares, issued by the General Partner pursuant to an effective registration statement, on a National Securities Exchange. Upon Listing, the shares shall be deemed Listed.
Loss
has the meaning provided in Section 5.1(f) hereof.
National Securities Exchange
means any securities exchange registered with the SEC pursuant to Section 6 of the Securities Exchange Act of 1934, as amended.
Net Asset Value
means (i) for any Partnership Units, the net asset value of such Partnership Units, determined as of the end of business each day as described in the Prospectus and (ii) for any REIT Shares, the net asset value of such REIT Shares, determined as of the end of business each day as described in the Prospectus.
Net Asset Value Per REIT Share
means, for each Class of REIT Shares, the net asset value per share of such Class of REIT Shares, determined as of each business day as described in the Prospectus.
Net Asset Value Per Unit
means, for each Class of Partnership Unit, the Net Asset Value Per REIT Share applicable to the corresponding Class of REIT Shares as of a given time.
Notice of Exchange
means the Notice of Exercise of Exchange Right substantially in the form attached as
Exhibit B
hereto.
Offer
has the meaning set forth in Section 7.1(b)(ii) hereof.
Offering
means an offering of Stock that is either (a) registered with the SEC, or (b) exempt from such registration, excluding Stock offered under any employee benefit plan.
Opt-out Election
has the meaning set forth in Section 11.5(c) hereof.
Partner
means any General Partner or Limited Partner.
Partner Nonrecourse Debt Minimum
Gain
has the meaning set forth in Regulations Section 1.704-2(i). A Partner’s share of Partner Nonrecourse Debt Minimum Gain shall be determined in accordance with Regulations Section 1.704-2(i)(5).
Partnership
means Griffin Capital Essential Asset Operating Partnership, L.P., a Delaware limited partnership.
Partnership Interest
means an ownership interest in the Partnership held by either a Limited Partner or the General Partner and includes any and all benefits to which the holder of such a Partnership Interest may be entitled as provided in this Agreement, together with all obligations of such Person to comply with the terms and provisions of this Agreement.
Partnership Minimum Gain
has the meaning set forth in Regulations Section 1.704-2(d). In accordance with Regulations Section 1.704-2(d), the amount of Partnership Minimum Gain is determined by first computing, for each Partnership nonrecourse liability, any gain the Partnership would realize if it disposed of the property subject to that liability for no consideration other than full satisfaction of the liability, and then aggregating the separately computed gains. A Partner’s share of Partnership Minimum Gain shall be determined in accordance with Regulations Section 1.704-2(g)(1).
Partnership Record Date
means the record date established by the General Partner for the distribution of cash pursuant to Section 5.2 hereof, which record date shall be the same as the record date established by the General Partner for a Distribution to the Stockholders of some or all of its portion of such distribution.
Partnership Representative
has the meaning set forth in Section 11.5(a) hereof.
Partnership Unit
means a fractional, undivided share of the Partnership Interests of all Partners issued hereunder, including Class A Units, Class AA Units, Class AAA Units, Class D Units, Class E Units, Class I Units, Class S Units, and Class T Units. Without limitation on the authority of the General Partner as set forth in Section 4.3 hereof, the General Partner may designate any Partnership Units, when issued, as Common Units or Preferred Units, may establish any other class of Partnership Units, and may designate one or more series of any class of Partnership Units. The allocation of Partnership Units among the Partners shall be as set forth on
Exhibit A
, as such Exhibit may be amended from time to time.
Partnership Year
means the fiscal year of the Partnership, which shall be the calendar year.
Percentage Interest
means, as to a Partner, with respect to any class or series of Partnership Units held by such Partner, its interest in such class or series of Partnership Units as determined by dividing the number of Partnership Units in such class or series owned by such Partner by the total number of Partnership Units in such class or series then outstanding. For purposes of determining the rights and relationships among the various classes and series of Partnership Units, Preferred Units shall not be considered to have any share of the aggregate Percentage Interest in the Partnership unless, and only to the extent, provided otherwise in the instrument creating such class or series of Preferred Units.
Person
means any individual, partnership, limited liability company, corporation, joint venture, trust or other entity.
Preferred Unit
means any Partnership Unit issued from time to time pursuant to Section 4.3 hereof that is specifically designated by the General Partner at the time of its issuance as a Preferred Unit. Each class or series of Preferred Units shall have such designations, preferences, and relative, participating, optional, or other special rights, powers, and duties, including rights, powers and duties senior to the Common Units, all as determined by the General Partner, subject to compliance with the requirements of Section 4.3 hereof.
Profit
has the meaning provided in Section 5.1(f) hereof.
Property
or
Properties
means the real properties or real estate investments which are acquired by the General Partner either directly or through the Partnership, Joint Ventures, partnerships or other entities.
Prospectus
means the prospectus included in the most recent effective registration statement filed by the General Partner with the SEC with respect to the applicable Offering, as such prospectus may be amended or supplemented from time to time.
Push-out Election
has the meaning set forth in Section 11.5(c) hereof.
Regulations
means the federal income tax regulations promulgated under the Code, as amended and as hereafter amended from time to time. Reference to any particular provision of the Regulations shall mean that provision of the Regulations on the date hereof and any successor provision of the Regulations.
Regulatory Allocations
has the meaning set forth in Section 5.1(g) hereof.
REIT
means a real estate investment trust under Sections 856 through 860 of the Code.
REIT Expenses
means (i) costs and expenses relating to the formation and continuity of existence and operation of the General Partner and any Subsidiaries thereof (which Subsidiaries shall, for purposes hereof, be included within the definition of General Partner), including taxes, fees and assessments associated therewith, any and all costs, expenses or fees payable to any director, officer, or employee of the General Partner, (ii) costs and expenses relating to any Offering and registration of securities or exemption from registration by the General Partner and all statements, reports, fees and expenses incidental thereto, including, without limitation, underwriting discounts and sales commissions applicable to any such Offering of securities, any stockholder servicing fees and distribution fees, and any costs and expenses associated with any claims made by any holders of such securities or any underwriters or placement agents thereof, (iii) costs and expenses associated with any repurchase of any securities by the General Partner, (iv) costs and expenses associated with the preparation and filing of any periodic or other reports and communications by the General Partner under federal, state or local laws or regulations, including filings with the SEC, (v) costs and expenses associated with compliance by the General Partner with laws, rules and regulations promulgated
by any regulatory body, including the SEC and any National Securities Exchange, (vi) costs and expenses associated with any 401(k) plan, incentive plan, bonus plan or other plan providing for compensation for the employees of the General Partner, (vii) costs and expenses incurred by the General Partner relating to any issuance or redemption of Partnership Interests, and (viii) all other operating or administrative costs of the General Partner incurred in the ordinary course of its business on behalf of or in connection with the Partnership.
REIT Share
means a share of common stock, par value $0.001 per share, in the General Partner (or successor entity, as the case may be), including Class A REIT Shares, Class AA REIT Shares, Class AAA REIT Shares, Class D REIT Shares, Class E REIT Shares, Class I REIT Shares, Class S REIT Shares, and Class T REIT Shares, the terms and conditions of which are set forth in the Articles of Incorporation.
REIT Shares Amount
means a number of REIT Shares having the same Class designation as the Class of Partnership Units offered for exchange by an Exchanging Partner equal to such number of Partnership Units; provided that in the event the General Partner issues to all holders of REIT Shares rights, options, warrants or convertible or exchangeable securities entitling the stockholders to subscribe for or purchase REIT Shares, or any other securities or property (collectively, the “
rights
”), and the rights have not expired at the Specified Exchange Date, then the REIT Shares Amount shall also include the rights issuable to a holder of the REIT Shares Amount of REIT Shares on the record date fixed for purposes of determining the holders of REIT Shares entitled to rights.
SEC
means the Securities and Exchange Commission.
Securities Act
means the Securities Act of 1933, as amended.
Service
means the Internal Revenue Service.
Specified Exchange Date
means the first business day of the month that is at least 60 business days after the receipt by the General Partner of the Notice of Exchange.
Stock
means shares of stock of the General Partner of any class or series, including REIT Shares, preferred stock or shares-in-trust.
Stockholders
means the registered holders of the General Partner’s Stock.
Subsidiary
means, with respect to any Person, any corporation or other entity of which a majority of (i) the voting power of the voting equity securities or (ii) the outstanding equity interests is owned, directly or indirectly, by such Person.
Subsidiary Partnership
means any partnership of which the partnership interests therein are owned by the General Partner or a direct or indirect Subsidiary of the General Partner.
Substitute Limited Partner
means any Person admitted to the Partnership as a Limited Partner pursuant to Section 9.3 hereof.
Successor Entity
has the meaning set forth in Section 4.3(a)(ii) herein
.
Surviving General Partner
has the meaning set forth in Section 7.1(c) hereof.
Transaction
has the meaning set forth in Section 7.1(b) hereof.
Transfer
has the meaning set forth in Section 9.2(a) hereof.
Value
means, with respect to any Class of REIT Shares, the average of the daily market price of such REIT Share for the ten (10) consecutive trading days immediately preceding the date of such valuation. The market price for each such trading day shall be: (i) if the REIT Shares are Listed, the sale price, regular way, on such day, or if no such sale takes place on such day, the average of the closing bid and asked prices, regular way, on such day; (ii) if the REIT Shares are not Listed, the Net Asset Value Per REIT Share for the REIT Shares of that Class;
provided
that
if there are no bid and asked prices reported during the ten (10) days prior to the date in question, the value of the REIT Shares shall be determined by the General Partner acting in good faith on the basis of such quotations and other information as it considers, in its reasonable judgment, appropriate. In the event the REIT Shares Amount includes rights that a holder of REIT Shares would be entitled to receive, then the value of such rights shall be determined by the General Partner acting in good faith on the basis of such quotations and other information as it considers, in its reasonable judgment, appropriate.
ARTICLE 2
PARTNERSHIP FORMATION AND IDENTIFICATION
2.1
Formation
. The Partnership was formed as a limited partnership pursuant to the Act for the purposes and upon the terms and conditions set forth in this Agreement.
2.2
Name, Office and Registered Agent
. The name of the Partnership is Griffin Capital Essential Asset Operating Partnership, L.P. The specified office and place of business of the Partnership shall be Griffin Capital Plaza, 1520 E. Grand Avenue, El Segundo, CA 90245 (telephone number (310) 606-5900; facsimile number (310) 606-5910). The General Partner may at any time change the location of such office, provided the General Partner gives notice to the Partners of any such change. The name and address of the Partnership’s registered agent is The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801. The sole duty of the registered agent as such is to forward to the Partnership any notice that is served on him as registered agent.
2.3
Partners
.
(a)
The General Partner of the Partnership is Griffin Capital Essential Asset REIT II, Inc., a Maryland corporation. Its principal place of business is the same as that of the Partnership.
(b)
The Limited Partners are those Persons identified as Limited Partners on
Exhibit A
hereto, as amended from time to time.
2.4
Term and Dissolution
.
(a)
The Partnership shall have perpetual duration, except that the Partnership shall be dissolved upon the first to occur of any of the following events:
(i)
The occurrence of an Event of Bankruptcy as to a General Partner or the dissolution, death, removal or withdrawal of a General Partner unless the business of the Partnership is continued pursuant to Section 7.3(b) hereof; provided that if a General Partner is on the date of such occurrence a partnership, the dissolution of such General Partner as a result of the dissolution, death, withdrawal, removal or Event of Bankruptcy of a partner in such partnership shall not be an event of dissolution of the Partnership
if the business of such General Partner is continued by the remaining partner or partners, either alone or with additional partners, and such General Partner and such partners comply with any other applicable requirements of this Agreement;
(ii)
The passage of 90 days after the sale or other disposition of all or substantially all of the assets of the Partnership (provided that if the Partnership receives an installment obligation as consideration for such sale or other disposition, the Partnership shall continue, unless sooner dissolved under the provisions of this Agreement, until such time as such note or notes are paid in full);
(iii)
The exchange of all Limited Partnership Interests (other than any of such interests held by the General Partner or Affiliates of the General Partner) for REIT Shares or the securities of any other entity; or
(iv)
The election by the General Partner that the Partnership should be dissolved.
(b)
Upon dissolution of the Partnership (unless the business of the Partnership is continued pursuant to Section 7.3(b) hereof), the General Partner (or its trustee, receiver, successor or legal representative) shall amend or cancel the Certificate and liquidate the Partnership’s assets and apply and distribute the proceeds thereof in accordance with Section 5.6 hereof. Notwithstanding the foregoing, the liquidating General Partner may either (i) defer liquidation of, or withhold from distribution for a reasonable time, any assets of the Partnership (including those necessary to satisfy the Partnership’s debts and obligations), or (ii) distribute the assets to the Partners in kind.
2.5
Filing of Certificate and Perfection of Limited Partnership
. The General Partner shall execute, acknowledge, record and file at the expense of the Partnership, the Certificate any and all amendments thereto and all requisite fictitious name statements and notices in such places and jurisdictions as may be necessary to cause the Partnership to be treated as a limited partnership under, and otherwise to comply with, the laws of each state or other jurisdiction in which the Partnership conducts business.
2.6
Certificates Describing Partnership Units
. At the request of a Limited Partner, the General Partner, at its option, may issue a certificate summarizing the terms of such Limited Partner’s interest in the Partnership, including the number and Class of Partnership Units owned and the Percentage Interest represented by such Partnership Units as of the date of such certificate. Any such certificate (i) shall be in form and substance as approved by the General Partner, (ii) shall not be negotiable and (iii) shall bear a legend to the following effect:
THIS CERTIFICATE IS NOT NEGOTIABLE. THE PARTNERSHIP UNITS REPRESENTED BY THIS CERTIFICATE ARE GOVERNED BY AND TRANSFERABLE ONLY IN ACCORDANCE WITH THE PROVISIONS OF THE FIFTH AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT OF GRIFFIN CAPITAL ESSENTIAL ASSET OPERATING PARTNERSHIP, L.P., AS AMENDED FROM TIME TO TIME.
ARTICLE 3
BUSINESS OF THE PARTNERSHIP
The purpose and nature of the business to be conducted by the Partnership is (i) to conduct any business that may be lawfully conducted by a limited partnership organized pursuant to the Act, provided, however, that such business shall be limited to and conducted in such a manner as to permit the General Partner at all times to qualify as a REIT, unless the General Partner otherwise ceases to qualify as a REIT, (ii) to enter into any partnership, joint venture or other similar arrangement to engage in any of the foregoing or the ownership of interests in any entity engaged in any of the foregoing, and (iii) to do anything necessary or incidental to the foregoing. In connection with the foregoing, and without limiting the General Partner’s right in its sole and absolute discretion to cease qualifying as a REIT, the Partners acknowledge that the General Partner’s current status as a REIT and the avoidance of income and excise taxes on the General Partner inures to the benefit of all the Partners and not solely to the General Partner. Notwithstanding the foregoing, the Limited Partners agree that the General Partner may terminate its status as a REIT under the Code at any time to the full extent permitted under the Articles of Incorporation. The General Partner shall also be empowered to do any and all acts and things necessary or prudent to ensure that the Partnership will not be classified as a “publicly traded partnership” for purposes of Section 7704 of the Code.
ARTICLE 4
CAPITAL CONTRIBUTIONS AND ACCOUNTS
4.1
Capital Contributions
. The General Partner and the Limited Partners have made Capital Contributions to the Partnership in exchange for the Partnership Interests set forth opposite their names on
Exhibit A
, as amended from time to time.
4.2
Classes of Partnership Units
. The General Partner is hereby authorized to cause the Partnership to issue Partnership Units designated as Class A Units, Class AA Units, Class AAA Units, Class D Units, Class E Units, Class I Units, Class S Units, and Class T Units. Each such Class shall have the rights and obligations attributed to that Class under this Agreement.
4.3
Additional Capital Contributions and Issuances of Additional Partnership Interests
. Except as provided in this Section 4.3 or in Section 4.4, the Partners shall have no right or obligation to make any additional Capital Contributions or loans to the Partnership. The General Partner may contribute additional capital to the Partnership, from time to time, and receive additional Partnership Interests in respect thereof, in the manner contemplated in this Section 4.3.
(a)
Issuances of Additional Partnership Interests.
(i)
General
. The General Partner is hereby authorized to cause the Partnership to issue such additional Partnership Interests in the form of Partnership Units for any Partnership purpose at any time or from time to time, to the Partners (including the General Partner) or to other Persons for such consideration and on such terms and conditions as shall be established by the General Partner in its sole and absolute discretion, all without the approval of any Limited Partner, including but not limited to, Partnership Units issued in connection with the issuance of REIT Shares or of other interests in the General Partner. Any additional Partnership Interests issued thereby may be issued in one or more classes, or one or more series of any of such classes, with such designations, preferences and relative, participating, optional or other special rights, powers and duties, including rights, powers and duties senior to any Common Units, all as shall be determined by the General Partner in its sole and absolute discretion and without the approval of any Limited Partner, subject to Delaware law, including, without limitation: (i) the allocations of items of Partnership income, gain, loss, deduction and credit to each such class or series of Partnership Interests; (ii) the right of each such class or series of Partnership Interests to share in Partnership distributions; and (iii)
the rights of each such class or series of Partnership Interests upon dissolution and liquidation of the Partnership; provided, however, that no additional Partnership Interests shall be issued to the General Partner unless:
(1) (A) the additional Partnership Interests are issued in connection with an issuance of REIT Shares of or other interests in the General Partner, which shares or interests have designations, preferences and other rights, all such that the economic interests are substantially similar to the designations, preferences and other rights of the additional Partnership Interests issued to the General Partner by the Partnership in accordance with this Section 4.3 and (B) the General Partner shall make a Capital Contribution to the Partnership in an amount equal to the proceeds raised in connection with the issuance of such shares of stock of or other interests in the General Partner;
(2) the additional Partnership Interests are issued in exchange for property owned by the General Partner with a fair market value, as determined by the General Partner, in good faith, equal to the value of the Partnership Interests; or
(3) additional Partnership Interests are issued to all Partners holding Partnership Units in proportion to their respective Percentage Interests.
In addition, the General Partner may acquire Partnership Interests from other Partners pursuant to this Agreement. In the event that the Partnership issues Partnership Interests pursuant to this Section 4.3(a), the General Partner shall make such revisions to this Agreement (without any requirement of receiving approval of the Limited Partners) as it deems necessary to reflect the issuance of such additional Partnership Interests and any special rights, powers, and duties associated therewith.
Without limiting the foregoing, the General Partner is expressly authorized to cause the Partnership to issue Partnership Units for less than fair market value, so long as the General Partner concludes in good faith that such issuance is in the best interests of the General Partner and the Partnership.
(ii)
Adjustment Events
. In the event the General Partner (i) declares or pays a dividend on any Class of its outstanding REIT Shares in REIT Shares or makes a distribution to all holders of any Class of its outstanding REIT Shares in REIT Shares, (ii) subdivides any Class of its outstanding REIT Shares, or (iii) combines any Class of its outstanding REIT Shares into a smaller number of REIT Shares with respect to any Class of REIT Shares, then a corresponding adjustment to the number of outstanding Partnership Units of the applicable Class necessary to maintain the proportionate relationship between the number of outstanding Partnership Units of such Class to the number of outstanding REIT Shares of such Class shall automatically be made. Additionally, in the event that any other entity shall become General Partner pursuant to any merger, consolidation, or combination of the General Partner with or into another entity (the “Successor Entity”), the number of outstanding Partnership Units of each Class shall be adjusted by multiplying such number by the number of shares of the Successor Entity into which one REIT Share of such Class is converted pursuant to such merger, consolidation, or combination, determined as of the date of such merger, consolidation, or combination. Any adjustment to the number of outstanding Partnership Units of any Class shall become effective immediately after the effective date of such event retroactive to the record date, if any, for such event; provided, however, that if the General Partner receives a Notice of Exchange after the record date, but prior to the effective date of such dividend, distribution, subdivision, or combination, or such merger, consolidation, or combination, the number of outstanding Partnership Units of any Class shall be determined as if the General Partner had received the Notice of Exchange immediately prior to the record date for such dividend, distribution, subdivision, or combination
or such merger, consolidation, or combination. If the General Partner takes any other action affecting the REIT Shares other than actions specifically described above and, in the opinion of the General Partner such action would require an adjustment to the number of Partnership Units to maintain the proportionate relationship between the number of outstanding Partnership Units to the number of outstanding REIT Shares, the General Partner shall have the right to make such adjustment to the number of Partnership Units, to the extent permitted by law, in such manner and at such time as the General Partner, in its sole discretion, may determine to be appropriate under the circumstances.
(iii)
Upon Issuance of Additional Securities
. The General Partner shall not issue any Additional Securities other than to all holders of REIT Shares, unless (A) the General Partner shall cause the Partnership to issue to the General Partner, as the General Partner may designate, Partnership Interests or rights, options, warrants or convertible or exchangeable securities of the Partnership having designations, preferences and other rights, all such that the economic interests are substantially similar to those of the Additional Securities, and (B) the General Partner contributes the net proceeds from the issuance of such Additional Securities and from any exercise of rights contained in such Additional Securities, directly and through the General Partner, to the Partnership; provided, however, that the General Partner is allowed to issue Additional Securities in connection with an acquisition of a property to be held directly by the General Partner, but if and only if, such direct acquisition and issuance of Additional Securities have been approved and determined to be in the best interests of the General Partner and the Partnership by a majority of the Independent Directors (as defined in the Articles of Incorporation), in which instance the General Partner is allowed to use net proceeds from the issuance and sale of such Additional Securities to redeem REIT Shares pursuant to a share redemption program. Without limiting the foregoing, the General Partner is expressly authorized to issue Additional Securities for less than fair market value, and to cause the Partnership to issue to the General Partner corresponding Partnership Interests, so long as (x) the General Partner concludes in good faith that such issuance is in the best interests of the General Partner and the Partnership, including without limitation, the issuance of REIT Shares and corresponding Partnership Units pursuant to an employee share purchase plan providing for employee purchases of REIT Shares at a discount from fair market value or employee stock options that have an exercise price that is less than the fair market value of the REIT Shares, either at the time of issuance or at the time of exercise, and (y) the General Partner contributes all proceeds from such issuance to the Partnership. For example, and without limiting the foregoing, in the event the General Partner issues REIT Shares of any Class for a cash purchase price and contributes all of the net proceeds of such issuance to the Partnership as required hereunder, the General Partner shall be issued a number of additional Partnership Units having the same Class designation as the issued REIT Shares equal to such number of such REIT Shares issued by the General Partner, the net proceeds of which were so contributed.
(b)
Certain Deemed Contributions of Proceeds of Issuance of REIT Shares
. In connection with any and all issuances of REIT Shares, the General Partner shall make Capital Contributions to the Partnership of the proceeds therefrom, provided that if the proceeds actually received and contributed by the General Partner are less than the gross proceeds of such issuance as a result of any underwriter’s discount or other expenses paid or incurred in connection with such issuance, then the General Partner shall be deemed to have made Capital Contributions to the Partnership in the aggregate amount of the gross proceeds of such issuance and the Partnership shall be deemed simultaneously to have paid such offering expenses in accordance with Section 6.5 hereof and in connection with the required issuance of additional Partnership Units to the General Partner for such Capital Contributions pursuant to Section 4.3(a) hereof. In connection with any and all issuances of REIT Shares pursuant to the General Partner’s distribution
reinvestment plan, the General Partner shall be deemed to have made Capital Contributions to the Partnership in the aggregate amount of the distributions that have been reinvested in respect of the REIT Shares issued by the General Partner in return for an equal number of Partnership Units having the same Class designation as the issued REIT Shares.
4.4
Additional Funding
. If the General Partner determines that it is in the best interests of the Partnership to provide for additional Partnership funds (“Additional Funds”) for any Partnership purpose, the General Partner may (i) cause the Partnership to obtain such funds from outside borrowings, or (ii) elect to have the General Partner or any of its Affiliates provide such Additional Funds to the Partnership through loans or otherwise.
4.5
Capital Accounts
. A separate capital account (a “Capital Account”) shall be established and maintained for each Partner in accordance with Regulations Section 1.704-1(b)(2)(iv). If (i) a new or existing Partner acquires an additional Partnership Interest in exchange for more than a de minimis Capital Contribution, (ii) the Partnership distributes to a Partner more than a de minimis amount of Partnership property as consideration for a Partnership Interest, (iii) the Partnership is liquidated within the meaning of Regulation Section 1.704-1(b)(2)(ii)(g) or (iv) a Partnership Interest (other than a de minimis interest) is granted as consideration for the provision of services to or for the benefit of the Partnership by an existing Partner acting in a partner capacity, or by a new Partner acting in a partner capacity in anticipation of being a Partner, the General Partner shall revalue the property of the Partnership to its fair market value (as determined by the General Partner, in its sole and absolute discretion, and taking into account Section 7701(g) of the Code) in accordance with Regulations Section 1.704-1(b)(2)(iv)(f). When the Partnership’s property is revalued by the General Partner, the Capital Accounts of the Partners shall be adjusted in accordance with Regulations Sections 1.704-1(b)(2)(iv)(f) and (g), which generally require such Capital Accounts to be adjusted to reflect the manner in which the unrealized gain or loss inherent in such property (that has not been reflected in the Capital Accounts previously) would be allocated among the Partners pursuant to Section 5.1 if there were a taxable disposition of such property for its fair market value (as determined by the General Partner, in its sole and absolute discretion, and taking into account Section 7701(g) of the Code) on the date of the revaluation.
4.6
Percentage Interests
. If the number of outstanding Partnership Units increases or decreases during a taxable year, each Partner’s Percentage Interest shall be adjusted by the General Partner effective as of the effective date of each such increase or decrease to a percentage equal to the number of Partnership Units held by such Partner divided by the aggregate number of Partnership Units outstanding after giving effect to such increase or decrease. If the Partners’ Percentage Interests are adjusted pursuant to this Section 4.6, the Profits and Losses for the taxable year in which the adjustment occurs shall be allocated between the part of the year ending on the day when the Partnership’s property is revalued by the General Partner and the part of the year beginning on the following day either (i) as if the taxable year had ended on the date of the adjustment or (ii) based on the number of days in each part. The General Partner, in its sole and absolute discretion, shall determine which method shall be used to allocate Profits and Losses for the taxable year in which the adjustment occurs. The allocation of Profits and Losses for the earlier part of the year shall be based on the Percentage Interests before adjustment, and the allocation of Profits and Losses for the later part of the year shall be based on the adjusted Percentage Interests.
4.7
No Interest on Contributions
. No Partner shall be entitled to interest on its Capital Contribution.
4.8
Return of Capital Contributions
. No Partner shall be entitled to withdraw any part of its Capital Contribution or its Capital Account or to receive any distribution from the Partnership, except as specifically provided in this Agreement. Except as otherwise provided herein, there shall be no obligation to return to any Partner or withdrawn Partner any part of such Partner’s Capital Contribution for so long as the Partnership continues in existence.
4.9
No Third Party Beneficiary
. No creditor or other third party having dealings with the Partnership shall have the right to enforce the right or obligation of any Partner to make Capital Contributions or loans or to pursue any other right or remedy hereunder or at law or in equity, it being understood and agreed that the provisions of this Agreement shall be solely for the benefit of, and may be enforced solely by, the parties hereto and their respective successors and assigns. None of the rights or obligations of the Partners herein set forth to make Capital Contributions or loans to the Partnership shall be deemed an asset of the Partnership for any purpose by any creditor or other third party, nor may such rights or obligations be sold, transferred or assigned by the Partnership or pledged or encumbered by the Partnership to secure any debt or other obligation of the Partnership or of any of the Partners. In addition, it is the intent of the parties hereto that no distribution to any Limited Partner shall be deemed a return of money or other property in violation of the Act. However, if any court of competent jurisdiction holds that, notwithstanding the provisions of this Agreement, any Limited Partner is obligated to return such money or property, such obligation shall be the obligation of such Limited Partner and not of the General Partner. Without limiting the generality of the foregoing, a deficit Capital Account of a Partner shall not be deemed to be a liability of such Partner nor an asset or property of the Partnership and upon a liquidation within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g), if any Partner has a deficit Capital Account (after giving effect to all contributions, distributions, allocations and other Capital Account adjustments for all taxable years, including the year during which such liquidation occurs), such Partner shall have no obligation to make any Capital Contribution to reduce or eliminate the negative balance of such Partner’s Capital Account.
ARTICLE 5
PROFITS AND LOSSES; DISTRIBUTIONS
5.1
Allocation of Profit and Loss
.
(a)
General
. After giving effect to the special allocations set forth in Sections 5.1(b) and 5.1(c) and the priority allocation with respect to the Preferred Units in Section 5.1(d) below, the Partnership’s Profits and Losses shall be allocated among the Partners in each taxable year (or portion thereof) as provided below.
(i)
Profits
. Profits shall be allocated:
(A) first, to Partners holding Preferred Units (and if there are Preferred Units with different priorities in preference in distribution, then in the order of their preference in distribution) to the extent that Losses previously allocated to such Partners pursuant to Section 5.1(a)(ii)(B) below exceed Profits previously allocated to such Partners pursuant to this Section 5.1(a)(i)(A);
(B) second, to the General Partner to the extent that Losses previously allocated to the General Partner pursuant to Section 5.1(a)(ii)(C) below exceed Profits previously allocated to the General Partner pursuant to this Section 5.1(a)(i)(B);
(C) third, to those Partners, including the General Partner, holding Common Units who have been allocated Losses pursuant to Section 5.1(a)(ii)(A) below in excess of Profits previously allocated to such Partners pursuant to this Section 5.1(a)(i)(C) (and as among such Partners, in proportion to their respective excess amounts);
(D) fourth, to the Partners in accordance with their respective Percentage Interests in Common Units.
(ii)
Losses
. Losses shall be allocated:
(A) first, to the Partners, including the General Partner, holding Common Units in accordance with their respective Percentage Interests in Common Units, until the Adjusted Capital Account (ignoring for this purpose any amounts a Partner is obligated to contribute to the capital of the Partnership or is deemed obligated to contribute pursuant to Regulations Section 1.704-1(b)(2)(ii)(c)(2)) of each Partner is reduced to zero;
(B) second, to Partners holding Preferred Units in accordance with each such Partner’s respective percentage interests in the Preferred Units determined under the respective terms of the Preferred Units (and if there are Preferred Units with different priorities in preference in distribution, then in the reverse order of their preference in distribution), until the Adjusted Capital Account (modified in the same manner as in clause (A)) of each such holder is reduced to zero;
(C) third, to the General Partner.
(b)
Minimum Gain Chargeback
. Notwithstanding any provision to the contrary, (i) any expense of the Partnership that is a “nonrecourse deduction” within the meaning of Regulations Section 1.704-2(b)(1) shall be allocated in accordance with the Partners’ respective Percentage Interests, (ii) any expense of the Partnership that is a “partner nonrecourse deduction” within the meaning of Regulations Section 1.704-2(i)(2) shall be allocated to the Partner that bears the “economic risk of loss” with respect to the “partner nonrecourse debt” within the meaning of Regulations Section 1.704-2(b)(4) to which such partner nonrecourse deduction is attributable in accordance with Regulations Section 1.704-2(i)(1), (iii) if there is a net decrease in Partnership Minimum Gain within the meaning of Regulations Section 1.704-2(f)(1) for any Partnership taxable year, then, subject to the exceptions set forth in Regulations Section 1.704-2(f)(2),(3), (4) and (5), items of gain and income shall be allocated among the Partners in accordance with Regulations Section 1.704-2(f) and the ordering rules contained in Regulations Section 1.704-2(j), and (iv) if there is a net decrease in Partner Nonrecourse Debt Minimum Gain within the meaning of Regulations Section 1.704-2(i)(4) for any Partnership taxable year, then, subject to the exceptions set forth in Regulations Section 1.704-(2)(g), items of gain and income shall be allocated among the Partners in accordance with Regulations Section 1.704-2(i)(4) and the ordering rules contained in Regulations Section 1.704-2(j). A Partner’s “interest in partnership profits” for purposes of determining its share of the nonrecourse liabilities of the Partnership within the meaning of Regulations Section 1.752-3(a)(3) shall be such Partner’s Percentage Interest.
(c)
Qualified Income Offset
. If a Partner unexpectedly receives in any taxable year an adjustment, allocation, or distribution described in subparagraphs (4), (5), or (6) of Regulations Section 1.704-1(b)(2)(ii)(d) that causes or increases a deficit balance in such Partner’s Capital Account that exceeds the sum of such Partner’s shares of Partnership Minimum Gain and Partner Nonrecourse Debt Minimum Gain, as determined in accordance with Regulations Sections 1.704-2(g) and 1.704-2(i), such Partner shall
be allocated specially for such taxable year (and, if necessary, later taxable years) items of income and gain in an amount and manner sufficient to eliminate such deficit Capital Account balance as quickly as possible as provided in Regulations Section 1.704-1(b)(2)(ii)(d); provided, that an allocation pursuant to this Section 5.1(c) shall be made only if and to the extent that such Partner would have a deficit Capital Account balance after all other allocations provided for in Article 5 have been tentatively made as if this Section 5.1(c) were not in this Agreement. This Section 5.1(c) is intended to constitute a “qualified income offset” under Section 1.704-1(b)(2)(ii)(d) of the Regulations and shall be interpreted consistently therewith.
(d)
Priority Allocation With Respect to Preferred Units
. Profits, and if necessary, items of Partnership gross income or gain for the current taxable year, shall be specially allocated to Partners that own Preferred Units in an amount equal to the excess, if any, of the cumulative distributions received by such Partner for or with respect to the current taxable year and all prior taxable years with respect to such Preferred Units (with a distribution made on the first business day after the end of a year being treated as made with respect to such year) (other than distributions that are treated as being in satisfaction of the Liquidation Preference for any Preferred Units held by such Partner or amounts paid in redemption of any Preferred Units, except to the extent that the Liquidation Preference or amount paid in redemption includes accrued and unpaid distributions) over the cumulative allocations of Partnership Profits, gross income and gain to such Partner under this Section 5.1(d) for all prior taxable years.
(e)
Allocations Between Transferor and Transferee
. If a Partner transfers any part or all of its Partnership Interest, the distributive shares of the various items of Profit and Loss allocable among the Partners during such fiscal year of the Partnership shall be allocated between the transferor and the transferee Partner either (i) as if the Partnership’s fiscal year had ended on the date of the transfer, or (ii) based on the number of days of such fiscal year that each was a Partner without regard to the results of Partnership activities in the respective portions of such fiscal year in which the transferor and the transferee were Partners. The General Partner, in its sole and absolute discretion, shall determine which method shall be used to allocate the distributive shares of the various items of Profit and Loss between the transferor and the transferee Partner.
(f)
Definition of Profit and Loss
. “Profit” and “Loss” and any items of income, gain, expense, or loss referred to in this Agreement shall be determined in accordance with federal income tax accounting principles, as modified by Regulations Section 1.704-1(b)(2)(iv), except that Profit and Loss shall not include items of income, gain and expense that are specially allocated pursuant to Sections 5.1(b), 5.1(c), or 5.1(d). All allocations of income, Profit, gain, Loss and expense (and all items contained therein) for federal income tax purposes shall be identical to all allocations of such items set forth in this Section 5.1, except as otherwise required by Section 704(c) of the Code and Regulations Section 1.704-1(b)(4). The General Partner shall have the authority to elect the method to be used by the Partnership for allocating items of income, gain, and expense as required by Section 704(c) of the Code including a method that may result in a Partner receiving a disproportionately larger share of the Partnership tax depreciation deductions, and such election shall be binding on all Partners.
(g)
Curative Allocations
. The allocations set forth in Sections 5.1(b) and 5.1(c) of this Agreement (the “Regulatory Allocations”) are intended to comply with certain requirements of the Regulations. The General Partner is authorized to offset all Regulatory Allocations either with other Regulatory Allocations or with special allocations of other items of Partnership income, gain, loss or deduction pursuant to this Section 5.1(g). Therefore, notwithstanding any other provision of this Section 5.1
(other than the Regulatory Allocations), the General Partner shall make such offsetting special allocations of Partnership income, gain, loss or deduction in whatever manner it deems appropriate so that, after such offsetting allocations are made, each Partner’s Capital Account is, to the extent possible, equal to the Capital Account balance such Partner would have had if the Regulatory Allocations were not part of this Agreement and all Partnership items were allocated pursuant to Sections 5.1(a), 5.1(d) and 5.1(e).
5.2
Distributions
.
(a)
Cash Available for Distribution
. The Partnership shall distribute cash on a quarterly (or, at the election of the General Partner, more frequent) basis, in an amount determined by the General Partner in its sole and absolute discretion, to the Partners who are Partners on the Partnership Record Date with respect to such quarter (or other distribution period) in the following order of priority:
(i)
First, to the holders of the Preferred Units, if any, in such amounts as is required for the Partnership to pay all distributions and any other amounts with respect to such Preferred Units accumulated, due or payable in accordance with the instruments designating such Preferred Units through the last day of such quarter or other distribution period (such distributions shall be made to such Partners in such order of priority and with such preferences as have been established with respect to such Preferred Units as of the last day of such quarter or other distribution period); and
(ii)
Then, to the holders of the Common Units, including the General Partner, in amounts proportionate to the aggregate Net Asset Value of the Partnership Units held by the respective Partners on the Partnership Record Date, except that the amount distributed per Partnership Unit of any Class may differ from the amount per Partnership Unit of another Class on account of differences in Class-specific expense allocations with respect to REIT Shares as described in the Prospectus or for other reasons as determined by the Board of Directors of the General Partner. Any such differences shall correspond to differences in the amount of distributions per REIT Share for REIT Shares of different Classes, with the same adjustments being made to the amount of distributions per Partnership Unit for Partnership Units of a particular Class as are made to the distributions per REIT Share by the General Partner with respect to REIT Shares having the same Class designation.
Provided, however, that if a new or existing Partner acquires an additional Partnership Interest in exchange for a Capital Contribution on any date other than the next day after a Partnership Record Date, the cash distribution attributable to such additional Partnership Interest relating to the Partnership Record Date next following the issuance of such additional Partnership Interest (or relating to the Partnership Record Date if such Partnership Interest was acquired on a Partnership Record Date) shall be reduced in the proportion to (i) the number of days that such additional Partnership Interest is held by such Partner bears to (ii) the number of days between such Partnership Record Date (including such Partnership Record Date) and the immediately preceding Partnership Record Date.
(b)
Withholding; Partnership Loans
. Notwithstanding any other provision of this Agreement, the General Partner is authorized to take any action that it determines to be necessary or appropriate to cause the Partnership to comply with any withholding requirements established under the Code or any other federal, state or local law including, without limitation, pursuant to Sections 1441, 1442, 1445 and 1446 of the Code. To the extent that the Partnership is required to withhold and pay over to any taxing authority any amount resulting from the allocation or distribution of income to any Partner or assignee (including by reason of Section 1446 of the Code), either (i) if the actual amount to be distributed to the
Partner equals or exceeds the amount required to be withheld by the Partnership, the amount withheld shall be treated as a distribution of cash in the amount of such withholding to such Partner, or (ii) if the actual amount to be distributed to the Partner is less than the amount required to be withheld by the Partnership, the excess of the amount required to be withheld over the actual amount to be distributed shall be treated as a loan (a “Partnership Loan”) from the Partnership to the Partner on the day the Partnership pays over such amount to a taxing authority. A Partnership Loan shall be repaid through withholding by the Partnership with respect to subsequent distributions to the applicable Partner or assignee. In the event that a Limited Partner (a “Defaulting Limited Partner”) fails to pay any amount owed to the Partnership with respect to the Partnership Loan within 15 days after demand for payment thereof is made by the Partnership on the Limited Partner, the General Partner, in its sole and absolute discretion, may elect to make the payment to the Partnership on behalf of such Defaulting Limited Partner. In such event, on the date of payment, the General Partner shall be deemed to have extended a loan (a “General Partner Loan”) to the Defaulting Limited Partner in the amount of the payment made by the General Partner and shall succeed to all rights and remedies of the Partnership against the Defaulting Limited Partner as to that amount. Without limitation, the General Partner shall have the right to receive any distributions that otherwise would be made by the Partnership to the Defaulting Limited Partner until such time as the General Partner Loan has been paid in full, and any such distributions so received by the General Partner shall be treated as having been received by the Defaulting Limited Partner and immediately paid to the General Partner.
Any amounts treated as a Partnership Loan or a General Partner Loan pursuant to this Section 5.2(b) shall bear interest at the lesser of (i) the base rate on corporate loans at large United States money center commercial banks, as published from time to time in The Wall Street Journal, or (ii) the maximum lawful rate of interest on such obligation, such interest to accrue from the date the Partnership or the General Partner, as applicable, is deemed to extend the loan until such loan is repaid in full.
(c)
Limitation on Distributions
. In no event may a Partner receive a distribution of cash with respect to a Partnership Unit if such Partner is entitled to receive a cash distribution as the holder of record of a REIT Share for which all or part of such Partnership Unit has been or will be exchanged.
5.3
REIT Distribution Requirements
. The General Partner shall use its commercially reasonable efforts to cause the Partnership to distribute amounts sufficient to enable the General Partner to pay stockholder dividends that will allow the General Partner to (i) meet its distribution requirement for qualification as a REIT as set forth in Section 857 of the Code and (ii) avoid any federal income or excise tax liability imposed by the Code.
5.4
No Right to Distributions In Kind
. No Partner shall be entitled to demand property other than cash in connection with any distributions by the Partnership.
5.5
Limitations of Return of Capital Contributions
. Notwithstanding any of the provisions of this Article 5, no Partner shall have the right to receive and the General Partner shall not have the right to make, a distribution that includes a return of all or part of a Partner’s Capital Contributions, unless after giving effect to the return of a Capital Contribution, the sum of all Partnership liabilities, other than the liabilities to a Partner for the return of his Capital Contribution, does not exceed the fair market value of the Partnership’s assets.
5.6
Distributions Upon Liquidation
. Upon liquidation of the Partnership, after payment of, or adequate provision for, debts and obligations of the Partnership, including any Partner loans or preferred
returns owed to holder of any Preferred Units, any remaining assets of the Partnership shall be distributed among the holders of Class A Units, Class AA Units, Class AAA Units, Class D Units, Class E Units, Class I Units, Class S Units, and Class T Units ratably in proportion to the respective Net Asset Value per Unit for each Class until the Net Asset Value per Unit for each Unit has been paid. For purposes of the preceding sentence, the Capital Account of each Partner shall be determined after all adjustments have been made in accordance with Sections 4.5, 5.1 and 5.2 resulting from Partnership operations and from all sales and dispositions of all or any part of the Partnership’s assets. To the extent deemed advisable by the General Partner, appropriate arrangements (including the use of a liquidating trust) may be made to assure that adequate funds are available to pay any contingent debts or obligations.
5.7
Substantial Economic Effect
. It is the intent of the Partners that the allocations of Profit and Loss under this Agreement have substantial economic effect (or be consistent with the Partners’ interests in the Partnership in the case of the allocation of losses attributable to nonrecourse debt) within the meaning of Section 704(b) of the Code as interpreted by the Regulations promulgated pursuant thereto. Article 5 and other relevant provisions of this Agreement shall be interpreted in a manner consistent with such intent.
ARTICLE 6
RIGHTS, OBLIGATIONS AND
POWERS OF THE GENERAL PARTNER
6.1
Management of the Partnership
.
(a)
Except as otherwise expressly provided in this Agreement, the General Partner shall have full, complete and exclusive discretion to manage and control the business of the Partnership for the purposes herein stated, and shall make all decisions affecting the business and assets of the Partnership. Subject to the restrictions specifically contained in this Agreement, the powers of the General Partner shall include, without limitation, the authority to take the following actions on behalf of the Partnership:
(i)
to acquire, purchase, own, operate, lease and dispose of (other than in a “prohibited transaction” within the meaning of Section 857(b)(6)(B)(iii) of the Code) any real property and any other property or assets including, but not limited to notes and mortgages, that the General Partner determines are necessary or appropriate or in the best interests of the business of the Partnership;
(ii)
to construct buildings and make other improvements on the Properties owned or leased by the Partnership;
(iii)
to authorize, issue, sell, redeem or otherwise purchase any Partnership Interests or any securities (including secured and unsecured debt obligations of the Partnership, debt obligations of the Partnership convertible into any class or series of Partnership Interests, or options, rights, warrants or appreciation rights relating to any Partnership Interests) of the Partnership;
(iv)
to borrow or lend money for the Partnership, issue or receive evidences of indebtedness in connection therewith, refinance, increase the amount of, modify, amend or change the terms of, or extend the time for the payment of, any such indebtedness, and secure such indebtedness by mortgage, deed of trust, pledge or other lien on the Partnership’s assets;
(v)
to pay, either directly or by reimbursement, for all Administrative Expenses to third parties or to the General Partner or its Affiliates as set forth in this Agreement;
(vi)
to guarantee or become a co-maker of indebtedness of the General Partner or any Subsidiary thereof, refinance, increase the amount of, modify, amend or change the terms of, or extend the time for the payment of, any such guarantee or indebtedness, and secure such guarantee or indebtedness by mortgage, deed of trust, pledge or other lien on the Partnership’s assets;
(vii)
to use assets of the Partnership (including, without limitation, cash on hand) for any purpose consistent with this Agreement, including, without limitation, payment, either directly or by reimbursement, of all Administrative Expenses of the General Partner, the Partnership or any Subsidiary of either, to third parties or to the General Partner as set forth in this Agreement;
(viii)
to lease all or any portion of any of the Partnership’s assets, whether or not the terms of such leases extend beyond the termination date of the Partnership and whether or not any portion of the Partnership’s assets so leased are to be occupied by the lessee, or, in turn, subleased in whole or in part to others, for such consideration and on such terms as the General Partner may determine;
(ix)
to prosecute, defend, arbitrate, or compromise any and all claims or liabilities in favor of or against the Partnership, on such terms and in such manner as the General Partner may reasonably determine, and similarly to prosecute, settle or defend litigation with respect to the Partners, the Partnership, or the Partnership’s assets;
(x)
to file applications, communicate, and otherwise deal with any and all governmental agencies having jurisdiction over, or in any way affecting, the Partnership’s assets or any other aspect of the Partnership business;
(xi)
to make or revoke any election permitted or required of the Partnership by any taxing authority;
(xii)
to maintain such insurance coverage for public liability, fire and casualty, and any and all other insurance for the protection of the Partnership, for the conservation of Partnership assets, or for any other purpose convenient or beneficial to the Partnership, in such amounts and such types, as it shall determine from time to time;
(xiii)
to determine whether or not to apply any insurance proceeds for any Property to the restoration of such Property or to distribute the same;
(xiv)
to establish one or more divisions of the Partnership, to hire and dismiss employees of the Partnership or any division of the Partnership, and to retain legal counsel, accountants, consultants, real estate brokers, and such other persons, as the General Partner may deem necessary or appropriate in connection with the Partnership business and to pay therefor such reasonable remuneration as the General Partner may deem reasonable and proper;
(xv)
to retain other services of any kind or nature in connection with the Partnership business, and to pay therefor such remuneration as the General Partner may deem reasonable and proper;
(xvi)
to negotiate and conclude agreements on behalf of the Partnership with respect to any of the rights, powers and authority conferred upon the General Partner;
(xvii)
to maintain accurate accounting records and to file promptly all federal, state and local income tax returns on behalf of the Partnership;
(xviii)
to distribute Partnership cash or other Partnership assets in accordance with this Agreement;
(xix)
to form or acquire an interest in, and contribute property to, any further limited or general partnerships, limited liability companies, joint ventures or other relationships that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, its Subsidiaries and any other Person in which it has an equity interest from time to time);
(xx)
to establish Partnership reserves for working capital, capital expenditures, contingent liabilities, or any other valid Partnership purpose;
(xxi)
to merge, consolidate or combine the Partnership with or into another Person;
(xxii)
to do any and all acts and things necessary or prudent to ensure that the Partnership will not be classified as a “publicly traded partnership” for purposes of Section 7704 of the Code; and
(xxiii)
to take such other action, execute, acknowledge, swear to or deliver such other documents and instruments, and perform any and all other acts that the General Partner deems necessary or appropriate for the formation, continuation and conduct of the business and affairs of the Partnership (including, without limitation, all actions consistent with allowing the General Partner at all times to qualify as a REIT unless the General Partner voluntarily terminates its REIT status) and to possess and enjoy all of the rights and powers of a general partner as provided by the Act.
(b)
Except as otherwise provided herein, to the extent the duties of the General Partner require expenditures of funds to be paid to third parties, the General Partner shall not have any obligations hereunder except to the extent that Partnership funds are reasonably available to it for the performance of such duties, and nothing herein contained shall be deemed to authorize or require the General Partner, in its capacity as such, to expend its individual funds for payment to third parties or to undertake any individual liability or obligation on behalf of the Partnership.
6.2
Delegation of Authority
. The General Partner may delegate any or all of its powers, rights and obligations hereunder, and may appoint, employ, contract or otherwise deal with any Person for the transaction of the business of the Partnership, which Person may, under supervision of the General Partner, perform any acts or services for the Partnership as the General Partner may approve.
6.3
Indemnification and Exculpation of Indemnitees
.
(a)
The Partnership shall indemnify an Indemnitee from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including reasonable legal fees and expenses), judgments, fines, settlements, and other amounts arising from any and all claims, demands, actions, suits or
proceedings, civil, criminal, administrative or investigative, that relate to the operations of the Partnership as set forth in this Agreement in which any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise.
Any indemnification pursuant to this Section 6.3 shall be made only out of the assets of the Partnership.
(b)
The indemnification provided by this Section 6.3 shall be in addition to any other rights to which an Indemnitee or any other Person may be entitled under any agreement, pursuant to any vote of the Partners, as a matter of law or otherwise, and shall continue as to an Indemnitee who has ceased to serve in such capacity.
(c)
The Partnership may purchase and maintain insurance, on behalf of the Indemnitees and such other Persons as the General Partner shall determine, against any liability that may be asserted against or expenses that may be incurred by such Person in connection with the Partnership’s activities, regardless of whether the Partnership would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(d)
For purposes of this Section 6.3, the Partnership shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Partnership also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute fines within the meaning of this Section 6.3; and actions taken or omitted by the Indemnitee with respect to an employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is not opposed to the best interests of the Partnership.
(e)
In no event may an Indemnitee subject the Limited Partners to personal liability by reason of the indemnification provisions set forth in this Agreement.
(f)
An Indemnitee shall not be denied indemnification in whole or in part under this Section 6.3 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(g)
The provisions of this Section 6.3 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(h)
Neither the amendment nor repeal of this Section 6.3, nor the adoption or amendment of any other provision of the Agreement inconsistent with Section 6.3, shall apply to or affect in any respect the applicability with respect to any act or failure to act which occurred prior to such amendment, repeal or adoption.
6.4
Liability of the General Partner
.
(a)
Notwithstanding anything to the contrary set forth in this Agreement, the General Partner shall not be liable for monetary damages to the Partnership or any Partners for losses sustained or liabilities incurred as a result of errors in judgment or of any act or omission if the General Partner acted in
good faith. The General Partner shall not be in breach of any duty that the General Partner may owe to the Limited Partners or the Partnership or any other Persons under this Agreement or of any duty stated or implied by law or equity provided the General Partner, acting in good faith, abides by the terms of this Agreement.
(b)
The Limited Partners expressly acknowledge that the General Partner is acting on behalf of the Partnership, itself and its stockholders collectively, that the General Partner is under no obligation to consider the separate interests of the Limited Partners (including, without limitation, the tax consequences to Limited Partners or the tax consequences of some, but not all, of the Limited Partners) in deciding whether to cause the Partnership to take (or decline to take) any actions. In the event of a conflict between the interests of its stockholders on one hand and the Limited Partners on the other, the General Partner shall endeavor in good faith to resolve the conflict in a manner not adverse to either its stockholders or the Limited Partners; provided, however, that for so long as the General Partner directly owns a controlling interest in the Partnership, any such conflict that the General Partner, in its sole and absolute discretion, determines cannot be resolved in a manner not adverse to either its stockholders or the Limited Partner shall be resolved in favor of the stockholders. The General Partner shall not be liable for monetary damages for losses sustained, liabilities incurred, or benefits not derived by Limited Partners in connection with such decisions, provided that the General Partner has acted in good faith.
(c)
Subject to its obligations and duties as General Partner set forth in Section 6.1 hereof, the General Partner may exercise any of the powers granted to it under this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its agents. The General Partner shall not be responsible for any misconduct or negligence on the part of any such agent appointed by it in good faith.
(d)
Notwithstanding any other provisions of this Agreement or the Act, any action of the General Partner on behalf of the Partnership or any decision of the General Partner to refrain from acting on behalf of the Partnership, undertaken in the good faith belief that such action or omission is necessary or advisable in order (i) to protect the ability of the General Partner to continue to qualify as a REIT or (ii) to prevent the General Partner from incurring any taxes under Section 857, Section 4981, or any other provision of the Code, is expressly authorized under this Agreement and is deemed approved by all of the Limited Partners.
(e)
Any amendment, modification or repeal of this Section 6.4 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the General Partner’s liability to the Partnership and the Limited Partners under this Section 6.4 as in effect immediately prior to such amendment, modification or repeal with respect to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when claims relating to such matters may arise or be asserted.
6.5
Reimbursement of General Partner
.
(a)
Except as provided in this Section 6.5 and elsewhere in this Agreement (including the provisions of Articles 5 and 6 regarding distributions, payments, and allocations to which it may be entitled), the General Partner shall not be compensated for its services as general partner of the Partnership.
(b)
The General Partner shall be reimbursed on a monthly basis, or such other basis as the General Partner may determine in its sole and absolute discretion, for all Administrative Expenses.
6.6
Outside Activities
. Subject to the Articles of Incorporation and any agreements entered into by the General Partner or its Affiliates with the Partnership or a Subsidiary, any officer, director, employee, agent, trustee, Affiliate or stockholder of the General Partner shall be entitled to and may have business interests and engage in business activities in addition to those relating to the Partnership, including business interests and activities substantially similar or identical to those of the Partnership. Neither the Partnership nor any of the Limited Partners shall have any rights by virtue of this Agreement in any such business ventures, interest or activities. None of the Limited Partners nor any other Person shall have any rights by virtue of this Agreement or the partnership relationship established hereby in any such business ventures, interests or activities, and the General Partner shall have no obligation pursuant to this Agreement to offer any interest in any such business ventures, interests and activities to the Partnership or any Limited Partner, even if such opportunity is of a character which, if presented to the Partnership or any Limited Partner, could be taken by such Person.
6.7
Employment or Retention of Affiliates
.
(a)
Any Affiliate of the General Partner may be employed or retained by the Partnership and may otherwise deal with the Partnership (whether as a buyer, lessor, lessee, manager, furnisher of goods or services, broker, agent, lender or otherwise) and may receive from the Partnership any compensation, price, or other payment therefor which the General Partner determines to be fair and reasonable.
(b)
The Partnership may lend or contribute to its Subsidiaries or other Persons in which it has an equity investment, and such Persons may borrow funds from the Partnership, on terms and conditions established in the sole and absolute discretion of the General Partner. The foregoing authority shall not create any right or benefit in favor of any Subsidiary or any other Person.
(c)
The Partnership may transfer assets to joint ventures, other partnerships, corporations or other business entities in which it is or thereby becomes a participant upon such terms and subject to such conditions as the General Partner deems are consistent with this Agreement and applicable law.
(d)
Except as expressly permitted by this Agreement, neither the General Partner nor any of its Affiliates shall sell, transfer or convey any property to, or purchase any property from, the Partnership, directly or indirectly, except pursuant to transactions that are on terms that are fair and reasonable to the Partnership.
6.8
General Partner Participation
. The General Partner agrees that all business activities of the General Partner, including activities pertaining to the acquisition, development or ownership of Properties, shall be conducted through the Partnership or one or more Subsidiary Partnerships; provided, however, that the General Partner is allowed to make a direct acquisition, but if and only if, such acquisition is made in connection with the issuance of Additional Securities, which direct acquisition and issuance have been approved and determined to be in the best interests of the General Partner and the Partnership by a majority of the Independent Directors.
6.9
Title to Partnership Assets
. Title to Partnership assets, whether real, personal or mixed and whether tangible or intangible, shall be deemed to be owned by the Partnership as an entity, and no Partner, individually or collectively, shall have any ownership interest in such Partnership assets or any portion thereof. Title to any or all of the Partnership assets may be held in the name of the Partnership, the General
Partner or one or more nominees, as the General Partner may determine, including Affiliates of the General Partner. The General Partner hereby declares and warrants that any Partnership assets for which legal title is held in the name of the General Partner or any nominee or Affiliate of the General Partner shall be held by the General Partner for the use and benefit of the Partnership in accordance with the provisions of this Agreement; provided, however, that the General Partner shall use its best efforts to cause beneficial and record title to such assets to be vested in the Partnership as soon as reasonably practicable. All Partnership assets shall be recorded as the property of the Partnership in its books and records, irrespective of the name in which legal title to such Partnership assets is held.
6.10
Miscellaneous
. In the event the General Partner redeems any REIT Shares (other than REIT Shares redeemed in accordance with the share redemption program of the General Partner through proceeds received from the General Partner’s distribution reinvestment plan), then the General Partner shall cause the Partnership to purchase from the General Partner a number of Partnership Units having the same Class designation as the redeemed REIT Shares on the same terms that the General Partner redeemed such REIT Shares (including any applicable discount to NAV). Moreover, if the General Partner makes a cash tender offer or other offer to acquire REIT Shares, then the General Partner shall cause the Partnership to make a corresponding offer to the General Partner to acquire an equal number of Partnership Units held by the General Partner having the same Class designation as the REIT Shares proposed to be acquired. In the event any REIT Shares are exchanged by the General Partner pursuant to such offer, the Partnership shall redeem an equivalent number of the General Partner’s Partnership Units having the same Class designation as the REIT Shares being exchanged on the same terms that the General Partner exchanged such REIT Shares.
ARTICLE 7
CHANGES IN GENERAL PARTNER
7.1
Transfer of the General Partner's Partnership Interest
.
(a)
The General Partner shall not transfer all or any portion of its General Partnership Interest or withdraw as General Partner except as provided in or in connection with a transaction contemplated by Section 7.1(b), (c) or (d).
(b)
Except as otherwise provided in Section 7.1(c) or (d) hereof, the General Partner shall not engage in any merger, consolidation or other combination with or into another Person or sale of all or substantially all of its assets, (other than in connection with a change in the General Partner’s state of incorporation or organizational form) in each case which results in a change of control of the General Partner (a “Transaction”), unless:
(i)
the approval of the holders of a majority of the Common Units is obtained;
(ii)
as a result of such Transaction all Limited Partners will receive for each Common Unit of each Class an amount of cash, securities, or other property equal to the greatest amount of cash, securities or other property paid in the Transaction to a holder of one REIT Share having the same Class designation as that Common Unit in consideration of such REIT Share, provided that if, in connection with the Transaction, a purchase, tender or exchange offer (“Offer”) shall have been made to and accepted by the holders of more than 50% of the outstanding REIT Shares, each holder of Common Units shall be given the option to exchange its Common Units for the greatest amount of cash, securities, or other property which a Limited Partner would have received had it (A) exercised its Exchange Right and (B) sold, tendered
or exchanged pursuant to the Offer the REIT Shares received upon exercise of the Exchange Right immediately prior to the expiration of the Offer; or
(iii)
the General Partner is the surviving entity in the Transaction and either (A) the holders of REIT Shares do not receive cash, securities, or other property in the Transaction or (B) all Limited Partners (other than the General Partner or any Subsidiary) receive an amount of cash, securities, or other property (expressed as an amount per REIT Share) that is no less than the greatest amount of cash, securities, or other property (expressed as an amount per REIT Share) received in the Transaction by any holder of REIT Shares having the same Class designation as the Common Units being exchanged.
(c)
Notwithstanding Section 7.1(b), the General Partner may merge with or into or consolidate with another entity if immediately after such merger or consolidation (i) substantially all of the assets of the successor or surviving entity (the “Surviving General Partner”), other than Partnership Units held by the General Partner, are contributed, directly or indirectly, to the Partnership as a Capital Contribution in exchange for Partnership Units with a fair market value equal to the value of the assets so contributed as determined by the Surviving General Partner in good faith and (ii) the Surviving General Partner expressly agrees to assume all obligations of the General Partner, as appropriate, hereunder. Upon such contribution and assumption, the Surviving General Partner shall have the right and duty to amend this Agreement as set forth in this Section 7.1(c). The Surviving General Partner shall in good faith arrive at a new method for the calculation of the Cash Amount and the REIT Shares Amount after any such merger or consolidation so as to approximate the existing method for such calculation as closely as reasonably possible. Such calculation shall take into account, among other things, the kind and amount of securities, cash and other property that was receivable upon such merger or consolidation by a holder of REIT Shares or options, warrants or other rights relating thereto, and to which a holder of Partnership Units could have acquired had such Partnership Units been exchanged immediately prior to such merger or consolidation. The Surviving General Partner also shall in good faith modify the definition of REIT Shares and make such amendments to Section 8.5 hereof so as to approximate the existing rights and obligations set forth in Section 8.5 as closely as reasonably possible. The above provisions of this Section 7.1(c) shall similarly apply to successive mergers or consolidations permitted hereunder.
In respect of any transaction described in the preceding paragraph, the General Partner is required to use its commercially reasonable efforts to structure such transaction to avoid causing the Limited Partners to recognize a gain for federal income tax purposes by virtue of the occurrence of or their participation in such transaction, provided such efforts are consistent with the exercise of the fiduciary duties of the board of directors of the General Partner to the Stockholders under applicable law.
(d)
Notwithstanding Section 7.1(b),
(i)
a General Partner may transfer all or any portion of its General Partnership Interest to (A) a wholly-owned Subsidiary of such General Partner or (B) the owner of all of the ownership interests of such General Partner, and following a transfer of all of its General Partnership Interest, may withdraw as General Partner; and
(ii)
the General Partner may engage in Transactions not required by law or by the rules of any National Securities Exchange on which the REIT Shares are listed to be submitted to the vote of the holders of the REIT Shares.
7.2
Admission of a Substitute or Additional General Partner
. A Person shall be admitted as a substitute or additional General Partner of the Partnership only if the following terms and conditions are satisfied:
(a)
the Person to be admitted as a substitute or additional General Partner shall have accepted and agreed to be bound by all the terms and provisions of this Agreement by executing a counterpart thereof and such other documents or instruments as may be required or appropriate in order to effect the admission of such Person as a General Partner, and a certificate evidencing the admission of such Person as a General Partner shall have been filed for recordation and all other actions required by Section 2.5 hereof in connection with such admission shall have been performed;
(b)
if the Person to be admitted as a substitute or additional General Partner is a corporation or a partnership it shall have provided the Partnership with evidence satisfactory to counsel for the Partnership of such Person’s authority to become a General Partner and to be bound by the terms and provisions of this Agreement; and
(c)
counsel for the Partnership shall have rendered an opinion (relying on such opinions from other counsel and the state or any other jurisdiction as may be necessary) that the admission of the person to be admitted as a substitute or additional General Partner is in conformity with the Act, that none of the actions taken in connection with the admission of such Person as a substitute or additional General Partner will cause (i) the Partnership to be classified other than as a partnership for federal income tax purposes, or (ii) the loss of any Limited Partner’s limited liability.
7.3
Effect of Bankruptcy, Withdrawal, Death or Dissolution of a General Partner
.
(a)
Upon the occurrence of an Event of Bankruptcy as to a General Partner (and its removal pursuant to Section 7.4(a) hereof) or the death, withdrawal, removal or dissolution of a General Partner (except that, if a General Partner is on the date of such occurrence a partnership, the withdrawal, death, dissolution, Event of Bankruptcy as to, or removal of a partner in, such partnership shall be deemed not to be a dissolution of such General Partner if the business of such General Partner is continued by the remaining partner or partners), the Partnership shall be dissolved and terminated unless the Partnership is continued pursuant to Section 7.3(b) hereof. The merger of the General Partner with or into any entity that is admitted as a substitute or successor General Partner pursuant to Section 7.2 hereof shall not be deemed to be the withdrawal, dissolution or removal of the General Partner.
(b)
Following the occurrence of an Event of Bankruptcy as to a General Partner (and its removal pursuant to Section 7.4(a) hereof) or the death, withdrawal, removal or dissolution of a General Partner (except that, if a General Partner is on the date of such occurrence a partnership, the withdrawal, death, dissolution, Event of Bankruptcy as to, or removal of a partner in, such partnership shall be deemed not to be a dissolution of such General Partner if the business of such General Partner is continued by the remaining partner or partners), the Limited Partners, within 90 days after such occurrence, may elect to continue the business of the Partnership for the balance of the term specified in Section 2.4 hereof by selecting, subject to Section 7.2 hereof and any other provisions of this Agreement, a substitute General Partner by consent of a majority in interest of the Limited Partners. If the Limited Partners elect to continue the business of the Partnership and admit a substitute General Partner, the relationship with the Partners and of any Person who has acquired an interest of a Partner in the Partnership shall be governed by this Agreement.
7.4
Removal of a General Partner
.
(a)
Upon the occurrence of an Event of Bankruptcy as to, or the dissolution of, a General Partner, such General Partner shall be deemed to be removed automatically; provided, however, that if a General Partner is on the date of such occurrence a partnership, the withdrawal, death, dissolution, Event of Bankruptcy as to or removal of a partner in such partnership shall be deemed not to be a dissolution of the General Partner if the business of such General Partner is continued by the remaining partner or partners. The Limited Partners may not remove the General Partner, with or without cause.
(b)
If a General Partner has been removed pursuant to this Section 7.4 and the Partnership is continued pursuant to Section 7.3 hereof, such General Partner shall promptly transfer and assign its General Partnership Interest in the Partnership to the substitute General Partner approved by a majority in interest of the Limited Partners in accordance with Section 7.3(b) hereof and otherwise admitted to the Partnership in accordance with Section 7.2 hereof. At the time of assignment, the removed General Partner shall be entitled to receive from the substitute General Partner the fair market value of the General Partnership Interest of such removed General Partner as reduced by any damages caused to the Partnership by such General Partner. Such fair market value shall be determined by an appraiser mutually agreed upon by the General Partner and a majority in interest of the Limited Partners within 10 days following the removal of the General Partner. In the event that the parties are unable to agree upon an appraiser, the removed General Partner and a majority in interest of the Limited Partners each shall select an appraiser. Each such appraiser shall complete an appraisal of the fair market value of the removed General Partner’s General Partnership Interest within 30 days of the General Partner’s removal, and the fair market value of the removed General Partner’s General Partnership Interest shall be the average of the two appraisals; provided, however, that if the higher appraisal exceeds the lower appraisal by more than 20% of the amount of the lower appraisal, the two appraisers, no later than 40 days after the removal of the General Partner, shall select a third appraiser who shall complete an appraisal of the fair market value of the removed General Partner’s General Partnership Interest no later than 60 days after the removal of the General Partner. In such case, the fair market value of the removed General Partner’s General Partnership Interest shall be the average of the two appraisals closest in value.
(c)
The General Partnership Interest of a removed General Partner, during the time after default until transfer under Section 7.4(b), shall be converted to that of a special Limited Partner; provided, however, such removed General Partner shall not have any rights to participate in the management and affairs of the Partnership, and shall not be entitled to any portion of the income, expense, profit, gain or loss allocations or cash distributions allocable or payable, as the case may be, to the Limited Partners. Instead, such removed General Partner shall receive and be entitled only to retain distributions or allocations of such items that it would have been entitled to receive in its capacity as General Partner, until the transfer is effective pursuant to Section 7.4(b).
(d)
All Partners shall have given and hereby do give such consents, shall take such actions and shall execute such documents as shall be legally necessary and sufficient to effect all the foregoing provisions of this Section.
ARTICLE 8
RIGHTS AND OBLIGATIONS OF THE LIMITED PARTNERS
8.1
Management of the Partnership
. The Limited Partners shall not participate in the management or control of Partnership business nor shall they transact any business for the Partnership, nor shall they have the power to sign for or bind the Partnership, such powers being vested solely and exclusively in the General Partner.
8.2
Power of Attorney
. Each Limited Partner hereby irrevocably appoints the General Partner its true and lawful attorney-in-fact, who may act for each Limited Partner and in its name, place and stead, and for its use and benefit, to sign, acknowledge, swear to, deliver, file or record, at the appropriate public offices, any and all documents, certificates, and instruments as may be deemed necessary or desirable by the General Partner to carry out fully the provisions of this Agreement and the Act in accordance with their terms, which power of attorney is coupled with an interest and shall survive the death, dissolution or legal incapacity of the Limited Partner, or the transfer by the Limited Partner of any part or all of its Partnership Interest.
8.3
Limitation on Liability of Limited Partners
. No Limited Partner shall be liable for any debts, liabilities, contracts or obligations of the Partnership. A Limited Partner shall be liable to the Partnership only to make payments of its Capital Contribution, if any, as and when due hereunder. After its Capital Contribution is fully paid, no Limited Partner shall, except as otherwise required by the Act, be required to make any further Capital Contributions or other payments or lend any funds to the Partnership.
8.4
Ownership by Limited Partner of Corporate General Partner or Affiliate
. No Limited Partner shall at any time, either directly or indirectly, own any stock or other interest in the General Partner or in any Affiliate thereof, if such ownership by itself or in conjunction with other stock or other interests owned by other Limited Partners would, in the opinion of counsel for the Partnership, jeopardize the classification of the Partnership as a partnership for federal tax purposes. The General Partner shall be entitled to make such reasonable inquiry of the Limited Partners as is required to establish compliance by the Limited Partners with the provisions of this Section.
8.5
Exchange Right
.
(a)
Subject to Sections 8.5(b), 8.5(c), 8.5(d), and 8.5(e) and the provisions of any agreements between the Partnership and one or more holders of Common Units with respect to Common Units held by them, each holder of Common Units shall have the right (the “Exchange Right”) to require the Partnership to redeem on a Specified Exchange Date all or a portion of the Common Units held by such Limited Partner at an exchange price equal to and in the form of the Cash Amount to be paid by the Partnership, provided that such Common Units shall have been outstanding for at least one year. The Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to the Partnership (with a copy to the General Partner) by the Limited Partner who is exercising the Exchange Right (the “Exchanging Partner”); provided, however, that the Partnership shall not be obligated to satisfy such Exchange Right if the General Partner elects to purchase the Common Units subject to the Notice of Exchange pursuant to Section 8.5(b); and provided, further, that no holder of Common Units may deliver more than two Notices of Exchange during each calendar year. A Limited Partner may not exercise the Exchange Right for less than 1,000 Common Units or, if such Limited Partner holds less than 1,000 Common Units, all of the Common Units held by such Partner. The Exchanging Partner shall have no right, with respect to any Common Units so exchanged,
to receive any distribution paid with respect to Common Units if the record date for such distribution is on or after the Specified Exchange Date.
(b)
Notwithstanding the provisions of Section 8.5(a), a Limited Partner that exercises the Exchange Right shall be deemed to have offered to sell the Common Units described in the Notice of Exchange to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Common Units by paying to the Exchanging Partner either the Cash Amount or the REIT Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the General Partner shall acquire the Common Units offered for exchange by the Exchanging Partner and shall be treated for all purposes of this Agreement as the owner of such Common Units. If the General Partner shall elect to exercise its right to purchase Common Units under this Section 8.5(b) with respect to a Notice of Exchange, it shall so notify the Exchanging Partner within five business days after the receipt by the General Partner of such Notice of Exchange. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to purchase Common Units from the Exchanging Partner pursuant to this Section 8.5(b), the General Partner shall have no obligation to the Exchanging Partner or the Partnership with respect to the Exchanging Partner’s exercise of the Exchange Right. In the event the General Partner shall exercise its right to purchase Common Units with respect to the exercise of an Exchange Right in the manner described in the first sentence of this Section 8.5(b), the Partnership shall have no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s exercise of such Exchange Right, and each of the Exchanging Partner, the Partnership, and the General Partner, as the case may be, shall treat the transaction between the General Partner, as the case may be, and the Exchanging Partner for federal income tax purposes as a sale of the Exchanging Partner’s Common Units to the General Partner, as the case may be. Each Exchanging Partner agrees to execute such documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Exchange Right.
(c)
Notwithstanding the provisions of Section 8.5(a) and 8.5(b), a Limited Partner shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.5(b) (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.5(b)) would (i) result in such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the Ownership Limit (as defined in the Articles of Incorporation and calculated in accordance therewith), except as provided in the Articles of Incorporation, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, or (iv) cause the General Partner to own, directly or constructively, 9.9% or more of the ownership interests in a tenant within the meaning of Section 856(d)(2)(B) of the Code. The General Partner, in its sole and absolute discretion, may waive the restriction on exchange set forth in this Section 8.5(c).
(d)
Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.5 shall be paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause the Specified Exchange Date to be delayed for up to an additional 180 days to the extent required for the General Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of exchanged Common Units hereunder to occur as quickly as reasonably possible.
(e)
Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under Section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “Restriction Notice”) to each of the Limited Partners, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such counsel, restrictions are necessary in order to avoid the Partnership being treated as a “publicly traded partnership” under Section 7704 of the Code.
(f)
Each Limited Partner covenants and agrees with the General Partner that all Common Units delivered for exchange shall be delivered to the Partnership or the General Partner, as the case may be, free and clear of all liens; and, notwithstanding anything contained herein to the contrary, neither the General Partner nor the Partnership shall be under any obligation to acquire Common Units which are or may be subject to any liens. Each Limited Partner further agrees that, if any state or local property transfer tax is payable as a result of the transfer of its Common Units to the Partnership or the General Partner, such Limited Partner shall assume and pay such transfer tax.
ARTICLE 9
TRANSFERS OF LIMITED PARTNERHSIP INTERESTS
9.1
Purchase for Investment
.
(a)
Each Limited Partner hereby represents and warrants to the General Partner and to the Partnership that the acquisition of its Partnership Interests is made as a principal for its account for investment purposes only and not with a view to the resale or distribution of such Partnership Interest.
(b)
Each Limited Partner agrees that it will not sell, assign or otherwise transfer its Partnership Interest or any fraction thereof, whether voluntarily or by operation of law or at judicial sale or otherwise, to any Person who does not make the representations and warranties to the General Partner set forth in Section 9.1(a) above and similarly agree not to sell, assign or transfer such Partnership Interest or fraction thereof to any Person who does not similarly represent, warrant and agree.
9.2
Restrictions on Transfer of Limited Partnership Interests
.
(a)
Subject to the provisions of Section 9.2(b), (c) and (d), no Limited Partner may offer, sell, assign, hypothecate, pledge or otherwise transfer all or any portion of its Limited Partnership Interest, or any of such Limited Partner’s economic rights as a Limited Partner, whether voluntarily or by operation of law or at judicial sale or otherwise (collectively, a “Transfer”) without the consent of the General Partner, which consent may be granted or withheld in its sole and absolute discretion. Any such purported transfer undertaken without such consent shall be considered to be null and void ab initio and shall not be given effect. The General Partner may require, as a condition of any Transfer to which it consents, that the transferor assume all costs incurred by the Partnership in connection therewith.
(b)
No Limited Partner may withdraw from the Partnership other than as a result of a permitted Transfer (i.e., a Transfer consented to as contemplated by clause (a) above or clause (c) below or a Transfer pursuant to Section 9.5 below) of all of its Partnership Units pursuant to this Article 9 or pursuant
to an exchange of all of its Common Units pursuant to Section 8.5. Upon the permitted Transfer or redemption of all of a Limited Partner’s Partnership Interest, such Limited Partner shall cease to be a Limited Partner.
(c)
Subject to Section 9.2(d), (e) and (f) below, a Limited Partner may Transfer, with the consent of the General Partner, all or a portion of its Partnership Units to (i) a parent or parent’s spouse, natural or adopted descendant or descendants, spouse of such descendant, or brother or sister, or a trust created by such Limited Partner for the benefit of such Limited Partner and/or any such Person(s), of which trust such Limited Partner or any such Person(s) is a trustee, (ii) a corporation controlled by a Person or Persons named in (i) above, or (iii) if the Limited Partner is an entity, its beneficial owners.
(d)
No Limited Partner may effect a Transfer of its Limited Partnership Interest, in whole or in part, if, in the opinion of legal counsel for the Partnership, such proposed Transfer would otherwise violate any applicable federal or state securities or blue sky law (including investment suitability standards).
(e)
No Transfer by a Limited Partner of its Partnership Units, in whole or in part, may be made to any Person if (i) in the opinion of legal counsel for the Partnership, the transfer would result in the Partnership’s being treated as an association taxable as a corporation (other than a qualified REIT subsidiary within the meaning of Section 856(i) of the Code), (ii) in the opinion of legal counsel for the Partnership, it would adversely affect the ability of the General Partner to continue to qualify as a REIT or subject the General Partner to any additional taxes under Section 857 or Section 4981 of the Code, or (iii) such transfer is effectuated through an “established securities market” or a “secondary market (or the substantial equivalent thereof)” within the meaning of Section 7704 of the Code.
(f)
No transfer of any Partnership Units may be made to a lender to the Partnership or any Person who is related (within the meaning of Regulations Section 1.752-4(b)) to any lender to the Partnership whose loan constitutes a nonrecourse liability (within the meaning of Regulations Section 1.752-1(a)(2)), without the consent of the General Partner, which may be withheld in its sole and absolute discretion, provided that as a condition to such consent the lender will be required to enter into an arrangement with the Partnership and the General Partner to exchange or redeem for the Cash Amount any Partnership Units in which a security interest is held simultaneously with the time at which such lender would be deemed to be a partner in the Partnership for purposes of allocating liabilities to such lender under Section 752 of the Code.
(g)
Any Transfer in contravention of any of the provisions of this Article 9 shall be void and ineffectual and shall not be binding upon, or recognized by, the Partnership.
(h)
Prior to the consummation of any Transfer under this Article 9, the transferor and/or the transferee shall deliver to the General Partner such opinions, certificates and other documents as the General Partner shall request in connection with such Transfer.
9.3
Admission of Substitute Limited Partner
.
(a)
Subject to the other provisions of this Article 9, an assignee of the Limited Partnership Interest of a Limited Partner (which shall be understood to include any purchaser, transferee, donee, or other recipient of any disposition of such Limited Partnership Interest) shall be deemed admitted as a Limited Partner of the Partnership only with the consent of the General Partner and upon the satisfactory completion of the following:
(i)
The assignee shall have accepted and agreed to be bound by the terms and provisions of this Agreement by executing a counterpart or an amendment thereof, including a revised
Exhibit A
, and such other documents or instruments as the General Partner may require in order to effect the admission of such Person as a Limited Partner.
(ii)
To the extent required, an amended Certificate evidencing the admission of such Person as a Limited Partner shall have been signed, acknowledged and filed for record in accordance with the Act.
(iii)
The assignee shall have delivered a letter containing the representation set forth in Section 9.1(a) hereof and the agreement set forth in Section 9.1(b) hereof.
(iv)
If the assignee is a corporation, partnership or trust, the assignee shall have provided the General Partner with evidence satisfactory to counsel for the Partnership of the assignee’s authority to become a Limited Partner under the terms and provisions of this Agreement.
(v)
The assignee shall have executed a power of attorney containing the terms and provisions set forth in Section 8.2 hereof.
(vi)
The assignee shall have paid all legal fees and other expenses of the Partnership and the General Partner and filing and publication costs in connection with its substitution as a Limited Partner.
(vii)
The assignee has obtained the prior written consent of the General Partner to its admission as a Substitute Limited Partner, which consent may be given or denied in the exercise of the General Partner’s sole and absolute discretion.
(b)
For the purpose of allocating Profits and Losses and distributing cash received by the Partnership, a Substitute Limited Partner shall be treated as having become, and appearing in the records of the Partnership as, a Partner upon the filing of the Certificate described in Section 9.3(a)(ii) hereof or, if no such filing is required, the later of the date specified in the transfer documents or the date on which the General Partner has received all necessary instruments of transfer and substitution.
(c)
The General Partner shall cooperate with the Person seeking to become a Substitute Limited Partner by preparing the documentation required by this Section and making all official filings and publications. The Partnership shall take all such action as promptly as practicable after the satisfaction of the conditions in this Article 9 to the admission of such Person as a Limited Partner of the Partnership.
9.4
Rights of Assignees of Partnership Interests
.
(a)
Subject to the provisions of Sections 9.1 and 9.2 hereof, except as required by operation of law, the Partnership shall not be obligated for any purposes whatsoever to recognize the assignment by any Limited Partner of its Partnership Interest until the Partnership has received notice thereof.
(b)
Any Person who is the assignee of all or any portion of a Limited Partner’s Limited Partnership Interest, but does not become a Substitute Limited Partner and desires to make a further assignment of such Limited Partnership Interest, shall be subject to all the provisions of this Article 9 to the
same extent and in the same manner as any Limited Partner desiring to make an assignment of its Limited Partnership Interest.
9.5
Effect of Bankruptcy, Death, Incompetence or Termination of a Limited Partner
. The occurrence of an Event of Bankruptcy as to a Limited Partner, the death of a Limited Partner or a final adjudication that a Limited Partner is incompetent (which term shall include, but not be limited to, insanity) shall not cause the termination or dissolution of the Partnership, and the business of the Partnership shall continue if an order for relief in a bankruptcy proceeding is entered against a Limited Partner, the trustee or receiver of his estate or, if he dies, his executor, administrator or trustee, or, if he is finally adjudicated incompetent, his committee, guardian or conservator, shall have the rights of such Limited Partner for the purpose of settling or managing his estate property and such power as the bankrupt, deceased or incompetent Limited Partner possessed to assign all or any part of his Partnership Interest and to join with the assignee in satisfying conditions precedent to the admission of the assignee as a Substitute Limited Partner.
9.6
Joint Ownership of Interests
. A Partnership Interest may be acquired by two individuals as joint tenants with right of survivorship, provided that such individuals either are married or are related and share the same home as tenants in common. The written consent or vote of both owners of any such jointly held Partnership Interest shall be required to constitute the action of the owners of such Partnership Interest; provided, however, that the written consent of only one joint owner will be required if the Partnership has been provided with evidence satisfactory to the counsel for the Partnership that the actions of a single joint owner can bind both owners under the applicable laws of the state of residence of such joint owners. Upon the death of one owner of a Partnership Interest held in a joint tenancy with a right of survivorship, the Partnership Interest shall become owned solely by the survivor as a Limited Partner and not as an assignee. The Partnership need not recognize the death of one of the owners of a jointly-held Partnership Interest until it shall have received notice of such death. Upon notice to the General Partner from either owner, the General Partner shall cause the Partnership Interest to be divided into two equal Partnership Interests, which shall thereafter be owned separately by each of the former owners.
ARTICLE 10
ADMISSION OF ADDITIONAL LIMITED PARTNERS
10.1
Admission of Additional Limited Partners
. No Person shall be admitted as an Additional Limited Partner without the consent of the General Partner, which consent shall be given or withheld in the General Partner's sole and absolute discretion. A Person who makes a Capital Contribution to the Partnership in accordance with this Agreement or who exercises an option to receive Partnership Units shall be admitted to the Partnership as an Additional Limited Partner only with the consent of the General Partner and only upon furnishing to the General Partner (i) evidence of acceptance in form satisfactory to the General Partner of all of the terms and conditions of this Agreement, including, without limitation, the power of attorney granted in Section 8.2 and (ii) such other documents or instruments as may be required in the discretion of the General Partner to effect such Person's admission as an Additional Limited Partner. The admission of any Person as an Additional Limited Partner shall become effective on the date upon which the name of such Person is recorded on the books and records of the Partnership, following the consent of the General Partner to such admission.
10.2
Allocations to Additional Limited Partners
. If any Additional Limited Partner is admitted to the Partnership on any day other than the first day of a Fiscal Year, then Net Income, Net Losses, each
item thereof and all other items allocable among Partners and assignees for such Fiscal Year shall be allocated among such Additional Limited Partner and all other Partners and assignees by taking into account their varying interests during the Fiscal Year in accordance with Section 706(d) of the Code, using the interim closing of the books method (unless the General Partner, in its sole and absolute discretion, elects to adopt a daily, weekly or monthly proration method, in which event Net Income, Net Losses, and each item thereof would be prorated based upon the applicable period selected by the General Partner). Solely for purposes of making such allocations, each of such items for the calendar month in which an admission of any Additional Limited Partner occurs shall be allocated among all the Partners and assignees including such Additional Limited Partner. All distributions of Available Cash with respect to which the Partnership Record Date is before the date of such admission shall be made solely to Partners and assignees other than the Additional Limited Partner, and all Distributions of Cash thereafter shall be made to all the Partners and assignees including such Additional Limited Partner.
10.3
Amendment of Agreement and Certificate of Limited Partnership
. For the admission to the Partnership of any Partner, the General Partner shall take all steps necessary and appropriate under the Act to amend the records of the Partnership and, if necessary, to prepare as soon as practical an amendment of this Agreement (including an amendment to the Partner Registry) and, if required by law, shall prepare and file an amendment to the Certificate of Limited Partnership and may for this purpose exercise the power of attorney granted pursuant to Section 8.2 hereof.
ARTICLE 11
BOOKS AND RECORDS; ACCOUNTING; TAX MATTERS
11.1
Books and Records
. At all times during the continuance of the Partnership, the Partners shall keep or cause to be kept at the Partnership’s specified office true and complete books of account in accordance with generally accepted accounting principles, including: (a) a current list of the full name and last known business address of each Partner, (b) a copy of the Certificate of Limited Partnership and all certificates of amendment thereto, (c) copies of the Partnership’s federal, state and local income tax returns and reports, (d) copies of this Agreement and amendments thereto and any financial statements of the Partnership for the three most recent years and (e) all documents and information required under the Act. Any Partner or its duly authorized representative, upon paying the costs of collection, duplication and mailing, shall be entitled to inspect or copy such records during ordinary business hours.
11.2
Custody of Partnership Funds; Bank Accounts
.
(a)
All funds of the Partnership not otherwise invested shall be deposited in one or more accounts maintained in such banking or brokerage institutions as the General Partner shall determine, and withdrawals shall be made only on such signature or signatures as the General Partner may, from time to time, determine.
(b)
All deposits and other funds not needed in the operation of the business of the Partnership may be invested by the General Partner in investment grade instruments (or investment companies whose portfolio consists primarily thereof), government obligations, certificates of deposit, bankers’ acceptances and municipal notes and bonds. The funds of the Partnership shall not be commingled with the funds of any other Person except for such commingling as may necessarily result from an investment in those investment companies permitted by this Section 11.2(b).
11.3
Fiscal and Taxable Year
. The fiscal and taxable year of the Partnership shall be the calendar year.
11.4
Annual Tax Information and Report
. Within 90 days after the end of each fiscal year of the Partnership, the General Partner shall furnish to each person who was a Limited Partner at any time during such year the tax information necessary to file such Limited Partner’s individual tax returns as shall be reasonably required by law.
11.5
Partnership Representative; Tax Elections; Special Basis Adjustments
.
(a)
The General Partner is hereby designated as the “tax matters partner” for the Partnership pursuant to Section 6231(a)(7) of the Code, and, with respect to the Partnership's taxable years beginning on or after January 1, 2018, the “partnership representative” of the Partnership within the meaning of Section 6223(a) of the Code. If any state or local tax law provides for a tax matters partner / partnership representative or person having similar rights, powers, authority or obligations, the person designated above shall also serve in such capacity (in any such federal, state or local capacity, the “Partnership Representative”). The General Partner may name a replacement Partnership Representative at any time; provided, however, that the designated Partnership Representative shall serve as the Partnership Representative until resignation, death, incapacity, or removal. In such capacity, the Partnership Representative shall have all of the rights, authority and power, and shall be subject to all of the obligations, of a tax matters partner / partnership representative to the extent provided in the Code and the Regulations, and the Partners hereby agree to be bound by any actions taken by the Partnership Representative in such capacity. The Partnership Representative shall represent the Partnership in all tax matters to the extent allowed by law. Without limiting the foregoing, the Partnership Representative is authorized and required to represent the Partnership (at the Partnership’s expense) in connection with all examinations of the Partnership’s affairs by tax authorities, including administrative and judicial proceedings, and to expend Partnership funds for professional services and costs associated therewith. Any decisions made by the Partnership Representative, including, without limitation, whether or not to settle or contest any tax matter, and the choice of forum for any such contest, and whether or not to extend the period of limitations for the assessment or collection of any tax, shall be made in the Partnership Representative’s sole discretion. The Partnership Representative (i) shall have the sole authority to make any elections on behalf of the Partnership permitted to be made pursuant to the Code or the Regulations promulgated thereunder and (ii) may, in its sole discretion, make an election on behalf of the Partnership under Sections 6221(b) or 6226 of the Code as in effect for the first fiscal year beginning on or after January 1, 2018 and thereafter, (iii) may request a modification to any assessment of an imputed underpayment, including a modification for any Partner who is a real estate investment trust or regulated investment company as defined in Sections 586 and 851, respectively, based on such Partner making a deficiency dividend pursuant to Section 860 and a modification based on the tax-exempt status of a reviewed year Partner, and (iv) may take all actions the Partnership Representative deems necessary or appropriate in connection with the foregoing. The Partnership Representative shall be reimbursed and indemnified by the Partnership for all claims, liabilities, losses, costs, damages and expenses, and for reasonable legal and accounting fees, incurred in connection with the performance of its duties as Partnership Representative in accordance with the terms hereof, unless the actions of the Partnership Representative constitute gross negligence or intentional misconduct.
(b)
Each Partner hereby covenants to cooperate with the Partnership Representative and to do or refrain from doing any or all things reasonably requested by the Partnership Representative with
respect to examinations of the Partnership’s affairs by tax authorities (including, without limitation, promptly filing amended tax returns and promptly paying any related taxes, including penalties and interest) and shall provide promptly and update as necessary at any times requested by the Partnership Representative, all information, documents, self-certifications, tax identification numbers, tax forms, and verifications thereof, that the Partnership Representative deems necessary in connection with (1) any information required for the Partnership to determine the application of Sections 6221-6235 of the Code to the Partnership; (2) an election by the Partnership under Section 6221(b) or 6226 of the Code, and (3) an audit or a final adjustment of the Partnership by a tax authority. The Partnership and the Partners hereby agree and acknowledge that (i) the actions of the Partnership Representative in connection with examinations of the Partnership’s affairs by tax authorities shall be binding on the Partnership and the Partners; and (ii) neither the Partnership nor the Partners have any right to contact the IRS with respect to an examination of the Partnership or participate in an audit of the Partnership or proceedings under Sections 6221-6235 of the Code.
(c)
The Partners acknowledge that the Partnership intends to elect the application of Section 6221(b) of the Code (the “Opt-out Election”) for its first taxable year beginning on or after January 1, 2018 and for each Fiscal Year thereafter. If the Partnership is not eligible to make such election, the Partners acknowledge that the Partnership intends to elect the application of Section 6226 of the Code (the “Push-out Election”) for its first taxable year beginning on or after January 1, 2018 and for each Fiscal Year thereafter. This acknowledgement applies to each Partner whether or not the Partner owns a Partnership Interest in both the reviewed year and the year of the tax adjustment. If the Partnership elects the application of Section 6226 of the Code, the Partners shall take into account and report to the IRS (or any other applicable tax authority) any adjustment to their tax items for the reviewed year of which they are notified by the Partnership in a written statement, in the manner provided in Section 6226(b), whether or not the Partner owns a Partnership Interest at such time. Any Partner that fails to report its share of such adjustments on its tax return, shall indemnify and hold harmless the Partnership, the General Partner, the Partnership Representative, and each of their Affiliates from and against any and all liabilities related to taxes (including penalties and interest) imposed on the Partnership as a result of the Partner’s failure. In addition, each Partner shall indemnify and hold the Partnership, the General Partner, the Partnership Representative, and each of their Affiliates harmless from and against any and all liabilities related to taxes (including penalties and interest) imposed on the Partnership (i) pursuant to Section 6221 of the Code, which liabilities relate to adjustments that would have been made to the tax items allocated to such Partner had such adjustments been made for a tax year beginning prior to January 1, 2018 (and assuming that the Partnership had not made an election to have Section 6221 of the Code apply for such earlier tax years) and (ii) resulting from or attributable to such Partner’s failure to comply with the preceding subsection (b) or this subsection (c). Each Partner acknowledges and agrees that no Partner shall have any claim against the Partnership, the General Partner, the Partnership Representative, or any of their Affiliates for any tax, penalties or interest resulting from the Partnership’s election under Section 6226 of the Code.
(d)
If the Partnership does not make an election under Section 6226 of the Code, the amount of any imputed underpayment assessed upon the Partnership, pursuant to Code Section 6232, attributable to a Partner (or former Partner), as reasonably determined by the Partnership Representative, shall be treated as a withholding tax with respect to such Partner. To the extent any portion of such imputed underpayment cannot be withheld from a current distribution, any such Partner (or former Partner) shall be liable to the Partnership for the amount that cannot be withheld and agrees to pay such amount to the Partnership. Any such amount withheld or any such payment shall not be treated as a Capital Contribution for purposes of any provision herein that affects distributions to the Partners and any amount not paid by
any such Partner (or former Partner) at the time reasonably requested by the Partnership Representative shall accrue interest at the rate set by the IRS for the underpayment of federal taxes, compounded quarterly, until paid.
(e)
The provisions of this Section 10 shall survive the termination of the Partnership, the termination of this Agreement and, with respect to any Partner, the transfer or assignment of any portion of such Partner’s Partnership Interest.
(f)
The Partnership Representative shall keep the Partners reasonably informed as to the status of any tax investigations, audits, lawsuits or other judicial or administrative tax proceedings and shall promptly copy all other Partners on any correspondence to or from the IRS or applicable state, local or foreign tax authority relating to such proceedings. The Partnership Representative shall inform the IRS, as promptly as possible upon the commencement of any examination or proceeding, of the tax-exempt status of any Partners and shall take any actions or refrain from taking any action to the extent necessary to preserve the tax-exempt status of such Partners and shall afford such Partners tax-free treatment, to the extent permissible under the Code. The Partnership Representative has an obligation to perform its duties as the Partnership Representative in good faith and in such manner as will serve the best interests of the Partnership and all of the Partners.
(g)
The Partnership shall elect to deduct expenses, if any, incurred by it in organizing the Partnership as provided in Section 709 of the Code.
11.6
Reports Made Available to Limited Partners
.
(a)
As soon as practicable after the close of each fiscal quarter (other than the last quarter of the fiscal year), upon written request by a Limited Partner to the General Partner, the General Partner will make available, without cost, to each Limited Partner a quarterly report containing financial statements of the Partnership, or of the General Partner if such statements are prepared solely on a consolidated basis with the General Partner, for such fiscal quarter, presented in accordance with generally accepted accounting principles. As soon as practicable after the close of each fiscal year, upon written request by a Limited Partner to the General Partner, the General Partner will make available, without cost, to each Limited Partner an annual report containing financial statements of the Partnership, or of the General Partner if such statements are prepared solely on a consolidated basis with the General Partner, for such fiscal year, presented in accordance with generally accepted accounting principles.
(b)
Any Partner shall further have the right to a private audit of the books and records of the Partnership at the expense of such Partner, provided such audit is made for Partnership purposes and is made during normal business hours.
ARTICLE 12
AMENDMENT OF AGREEMENT; MERGER
The General Partner’s consent shall be required for any amendment to this Agreement. The General Partner, without the consent of the Limited Partners, may amend this Agreement in any respect or merge or consolidate the Partnership with or into any other partnership or business entity (as defined in Section 17-211 of the Act) in a transaction pursuant to Section 7.1(b), (c) or (d) hereof; provided, however, that the following amendments and any other merger or consolidation of the Partnership shall require the consent of a majority in interest of the Limited Partners:
(a)
any amendment affecting the operation of the Exchange Right (except as provided in Section 8.5(d) or 7.1(c) hereof) in a manner adverse to the Limited Partners;
(b)
any amendment that would adversely affect the rights of the Limited Partners to receive the distributions payable to them hereunder, other than with respect to the issuance of additional Partnership Interests pursuant to Section 4.3 hereof;
(c)
any amendment that would alter the Partnership’s allocations of Profit and Loss to the Limited Partners, other than with respect to the issuance of additional Partnership Interests pursuant to Section 4.3 hereof; or
(d)
any amendment that would impose on the Limited Partners any obligation to make additional Capital Contributions to the Partnership.
ARTICLE 13
GENERAL PROVISIONS
13.1
Notices
. All communications required or permitted under this Agreement shall be in writing and shall be deemed to have been given when delivered personally or upon deposit in the United States mail, registered, postage prepaid return receipt requested, to the Partners at the addresses set forth in
Exhibit A
attached hereto; provided, however, that any Partner may specify a different address by notifying the General Partner in writing of such different address. Notices to the Partnership shall be delivered at or mailed to its specified office.
13.2
Survival of Rights
. Subject to the provisions hereof limiting transfers, this Agreement shall be binding upon and inure to the benefit of the Partners and the Partnership and their respective legal representatives, successors, transferees and assigns.
13.3
Additional Documents
. Each Partner agrees to perform all further acts and execute, swear to, acknowledge and deliver all further documents which may be reasonable, necessary, appropriate or desirable to carry out the provisions of this Agreement or the Act.
13.4
Severability
. If any provision of this Agreement shall be declared illegal, invalid, or unenforceable in any jurisdiction, then such provision shall be deemed to be severable from this Agreement (to the extent permitted by law) and in any event such illegality, invalidity or unenforceability shall not affect the remainder hereof.
13.5
Entire Agreement
. This Agreement and exhibits attached hereto constitute the entire Agreement of the Partners and supersede all prior written agreements and prior and contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof.
13.6
Pronouns and Plurals
. When the context in which words are used in the Agreement indicates that such is the intent, words in the singular number shall include the plural and the masculine gender shall include the neuter or female gender as the context may require.
13.7
Headings
. The Article headings or sections in this Agreement are for convenience only and shall not be used in construing the scope of this Agreement or any particular Article.
13.8
Counterparts
. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original copy and all of which together shall constitute one and the same instrument binding on all parties hereto, notwithstanding that all parties shall not have signed the same counterpart.
13.9
Governing Law
. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware; provided, however, that causes of action for violations of federal or state securities laws shall not be governed by this Section 13.9.
IN WITNESS WHEREOF, the parties hereto have hereunder affixed their signatures to this Fifth Amended and Restated Limited Partnership Agreement, all as of the 30
th
day of April, 2019.
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GENERAL PARTNER:
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GRIFFIN CAPITAL ESSENTIAL ASSET REIT II, INC.
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By:
/s/ Michael J. Escalante
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Michael J. Escalante, Chief Executive Officer
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LIMITED PARTNERS:
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By: GRIFFIN CAPITAL ESSENTIAL ASSET REIT II, INC., as Attorney-in-Fact for the Limited Partners holding Partnership Units
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By:
/s/ Michael J. Escalante
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Michael J. Escalante, Chief Executive Officer
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EXHIBIT A
General Partner and Limited Partner Capital Contributions,
Redemption Value and Percentage Interests as of
April 30, 2019
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Name
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Agreed Value of
Capital Contribution
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Redemption Value of
Capital Contribution
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Partnership
Units and Class of Units
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Percentage
Interest*
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|
GENERAL PARTNER:
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Griffin Capital Essential Asset REIT II, Inc.
Griffin Capital Plaza
1520 E. Grand Avenue
El Segundo, CA 90245
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$
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23,593,253
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|
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$
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23,579,641
|
|
|
2,845,534
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|
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1.00
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%
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AFFILIATED LIMITED PARTNERS:
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Griffin Capital, LLC
Griffin Capital Plaza
1520 E. Grand Avenue
El Segundo, CA 90245
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$ 230,000,000
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$ 230,000,000
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24,033,510
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8.45
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%
|
|
|
|
|
|
|
|
|
|
|
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Griffin Capital Essential Asset REIT II, Inc.
Griffin Capital Plaza
1520 E. Grand Avenue
El Segundo, CA 90245
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$
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2,031,619,544
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|
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$
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2,031,633,156
|
|
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250,017,889
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87.86
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%
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|
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Various others
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$
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32,802,685
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|
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$
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32,308,532
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|
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3,427,005
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|
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1.20
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%
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UNAFFILIATED LIMITED PARTNERS:
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|
|
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|
|
|
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|
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Various
|
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$
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41,309,770
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|
|
$
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40,442,801
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|
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4,229,504
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|
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1.49
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%
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Total
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$
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2,359,325,252
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|
|
$
|
2,357,964,130
|
|
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284,553,442
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|
|
100
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%
|
* Percentage Interest is based on the weighted average amount of all classes of units outstanding.
EXHIBIT B
NOTICE OF EXERCISE OF EXCHANGE RIGHT
In accordance with Section 8.5 of the Fifth Amended and Restated Limited Partnership Agreement (the “Agreement”) of Griffin Capital Essential Asset Operating Partnership, L.P., the undersigned hereby irrevocably (i) presents for exchange _______ Common Units in Griffin Capital Essential Asset Operating Partnership, L.P. in accordance with the terms of the Agreement and the Exchange Right referred to in Section 8.5 thereof, (ii) surrenders such Common Units and all right, title and interest therein, and (iii) directs that the Cash Amount or REIT Shares Amount (as defined in the Agreement) as determined by the General Partner deliverable upon exercise of the Exchange Right be delivered to the address specified below, and if REIT Shares (as defined in the Agreement) are to be delivered, such REIT Shares be registered or placed in the name(s) and at the address(es) specified below.
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Dated: ________________, ___________
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(Name of Limited Partner)
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(Signature of Limited Partner)
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(Mailing Address)
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(City) (State) (Zip Code)
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Signature Guaranteed by:
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If REIT Shares are to be issued, issue to:
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Name:
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Social Security or Tax I.D. Number:
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EXHIBIT C
DESIGNATION OF THE RIGHTS, POWERS, PRIVILEGES, RESTRICTIONS, QUALIFICATIONS AND LIMITATIONS OF THE SERIES A CUMULATIVE PERPETUAL CONVERTIBLE PREFERRED PARTNERSHIP INTERESTS
The following are the terms of the Series A Cumulative Perpetual Convertible Preferred Partnership Interests (the “Series A Preferred Units”) established pursuant to this Designation of Rights, Powers, Privileges, Restrictions, Qualifications and Limitations of the Series A Cumulative Perpetual Convertible Preferred Partnership Interests (the “Designation of Rights”):
(1)
Designation and Number
. The number of authorized Series A Preferred Units is 10,000,000.
(2)
Rank
. The Series A Preferred Units will, with respect to distribution rights and rights upon liquidation, dissolution or winding up of the Partnership, rank: (a) senior to the Common Units and to any other class or series of equity securities issued by the Partnership the terms of which specifically provide that such class or series ranks, with respect to distribution rights and/or rights upon liquidation, dissolution or winding up of the Partnership, junior to the Series A Preferred Units; (b) on a parity with any other class or series of equity securities issued by the Partnership the terms of which specifically provide that such class or series ranks, with respect to distribution rights and/or rights upon liquidation, dissolution or winding up of the Partnership, on a parity with the Series A Preferred Units; and (c) junior to any other class or series of equity securities issued by the Partnership the terms of which specifically provide that such class or series ranks, with respect to distribution rights and/or rights upon liquidation, dissolution or winding up of the Partnership, senior to the Series A Preferred Units. For the avoidance of doubt, debt securities of the Partnership which are outstanding and convertible into or exchangeable for equity securities of the Partnership or any other debt securities of the Partnership do not constitute a class or series of equity securities for purposes of this Section 2.
(3)
Distributions
.
(a)
Subject to the preferential rights of the holders of any class or series of equity securities issued by the Partnership ranking senior to the Series A Preferred Units as to distributions, holders of the Series A Preferred Units are entitled to receive, when and if authorized by the General Partner and declared by the Partnership, out of funds of the Partnership legally available for the payment of distributions, cumulative cash distributions: (i) at a rate equal to one-fourth (1/4) of the then applicable Distribution Rate on the Liquidation Amount with respect to each Distribution Period (other than the Initial Distribution Period), payable quarterly in arrears on each Distribution Payment Date, and (ii) with respect to the Initial Distribution Period, on the first Distribution Payment Date after the date of issuance, an amount equal to the then applicable Distribution Rate multiplied by the number of days from the date of issuance to the last day of the Initial Distribution Period (inclusive) divided by 360.
(b)
If any Distribution Payment Date is not a Business Day, then the distribution which would otherwise have been payable on such Distribution Payment Date may be paid on the next succeeding Business Day with the same force and effect as if paid on such Distribution Payment Date, and no interest or additional distributions or other sums shall accrue on the amount so payable from such Distribution Payment Date to such next succeeding Business Day.
(c)
The amount of distributions payable on the Series A Preferred Units on any date prior to the end of a Distribution Period shall be computed on the basis of a 360-day year consisting of four 90-day quarters, and actual days elapsed over a 90-day quarter. Distributions shall be payable to holders of record as they appear in the records of the Partnership at the close of business on the applicable record date (each, a “Distribution Record Date”), which will be the same date set for any quarterly distribution payable to holders of the Common Units and other Preferred Units of the Partnership, or on such other date designated by the General Partner for the payment of distributions that is not more than 30 nor less than 10 days prior to the applicable Distribution Payment Date.
(d)
No distributions on the Series A Preferred Units shall be authorized by the General Partner or paid or set apart for payment by the Partnership at any time when the terms and provisions of any agreement of the Partnership relating to any indebtedness of the Partnership or any agreement of the Partnership relating to any securities that are senior to the Series A Preferred Units, prohibit the authorization, payment or setting apart for payment thereof or provide that the authorization, payment or setting apart for payment thereof would constitute a breach of the agreement or a default under the agreement, or if the authorization, payment or setting apart for payment shall be restricted or prohibited by law.
(e)
Except as provided in Section 3(g) below, unless full cumulative distributions on the Series A Preferred Units for all past Distribution Periods have been or contemporaneously are authorized and paid or authorized and a sum sufficient for the payment thereof is set apart for payment, no distributions (other than distributions paid in Common Units or equity securities ranking junior to the Series A Preferred Units as to distributions and upon voluntary or involuntary liquidation, dissolution or winding up of the Partnership, or options, warrants or rights to subscribe for or purchase Common Units or such junior equity securities) shall be authorized, declared or paid or set apart for payment upon the Common Units or any other equity securities of the Partnership ranking junior to or on a parity with the Series A Preferred Units as to distributions, nor shall any Common Units or any other equity securities of the Partnership ranking junior to or on a parity with the Series A Preferred Units as to distributions be redeemed, purchased or otherwise acquired for any consideration (or any monies be paid to or made available for a sinking fund for the redemption of any such shares) by the Partnership except (i) by conversion into or exchange for Common Units or such junior equity securities, (ii) by redemption, purchase or other acquisition of Common Units or such junior equity securities made for purposes of an incentive, benefit, share redemption program or share purchase plan of the Partnership or any of its direct or indirect subsidiaries, (iii) for redemptions, purchases or other acquisitions by the Partnership, whether pursuant to any provision of the General Partner’s Articles of Incorporation or otherwise, for the purpose of preserving the General Partner’s status as a REIT for U.S. federal income tax purposes or (iv) for any distributions by the General Partner required for it to maintain its status as a REIT for U.S. federal income tax purposes.
(f)
Any distribution payments made on the Series A Preferred Units shall first be credited against the earliest accrued but unpaid distributions due with respect to the Series A Preferred Units which remain payable.
(g)
When full cumulative distributions for all past Distribution Periods are not paid in full in cash (or a sum sufficient for such full payment is not so set apart) upon the Series A Preferred Units and the equity securities of any other class or series ranking on a parity as to distributions with the Series A Preferred Units, then all distributions declared upon the Series A Preferred Units and any such other class or series of equity securities (ranking on a parity as to distributions with the Series A Preferred Units) shall be declared
pro rata so that the amount of distributions authorized per share of the Series A Preferred Units and such other classes or series of equity securities shall in all cases bear to each other in the same ratio that accumulated, accrued and unpaid distributions per share on the Series A Preferred Units and such other class or series of equity securities (which shall not include any accumulation in respect of unpaid distributions for prior distribution periods if such other class or series does not have a cumulative distribution) bear to each other.
(h)
No interest, or sum of money in lieu thereof, shall be payable with respect to any distribution payment or payments on Series A Preferred Units which may be in arrears, and the holders of Series A Preferred Units are not entitled to any distributions, whether payable in cash, securities or other property, in excess of the full cumulative distributions described in this Section 3. Subject to the provisions of this Section 3, such distributions (payable in cash, securities or other property) as may be determined by the General Partner may be declared and paid on any securities of the Partnership from time to time out of any funds legally available for such payment, and holders of Series A Preferred Units shall not be entitled to participate in any such distributions.
(i)
The Partnership shall remain entitled to receive and retain any interest or other earnings on any money set apart for the payment of distributions on Series A Preferred Units and holders thereof shall have no claim to such interest or other earnings. To the extent permitted by applicable law, any funds for the payment of distributions on Series A Preferred Units which have been set apart by the Partnership and which remain unclaimed by the holders of the Series A Preferred Units entitled thereto on the first anniversary of the applicable Distribution Payment Date, or other distribution payment date, shall revert and be repaid to the general funds of the Partnership, and thereafter the holders of the Series A Preferred Units entitled to the funds which have reverted or been repaid to the Partnership shall look only to the general funds of the Partnership for payment, without interest or other earnings thereon.
(j)
Any cash distributions paid in respect of Series A Preferred Units, including any portion thereof which the Partnership elects to designate as “capital gain dividends” (as defined in Section 857 (or any successor provision) of the Internal Revenue Code) or as a return of capital, shall be credited to the distributions on the Series A Preferred Units.
(4)
Liquidation Preference
.
(a)
Upon any voluntary or involuntary liquidation, dissolution or winding up of the Partnership (referred to herein as a “liquidation”), the holders of the Series A Preferred Units will be entitled to be paid out of the assets of the Partnership legally available for distribution to its unitholders, after payment of or provision for the debts and other liabilities of the Partnership, liquidating distributions, in cash or property at its fair market value as determined by the General Partner, in the amount, for each outstanding share of Series A Preferred Units equal to the Liquidation Amount (the “Liquidation Preference”), plus an amount equal to any accumulated and unpaid distributions to the date of payment, before any distribution or payment is made to holders of Common Units or any other class or series of equity securities of the Partnership ranking junior to the Series A Preferred Units as to the distribution of assets upon a liquidation but subject to the preferential rights of holders of any class or series of equity securities of the Partnership ranking senior to the Series A Preferred Units as to the distribution of assets upon a liquidation. After payment of the full amount of the Liquidation Preference to which they are entitled, plus an amount equal to any accumulated and unpaid distributions to the date of payment, the holders of Series A Preferred Units will have no right or claim to any of the remaining assets of the Partnership.
(b)
In the event that, upon any liquidation of the Partnership, the available assets of the Partnership are insufficient to pay the Liquidation Preference on all outstanding Series A Preferred Units, plus an amount equal to any accumulated and unpaid distributions to the date of such payment and any corresponding amounts payable as liquidating distributions on all other classes or series of equity securities of the Partnership ranking on a parity with the Series A Preferred Units in the distribution of assets upon a liquidation, then the holders of Series A Preferred Units and all other such equity securities of the Partnership ranking on a parity with Series A Preferred Units shall share ratably in any such distribution of assets in proportion to the full liquidating distributions per share to which they would otherwise be respectively entitled.
(c)
For purposes of this Section 4, neither the voluntary sale, lease, exchange, transfer or conveyance (for cash, shares of stock, securities or other consideration) of all or substantially all of the property or assets of the Partnership to, nor the merger or consolidation or any other business combination of the Partnership with or into or with any other entity or the merger or consolidation of any other entity into or with the Partnership or a statutory unit exchange by the Partnership, shall be deemed to be a liquidation. Upon a Change of Control, if the Series A Preferred Units are not redeemed or converted as provided in Sections 5 or 6 hereof, respectively, then the Partnership will cause any acquirer of the Partnership to assume the obligations set forth in this Designation of Rights and be subject to the terms and conditions set forth therein. And, notwithstanding the foregoing, if such assumption is not permitted by law, the Partnership shall take any actions under its control necessary to cause the acquirer to issue securities of the acquirer with substantially similar contractual rights as those contained in this Designation of Rights (including the inclusion of a provision in the relevant merger or consolidation agreement requiring the acquirer to issue securities of the acquirer with substantially similar contractual rights as those contained in this Designation of Rights).
(d)
In determining whether a distribution (other than upon voluntary or involuntary liquidation), by dividend, redemption or other acquisition of shares of equity securities of the Partnership or otherwise, is permitted under applicable law, amounts that would be needed, if the Partnership were to be dissolved at the time of the distribution, to satisfy the preferential rights upon dissolution of holders of the Series A Preferred Units shall not be added to the Partnership’s total liabilities.
(e)
Written notice of any liquidation, stating the payment date or dates when, and the place or places where, the amounts distributable in such circumstances shall be payable, shall be given by first class mail, postage prepaid, not less than 30 nor more than 60 days prior to the payment date stated therein to each record holder of the Series A Preferred Units at the respective address of such holders as the same shall appear on the stock transfer records of the Partnership.
(5)
Redemption
.
(a)
The Partnership may redeem the Series A Preferred Units, in whole or in part at the option of the Partnership upon the date of, and on any date after, the earliest to occur of (i) five years from the First Issuance Date or (ii) the First Triggering Event, at a per share redemption price in cash equal to the Liquidation Amount (the “Redemption Price”), plus any accumulated and unpaid distributions on the Series A Preferred Units up to the Redemption Date (as defined below), plus, in the case of a redemption pursuant to Section 5(a)(ii) that occurs on or after the date of the First Triggering Event, but before the date that is five years from the First Issuance Date, the Redemption Fee. If fewer than all of the outstanding Series A Preferred
Units are to be redeemed, the Partnership shall determine the number of Series A Preferred Units to be redeemed on a pro rata basis (as nearly as practicable without creating any fractional shares), by lot or in such other manner as determined by the Partnership to be fair and equitable to holders of Series A Preferred Units.
(b)
If the General Partner fails by August 1, 2023 to list either REIT Shares or the Series A Preferred Stock on a National Securities Exchange, the Partnership shall redeem, at the option of the holder of the Series A Preferred Units on or on any date following August 1, 2023, such holder’s Series A Preferred Units, at the Redemption Price, plus any accumulated and unpaid distributions on the Series A Preferred Units up to the Redemption Date (as defined below) (the “Mandatory Redemption Right”); provided, however, that no holder of the Series A Preferred Units shall have a Mandatory Redemption Right under this Section 5(b) if the General Partner lists REIT Shares or the Series A Preferred Stock on a National Securities Exchange prior to or on August 1, 2023.
(c)
Notwithstanding anything to the contrary contained in this Designation of Rights, except as otherwise provided herein, the redemption provisions of the Series A Preferred Units do not in any way limit the Partnership’s right or ability to purchase, from time to time either at a public or a private sale, Series A Preferred Units at such price or prices as the Partnership may determine, subject to the provisions of applicable law.
(d)
If, prior to the Conversion Date (as defined below), the Partnership has provided notice of its election to redeem some or all of the Series A Preferred Units pursuant to Section 5(a), or the Partnership has received a notice of its obligation to redeem the Series A Preferred Units pursuant to Section 5(b), the holders of the Series A Preferred Units will not have a Conversion Right (as defined below) with respect to the Series A Preferred Units called or put for redemption.
(e)
Notice of a redemption pursuant to Section 5(a) will be mailed by the Partnership, postage prepaid, not less than 15 Business Days prior to the Redemption Date, addressed to the respective holders of the Series A Preferred Units to be redeemed at their respective addresses as they appear on the books of the Partnership. Each notice shall state: (i) the redemption date for the Series A Preferred Units being redeemed (the “Redemption Date”); (ii) the number of Series A Preferred Units to be redeemed; (iii) the Redemption Price; (iv) the place or places where certificates representing such Series A Preferred Units are to be surrendered for payment of the Redemption Price; and (v) that distributions on the Series A Preferred Units to be redeemed will cease to accumulate on such Redemption Date. No failure to give such notice or any defect thereto or in the mailing thereof shall affect the validity of the proceedings for the redemption of any Series A Preferred Units except as to a holder to whom notice was defective or not given.
(f)
A holder of Series A Preferred Units desiring to exercise its Mandatory Redemption Right under Section 5(b) hereof must deliver a written redemption notice (the “Mandatory Redemption Notice”) in the form approved by the Partnership, duly completed, to the Partnership by certified mail postage prepaid to the Partnership’s principal office c/o the General Partner. The Redemption Notice must state: (i) the number of Series A Preferred Units to be redeemed by the Partnership; and (ii) that the Series A Preferred Units are to be redeemed pursuant to Section 5(b) hereof. Upon receipt of a Mandatory Redemption Notice, the Partnership, not less than 15 Business Days prior to the Redemption Date, shall mail a notice to such holder which shall state: (i) the Redemption Date; (ii) the place or places where certificates representing such Series
A Preferred Units are to be surrendered for payment of the Redemption Price; and (iii) that distributions on the Series A Preferred Units to be redeemed will cease to accumulate on such Redemption Date.
(g)
On or after a Redemption Date, each holder of Series A Preferred Units to be redeemed must present and surrender the certificates (or an affidavit of loss and indemnity satisfactory to the Partnership), to the extent such units are certificated, representing the Series A Preferred Units to the Partnership to be redeemed at the place designated in the notice from the Partnership referenced in (e) or (f) above, as the case may be, and thereupon the Redemption Price for such Series A Preferred Units (and all accumulated and unpaid distributions to but excluding the Redemption Date) will be paid to or on the order of such holder by wire transfer pursuant to wire instructions provided by such holder and each surrendered certificate, if any, will be canceled. If the Series A Preferred Units to be redeemed are certificated, then in the event that fewer than all the Series A Preferred Units are to be redeemed, a new certificate will be issued representing the unredeemed Series A Preferred Units.
(h)
Except as provided in the next sentence, from and after a Redemption Date, all distributions on the Series A Preferred Units subject to such redemption will cease to accumulate and all rights of the holders thereof, except the right to receive the Redemption Price thereof (and all accumulated and unpaid distributions to but excluding the Redemption Date), will cease and terminate and such Series A Preferred Units shall not be deemed to be outstanding for any purpose whatsoever. In the event that the Partnership defaults in the payment of the Redemption Price for any Series A Preferred Units surrendered for redemption pursuant to Section 5(a), such Series A Preferred Units shall continue to be deemed to be outstanding for all purposes and to be owned by the respective holders, and the Partnership shall promptly return any surrendered certificates representing such Series A Preferred Units to such holders (although the failure of the Partnership to return any such certificates to such holders shall in no way affect the ownership of such Series A Preferred Units by such holders or their rights thereunder) (and the holders of the Series A Preferred Units that were not redeemed shall have no other remedy against the Partnership).
(i)
At its election, the Partnership, prior to a Redemption Date, may irrevocably deposit the Redemption Price of the Series A Preferred Units to be redeemed pursuant to this Section 5 in trust for the holders of Series A Preferred Units with a bank or trust company, in which case the Partnership shall send a notice to the holders of Series A Preferred Units to be redeemed which shall (A) state the date of such deposit, (B) specify the office of such bank or trust company as the place of payment of the Redemption Price and (C) require the holder of Series A Preferred Units to be redeemed to surrender the certificates, if any, representing such Series A Preferred Units (or an affidavit of loss and indemnity satisfactory to the Partnership) at such place on or about the date fixed in the redemption notice (which may not be later than the Redemption Date) against payment of the Redemption Price. Any monies so deposited which remain unclaimed at the end of two years after the Redemption Date shall be returned by such bank or trust company to the Partnership.
(6)
Conversion Rights
. The Series A Preferred Units are not convertible into or exchangeable for any other property or securities of the Partnership, except as provided in Articles 8 and 9 of the Agreement and in this Section 6.
(a)
Subject to the Partnership’s redemption rights under Section 5, at the option of the holder of Series A Preferred Units, any time after the earlier of (i) five years from the First Issuance Date, or if the Second Issuance occurs, five years from the Second Issuance Date or (ii) a Change of Control, such holder
shall have the right to convert (the “Conversion Right”) any or all of the holder's Series A Preferred Units into Common Units at a per share conversion rate equal to the Liquidation Amount divided by the then Common Unit Fair Market Value (the “Conversion Price”); provided, however, that no Series A Preferred Units may be converted on any Conversion Date (as defined below) pursuant to this Section 6 unless at least 1,000 Series A Preferred Units, in the aggregate, are converted by one or more holders thereof.
(b)
A holder of Series A Preferred Units desiring to exercise its Conversion Right must deliver, on or before the close of business on the Conversion Date, the certificates (if any) evidencing the Series A Preferred Units to be converted, duly endorsed for transfer (or an affidavit of loss and indemnity satisfactory to the Partnership), together with a written conversion notice (the “Conversion Notice”) in the form approved by the Partnership, duly completed, to the Partnership by certified mail postage prepaid to the Partnership’s principal office c/o the General Partner. The Conversion Notice must state: (i) the date the holder proposes to convert the Series A Preferred Units into Common Units (the “Conversion Date”); provided, however, that the Conversion Date must be a Business Day and may not be less than five nor more than 15 days after the date the Conversion Notice is delivered to the Partnership, or in the event that holders of 15% or more of the then outstanding Series A Preferred Unis provide a Conversion Notice to the Partnership, the Conversion Date may not be less than 30 days after the date the Conversion Notice is delivered to the Partnership; (ii) the number of Series A Preferred Units to be converted; and (iii) that the Series A Preferred Units are to be converted pursuant to the applicable provisions hereof. Subject to the terms of this Designation of Rights, the Partnership’s obligation to convert the Series A Preferred Units shall be extended for such period of time as may be reasonably necessary for the parties to comply with the Hart-Scott-Rodino Antitrust Improvements Act of 1976.
(c)
No fractional Common Units will be issued upon the conversion of the Series A Preferred Units in connection with a Conversion Right. Instead, the Partnership will make a cash payment (computed to the nearest cent) equal to the value of such fractional Common Unit based upon the Conversion Price.
(d)
At the Partnership’s option, upon the exercise of the Conversion Right by a holder of Series A Preferred Units and upon written notice to the holder delivered not later than three Business Days prior to the Conversion Date, in lieu of issuing the requisite number of Common Units to the converting holder of Series A Preferred Units in accordance with Section 6(a) above, the Partnership may elect to make a cash payment to the converting holder of Series A Preferred Units in an amount equal to the product of (1) the Conversion Price and (2) the number of Common Units that would have been otherwise issued to the converting holder of Series A Preferred Units. In such a case, the holder shall only have the right to such payment and shall cease to have any further rights as a unitholder of the Partnership.
(e)
Any conversion or redemption pursuant to this Section 6 shall be effective as of the close of business on the Conversion Date. To the extent that any Series A Preferred Units to be converted or redeemed pursuant to this Section 6 are certificated, if fewer than all the units evidenced by any such certificate are to be converted or redeemed, a new certificate shall be issued evidencing the units that have not been converted or redeemed.
(f)
Notwithstanding anything to the contrary contained herein, no holder of Series A Preferred Units will be entitled to exercise a Conversion Right if (i) in the opinion of counsel for the Partnership, the General Partner would no longer qualify as a REIT or its status as a REIT may be compromised as a result of such conversion; or (ii) such conversion would, in the opinion of counsel for the Partnership, constitute
or be likely to constitute a violation of applicable securities laws. Notwithstanding the foregoing, upon the exercise of the Conversion Right by a holder of Series A Preferred Units in accordance with Section 6 of this Designation of Rights, the Partnership will use reasonable efforts to satisfy the conditions set forth in Section 6(f)(i) and (ii) of this Designation of Rights.
(g)
The Partnership shall at all times reserve and keep available, free from preemptive rights, out of the aggregate of its authorized and unissued Common Units, solely for the purpose of effecting conversion of the Series A Preferred Units, the full number of Common Units deliverable upon the conversion of all outstanding Series A Preferred Units not theretofore converted into Common Units.
(h)
The Partnership shall pay any documentary stamp or similar issue or transfer taxes required to be paid by the Partnership under applicable law in respect of the issue or delivery of Common Units on conversion of Series A Preferred Units pursuant hereto. The converting holder of the Series A Preferred Units shall pay any documentary stamp or similar issue or transfer taxes required to be paid by such holder of the Series A Preferred Units under applicable law in respect of the issue or delivery of Common Units on conversion of Series A Preferred Units pursuant hereto.
(7)
In the event any Series A Preferred Units have been redeemed or repurchased by the Partnership pursuant to Section 5 or 6 hereof or converted pursuant to Section 6 hereof, or otherwise reacquired by the Partnership, the Units so redeemed, repurchased, converted or reacquired shall become authorized but unissued Preferred Units without further designation as to class or series, available for future classification or reclassification by the General Partner and issuance by the Partnership.
(8)
Record Holders
. The Partnership and the transfer agent for the Series A Preferred Units may deem and treat the record holder of any Series A Preferred Units as the true and lawful owner thereof for all purposes, and neither the Partnership nor the transfer agent shall be affected by any notice to the contrary.
(9)
No Preemptive Rights
. No holder of the Series A Preferred Units will, as a holder of the Series A Preferred Units, have any preemptive rights to purchase or subscribe for Common Units or any other security of the Partnership (whether now or hereafter authorized).
(10)
Notices to Holders
. Unless otherwise provided herein or required by law, notices to holders of Series A Preferred Units provided for in this Designation of Rights shall be mailed to such holders by first class mail, postage pre-paid, at the respective addresses as the same shall appear on the records of the Partnership. Unless otherwise provided herein or required by law, any requirements set forth in this Designation of Rights for public announcements or publications by the Partnership may be satisfied if the subject matter thereof is contained in (a) a document filed by the Partnership with, or furnished by the Partnership to, the Securities and Exchange Commission and such filing is available to be viewed by the public on the Securities and Exchange Commission’s EDGAR system (or any successor system thereto) or (b) a press release submitted by the Partnership for publication to Dow Jones & Corporation, Inc., Business Wire. PR Newswire or Bloomberg Business News (or, if such organizations are not in existence at the time of issuance of such press release, such other news or press organization as is reasonably calculated to broadly disseminate the relevant information to the public).
(11)
Severability
. If any of the preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications or terms or conditions of redemption of the Series A Preferred Units is invalid, unlawful or incapable of being enforced by reason of any rule of law or
public policy, then, to the extent permitted by law, all other preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications or terms or conditions of redemption of the Series A Preferred Units which can be given effect without the invalid, unlawful or unenforceable preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications or terms or conditions of redemption of the Series A Preferred Units shall remain in full force and effect and shall not be deemed dependent upon any invalid, unlawful or unenforceable preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications or terms or conditions of redemption of the Series A Preferred Units.
(12)
Definitions
.
“Business Day” means any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which banking institutions in New York, New York and Seoul, Korea are authorized or required by law, regulation or executive order to close.
“Change of Control” will be deemed to have occurred with respect to the General Partner on any date after the First Issuance Date on which the General Partner is no longer managed directly or indirectly by GCC or any affiliate thereof, except as a result of an Excepted Transaction.
“Common Unit Fair Market Value” means, with respect to any Conversion Date, the fair market value thereof determined in good faith by the General Partner consistent with its duties under applicable law after consultation with the Partnership’s financial advisor, which approval may not be unreasonably withheld or delayed.
“Distribution Payment Date” means January 15, April 15, July 15 and October 15 of each year.
“Distribution Period” means the period from and including any Distribution Payment Date to, but excluding, the next Distribution Payment Date; provided, however, the initial Distribution Period with respect to any Series A Preferred Unit (the “Initial Distribution Period”) shall be the period from and including the issuance date of such share to, but excluding, the next Distribution Payment Date.
“Distribution Rate” shall be as follows:
(i) 6.55% from and after the First Issuance Date, or if the Second Issuance occurs, 6.55% from and after the Second Issuance Date (the “Initial Rate”) until the five year anniversary of the First Issuance Date, or if the Second Issuance occurs, the five year anniversary of the Second Issuance Date (the “Reset Date”), subject to paragraphs (iii) and (iv) below;
(ii) 6.75% from and after the Reset Date (the “Standard Reset Rate”), subject to paragraphs (iii) and (iv) below;
(iii) if the First Triggering Event occurs, 7.55% from and after August 2, 2020 until the Second Triggering Event if it occurs (provided that, if the Listing Date occurs on or prior to February 2, 2021, the Distribution Rate shall be the (1) the Initial Rate from and after the Listing Date until the Reset Date and (2) the Standard Reset Rate from and after the Reset Date (provided further that, if the Listing Date does not occur within six months following the First Triggering Event, the Distribution Rate shall be 7.75% from and after the Reset Date); or
(iv) if the Second Triggering Event occurs, 8.05% from and after August 2, 2021 until the Reset Date and, 8.25% from and after the Reset Date.
“Excepted Transaction” means a merger, sale of all or substantially all of the voting securities or assets or similar transaction (i) between or among the General Partner and one or more affiliates of GCC or other REITs managed directly or indirectly by GCC or (ii) in which the General Partner becomes internally managed by a substantial number of the GCC real estate management team or by Persons that were or are affiliates of GCC.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“First Triggering Event” will be deemed to have occurred if the Listing Date has not occurred by August 1, 2020.
“First Issuance Date” means the first date on which any Series A Preferred Units are issued.
“GCC” means Griffin Capital Company, LLC.
“Liquidation Amount” means $25.00 per Series A Preferred Unit.
“Listing Date” means the effective date of the listing by the General Partner at the General Partner’s election of either REIT Shares or the Series A Preferred Stock on a National Securities Exchange.
“National Securities Exchange” means any securities exchange registered with the Securities and Exchange Commission pursuant to Section 6 of the Exchange Act.
“Person” means any individual, partnership, limited liability company, corporation, joint venture, trust or other entity.
“Redemption Fee” means a fee comprising 1.5% of the Redemption Price.
“Second Issuance” means an issuance of any Series A Preferred Units that occurs after the First Issuance Date.
“Second Issuance Date” means the date on which the Second Issuance occurs.
“Second Triggering Event” will be deemed to have occurred if the Listing Date has not occurred by August 1, 2021.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
April 30, 2019
among
GRIFFIN CAPITAL ESSENTIAL ASSET OPERATING PARTNERSHIP, L.P.
as Borrower
and
The Lenders Party Hereto
and
KEYBANK NATIONAL ASSOCIATION,
as Administrative Agent
KEYBANC CAPITAL MARKETS, MERRILL LYNCH, PIERCE, FENNER AND SMITH INCORPORATED OR ITS AFFILIATES, SUNTRUST ROBINSON HUMPHREY, INC., CAPITAL ONE, NATIONAL ASSOCIATION, U.S. BANK NATIONAL ASSOCIATION, WELLS FARGO SECURITIES, LLC, BMO CAPITAL MARKETS AND FIFTH THIRD BANK AS JOINT BOOKRUNNERS AND JOINT LEAD ARRANGERS
TABLE OF CONTENTS
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ARTICLE I Definitions
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2
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SECTION 1.01
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Defined Terms
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2
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SECTION 1.02
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Classification of Loans and Borrowings
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34
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SECTION 1.03
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Terms Generally
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34
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SECTION 1.04
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Accounting Terms; GAAP
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34
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ARTICLE II The Credits
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34
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SECTION 2.01
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Commitments
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35
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SECTION 2.02
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Loans and Borrowings
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35
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SECTION 2.03
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Requests for Borrowings
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36
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SECTION 2.04
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Swingline
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37
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SECTION 2.05
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Letters of Credit
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39
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SECTION 2.06
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Funding of Borrowings
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43
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SECTION 2.07
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Interest Elections
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44
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SECTION 2.08
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Termination, Reduction and Increase of Commitments
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45
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SECTION 2.09
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Repayment of Loans; Evidence of Debt
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47
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SECTION 2.10
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Prepayment of Loans
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48
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SECTION 2.11
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Fees
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50
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SECTION 2.12
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Interest
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52
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SECTION 2.13
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Alternate Rate of Interest
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52
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SECTION 2.14
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Increased Costs
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54
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SECTION 2.15
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Break Funding Payments
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56
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SECTION 2.16
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Taxes
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56
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SECTION 2.17
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Payments Generally, Pro Rata Treatment; Sharing of Set-offs
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61
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SECTION 2.18
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Mitigation Obligations; Replacement of Lenders
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64
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SECTION 2.19
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Extension
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65
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SECTION 2.20
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Defaulting Lenders
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67
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SECTION 2.21
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Amendment and Restatement; Reallocation of Lender Pro Rata Shares; No Novation
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69
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ARTICLE III Representations and Warranties
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70
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SECTION 3.01
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Organization; Powers
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70
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SECTION 3.02
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Authorization; Enforceability
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70
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SECTION 3.03
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Governmental Approvals; No Conflicts
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71
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SECTION 3.04
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Financial Condition; No Material Adverse Change
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71
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SECTION 3.05
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Properties
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71
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SECTION 3.06
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Intellectual Property
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73
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SECTION 3.07
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Litigation and Environmental Matters
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73
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SECTION 3.08
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Compliance with Laws and Agreements
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75
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SECTION 3.09
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Investment and Holding Company Status
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75
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SECTION 3.10
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Taxes
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75
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SECTION 3.11
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ERISA
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75
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SECTION 3.12
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Disclosure
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76
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SECTION 3.13
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Insurance
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76
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SECTION 3.14
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Margin Regulations
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76
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SECTION 3.15
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Subsidiaries; REIT Qualification
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76
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SECTION 3.16
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OFAC
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76
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SECTION 3.17
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Beneficial Ownership Certification
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77
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ARTICLE IV Conditions
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77
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SECTION 4.01
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Effective Date
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77
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SECTION 4.02
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Each Credit Event
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79
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ARTICLE V Affirmative Covenants
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79
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SECTION 5.01
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Financial Statements; Ratings Change and Other Information
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79
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SECTION 5.02
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Financial Tests
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81
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SECTION 5.03
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Notices of Material Events
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82
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SECTION 5.04
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Existence; Conduct of Business
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82
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SECTION 5.05
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Payment of Obligations
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82
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SECTION 5.06
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Maintenance of Peroperties; Insurance
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83
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SECTION 5.07
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Books and Records; Inspection Rights
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83
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SECTION 5.08
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Compliance with laws
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83
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SECTION 5.09
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Use of Proceeds
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83
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SECTION 5.10
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Fiscal Year
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84
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SECTION 5.11
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Environmental Matters
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84
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SECTION 5.12
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Pool Property Covenants
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85
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SECTION 5.13
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Pool Properties
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86
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SECTION 5.14
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Further Assurances
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88
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SECTION 5.15
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Parent Covenants
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88
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SECTION 5.16
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ECP
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89
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SECTION 5.17
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Subsidiary Guaranty Termination
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89
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SECTION 5.18
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Beneficial Ownership
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89
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ARTICLE VI Negative Covenants
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89
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SECTION 6.01
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Liens
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89
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SECTION 6.02
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Fundamental Changes
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89
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SECTION 6.03
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Investments, Loans, Advances and Acquisitions
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90
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SECTION 6.04
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Hedging Agreements
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91
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SECTION 6.05
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Restricted Payments
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91
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SECTION 6.06
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Transactions with Affiliates
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92
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SECTION 6.07
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Parent Negative Covenants
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92
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SECTION 6.08
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Restrictive Agreements
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92
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SECTION 6.09
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Indebtedness
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93
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SECTION 6.10
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Management Fees
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93
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ARTICLE VII Events of Default
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93
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ARTICLE VIII The Administrative Agent
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97
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ARTICLE IX Miscellaneous
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99
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SECTION 9.01
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Notices
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99
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SECTION 9.02
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Waivers; Amendments
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102
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SECTION 9.03
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Expenses; Indemnity; Damage Waiver
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103
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SECTION 9.04
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Successors and Assigns
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105
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SECTION 9.05
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Survival
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108
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SECTION 9.06
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Counterparts; Integration; Effectiveness; Joint and Several
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109
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SECTION 9.07
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Severability
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110
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SECTION 9.08
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Right of Setoff
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110
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SECTION 9.09
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Governing Law; Jurisdiction; Consent to Service of Process
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110
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SECTION 9.10
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WAIVER OF JURY TRIAL
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111
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SECTION 9.11
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Headings
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111
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SECTION 9.12
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Confidentiality
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111
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SECTION 9.13
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Interest Rate Limitation
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112
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SECTION 9.14
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USA PATRIOT Act
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112
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SECTION 9.15
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Fiduciary Duty/No Conflicts
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112
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SECTION 9.16
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Acknowledgment and Consent to Bail-In of EEA Financial Institutions
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113
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SECTION 9.17
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ERISA Representations
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114
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SCHEDULES
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Schedule 2.01
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Commitments
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Schedule 3.05(f)
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Earthquake or Seismic Area
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Schedule 3.07
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Litigation Disclosure
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Schedule 3.15
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Subsidiaries
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Schedule 5.12
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Pool Properties
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SCHEDULES
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Exhibit A
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Form of Assignment and Acceptance
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Exhibit B
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Form of Compliance Certificate
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Exhibit C
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Form of Guaranty
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Exhibit D-1 to D-3
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Forms of Notes
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Exhibit E
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Form of Borrowing Request/Interest Rate Election
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Exhibit F
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Joinder Agreement
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Exhibit G
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Form of Borrowing Base Certificate
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Exhibit H-1 TO H-4
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Tax Compliance Forms
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT (“Agreement”)
dated as of
APRIL 30, 2019,
among
GRIFFIN CAPITAL ESSENTIAL ASSET OPERATING PARTNERSHIP, L.P. (successor by merger to Griffin Capital Essential Asset Operating Partnership II, L.P.)
as Borrower,
the LENDERS party hereto,
KEYBANK NATIONAL ASSOCIATION, as Administrative Agent,
KEYBANC CAPITAL MARKETS, MERRILL LYNCH, PIERCE, FENNER AND SMITH INCORPORATED OR ITS AFFILIATES, SUNTRUST ROBINSON HUMPHREY, INC., CAPITAL ONE, NATIONAL ASSOCIATION, U.S. BANK NATIONAL ASSOCIATION, WELLS FARGO SECURITIES, LLC, BMO CAPITAL MARKETS AND FIFTH THIRD BANK
as Joint Bookrunners and Joint Lead Arrangers
WHEREAS, Griffin Capital Essential Asset Operating Partnership II, L.P. has previously entered into the Existing Credit Agreement with KeyBank, as administrative agent, and certain lenders, pursuant to which the lenders party thereto agreed to extend certain commitments and make certain extensions of credit available thereto;
WHEREAS, pursuant to the transactions intended to be completed on or about the date of effectiveness of this Agreement and as further set forth in the Merger Agreement (as defined below), among other corporate restructuring matters:
1. Griffin Capital Essential Asset REIT, Inc. shall merge into Globe Merger Sub, LLC, a wholly owned Subsidiary of Griffin Capital Essential Asset REIT II, Inc., which shall result in Griffin Capital Essential Asset REIT, Inc. becoming a wholly owned subsidiary of Griffin Capital Essential Asset REIT II, Inc.; and
2. Griffin Capital Essential Asset Operating Partnership II, L.P. shall merge with Griffin Capital Essential Asset Operating Partnership, L.P., with Griffin Capital Essential Asset Operating Partnership, L.P. being the surviving entity and thereby by operation of law assuming all Indebtedness of Griffin Capital Essential Asset Operating Partnership II, L.P.; and
WHEREAS, the Borrower has requested and, on the terms and conditions contained herein, the Agent and the Lenders desire to make available to the Borrower certain term loan and revolving credit facilities on the terms and conditions contained herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereto agree to amend and restate the Existing Credit Agreement in its entirety as follows:
ARTICLE I
Definitions
SECTION 1.01
Defined Terms
. As used in this Agreement, the following terms have the meanings specified below:
“
2018 Preferred Documents
” means, collectively, (each dated, as applicable on or about August 8, 2018): (a) the Parent’s Fourth Articles of Amendment and Restatement, (b) the Parent’s Articles Supplementary Establishing and Fixing the Rights and Preferences of Series A Cumulative Perpetual Preferred Stock, and (c) Series A Cumulative Perpetual Preferred Stock Purchase Agreement entered into between the Parent and the 2018 Preferred Holder.
“
2018 Preferred Holder
” means SHBNPP Global Professional Investment Type Private Real Estate Trust No. 13(H), a real estate investment trust established under the laws of the Republic of Korea (acting through Kookmin Bank as trustee of SHBNPP Global Professional Investment Type Private Real Estate Trust No. 13(H) and its successors and assigns).
“
2023 Term Commitment
” means, with respect to each Lender, the commitment of such Lender to make 2023 Term Loans hereunder, expressed as an amount representing the maximum aggregate amount of such Lender's Term Loans hereunder, as such commitment may be reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04
. The initial amount of each Lender's 2023 Term Commitment is set forth on
Schedule 2.01
, or in the Assignment and Acceptance pursuant to which such Lender shall have assumed its 2023 Term Commitment, as applicable. As of the Effective Date, the aggregate amount of the Lenders’ 2023 Term Commitments is $200,000,000.00 and the aggregate amount of the Lenders’ unfunded 2023 Term Commitments is $77,000,000.00.
“
2023 Term Lender
” means, at any time, each Lender that has a 2023 Term Commitment.
“
2023 Term Loan
” shall mean that certain senior unsecured term loan made by Lenders to the Borrower in the amount of $200,000,000 in accordance with the terms and conditions of the Existing Credit Agreement, together with any additional 2023 Term Loans which may be made in accordance with the terms and conditions of
Section 2.09(d)
of this Agreement, as such amount may be adjusted pursuant to the terms of this Agreement.
“
2023 Term Loan Applicable Percentage
” means, as to each 2023 Term Lender, the ratio, expressed as a percentage, of (a) the aggregate amount of such 2023 Term Lender’s unfunded 2023
Term Commitment plus its 2023 Term Loans to (b) the aggregate amount of the unfunded 2023 Term Commitments and 2023 Term Loans of all 2023 Term Lenders;
provided
, however, that if at the time of determination the 2023 Term Commitments have terminated or been reduced to zero, the “2023 Term Loan Applicable Percentage” of each 2023 Term Lender shall mean the ratio, expressed as a percentage, of (i) the aggregate amount of the 2023 Term Loans of such 2023 Term Lender to (ii) the aggregate amount of the 2023 Term Loans of all 2023 Term Lenders.
“
2023 Term Loan Maturity Date
” shall have the meaning set forth in
Section 2.09(b)
.
“
2024 Term Commitment
” means, with respect to each Lender, the commitment of such Lender to make 2024 Term Loans hereunder, expressed as an amount representing the maximum aggregate amount of such Lender's Term Loans hereunder, as such commitment may be reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04
. The initial amount of each Lender's 2024 Term Commitment is set forth on
Schedule 2.01
, or in the Assignment and Acceptance pursuant to which such Lender shall have assumed its Term Commitment, as applicable. The initial aggregate amount of the Lenders’ 2024 Term Commitments is $400,000,000.00.
“
2024 Term Lender
” means, at any time, each Lender that has a 2024 Term Commitment.
“
2024 Term Loan
” shall mean that certain senior unsecured term loan made by Lenders to the Borrower in the amount of $400,000,000 in accordance with the terms and conditions of this Agreement, together with any additional 2024 Term Loans which may be made in accordance with the terms and conditions of Section 2.09(d) of this Agreement, as such amount may be adjusted pursuant to the terms of this Agreement.
“
2024 Term Loan Applicable Percentage
” means, as to each 2024 Term Lender, the ratio, expressed as a percentage, of (a) the aggregate amount of such 2024 Term Lender’s 2024 Term Commitment to (b) the aggregate amount of the 2024 Term Commitments of all 2024 Term Lenders; provided, however, that if at the time of determination the 2024 Term Commitments have terminated or been reduced to zero, the “2024 Term Loan Applicable Percentage” of each 2024 Term Lender shall mean the ratio, expressed as a percentage, of (i) the aggregate amount of the 2024 Term Loans of such 2024 Term Lender to (ii) the aggregate amount of the 2024 Term Loans of all 2024 Term Lenders.
“
2024 Term Loan Maturity Date
” shall have the meaning set forth in
Section 2.09(c)
.
“
2026 Term Commitment
” means, with respect to each Lender, the commitment of such Lender to make 2026 Term Loans hereunder, expressed as an amount representing the maximum aggregate amount of such Lender's Term Loans hereunder, as such commitment may be reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04
. The initial amount of each Lender's 2026 Term Commitment is set forth on
Schedule 2.01
, or in the Assignment and Acceptance pursuant to which such Lender shall have assumed its 2026 Term Commitment, as applicable. The initial aggregate amount of the Lenders’ 2026 Term Commitments is $150,000,000.00.
“
2026 Term Lender
” means, at any time, each Lender that has a 2026 Term Commitment.
“
2026 Term Loan
” shall mean that certain senior unsecured term loan made by Lenders to the Borrower in the amount of $150,000,000 in accordance with the terms and conditions of the Existing Credit Agreement and this Agreement, together with any additional 2026 Term Loans which may be made in accordance with the terms and conditions of Section 2.09(d) of this Agreement, as such amount may be adjusted pursuant to the terms of this Agreement.
“
2026 Term Loan Applicable Percentage
” means, as to each 2026 Term Lender, the ratio, expressed as a percentage, of (a) the aggregate amount of such 2026 Term Lender’s 2026 Term Commitment to (b) the aggregate amount of the 2026 Term Commitments of all 2026 Term Lenders; provided, however, that if at the time of determination the 2026 Term Commitments have terminated or been reduced to zero, the “2026 Term Loan Applicable Percentage” of each 2026 Term Lender shall mean the ratio, expressed as a percentage, of (i) the aggregate amount of the 2026 Term Loans of such 2026 Term Lender to (ii) the aggregate amount of the 2026 Term Loans of all 2026 Term Lenders.
“
2026 Term Loan Maturity Date
” shall have the meaning set forth in
Section 2.09(d)
.
“
ABR
” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate.
“
Adjusted EBITDA
” means, for a given testing period, EBITDA less the Capital Expenditure Reserve.
“
Adjusted LIBO Rate
” means, with respect to any Eurodollar Borrowing for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.
“
Administrative Agent
” means KeyBank National Association, in its capacity as administrative agent for the Lenders hereunder.
“
Administrative Questionnaire
” means an Administrative Questionnaire in a form supplied by the Administrative Agent.
“
Affiliate
” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
“
Alternate Base Rate
” means, for any day, a rate per annum equal to the greater of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective from and including the effective date of such change in the Prime Rate or the Federal Funds Effective Rate, respectively.
“
Anti-Corruption Laws
” means all Legal Requirements of any jurisdiction concerning or relating to bribery or corruption, including without limitation, the Foreign Corrupt Practices Act of 1977.
“
Anti-Money Laundering Laws
” means all Legal Requirements related to the financing of terrorism or money laundering, including without limitation, any applicable provision of the Patriot Act and The Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act,” 31 U.S.C. §§ 5311-5330 and 12U.S.C. §§ 1818(s), 1820(b) and 1951-1959).
“
Applicable Percentage
” means, with respect to any Lender, the percentage of the Total Commitments represented by such Lender's Commitment. If the Commitments have terminated or expired, the Applicable Percentages shall be determined based upon the Commitments most recently in effect, giving effect to any assignments.
“
Applicable Rate
” means, from time to time, with respect to a particular Class and Type of Loans, (a) subject to clause (b) below, the percentage rate set forth in the immediately following table corresponding to the Consolidated Leverage Ratio as set forth in the Compliance Certificate most recently delivered by the Borrower pursuant to
Section 5.01(c)
. Any adjustment to the Applicable Rate shall be effective as of the first day of the calendar quarter immediately following the quarter during which the Borrower delivers to the Agent the applicable Compliance Certificate pursuant to
Section 5.01(c)
(with the Compliance Certificate for the most recently ended reporting period delivered during a subject quarter taking precedence over a Compliance Certificate for a prior reporting period delivered during the same quarter). If the Borrower fails to deliver a Compliance Certificate pursuant to
Section 5.01(c)
, the Applicable Rate shall equal the percentages corresponding to Level 5 until the first day of the calendar quarter immediately following the quarter that the required Compliance Certificate is delivered. Notwithstanding the foregoing, for the period from the Effective Date through but excluding the date on which the Agent first determines the Applicable Rate for Loans as provided above, the Applicable Rate shall be determined based on Level 1:
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Level
|
Consolidated Leverage Ratio
|
Applicable Rate for Revolving Loans which are Eurodollar Loans
|
Applicable Rate for Revolving Loans which are Alternate Base Rate Loans
|
Applicable Rate for 2023 and 2024 Term Loans which are Eurodollar Loans
|
Applicable Rate for 2023 and 2024 Term Loans which are Alternate Base Rate Loans
|
Applicable Rate for 2026 Term Loans which are Eurodollar Loans
|
Applicable Rate for 2026 Term Loans which are Alternate Base Rate Loans
|
|
1
|
Less than 45%
|
1.30%
|
.30%
|
1.25%
|
.25%
|
1.65%
|
.65%
|
|
2
|
Greater than or equal to 45% but less than 50%
|
1.45%
|
.45%
|
1.40%
|
.40%
|
1.75%
|
.75%
|
|
3
|
Greater than or equal to 50% but less than 55%
|
1.60 %
|
.60%
|
1.55 %
|
.55%
|
1.85 %
|
.85%
|
|
4
|
Greater than or equal to 55% but less than 60%
|
1.90%
|
.90%
|
1.85%
|
.85%
|
2.20%
|
1.20%
|
|
5
|
Greater than or equal to 60%
|
2.20%
|
1.20%
|
2.15%
|
1.15%
|
2.50%
|
1.50%
|
The Applicable Rate shall be adjusted quarterly as of the first day of the calendar quarter immediately following the quarter during which the Borrower delivers to the Agent the applicable Compliance Certificate pursuant to
Section 5.01(c)
. Notwithstanding anything to the contrary contained in this definition, the determination of the Applicable Rate for any period shall be subject to the provisions of
Section 2.17(f)
.
(b) If Borrower obtains an Investment Grade Rating from at least one of S&P, Moody’s or Fitch, and provided that no Event of Default is then occurring, at Borrower’s irrevocable election, the Applicable Rate shall thereafter at all times be determined based on the applicable rate per annum set forth in the below table corresponding to the level (each a “Pricing Level”) into which such Debt Rating then falls, notwithstanding any failure of Borrower to maintain an Investment Grade Rating or any failure of Borrower to maintain a Debt Rating.
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Investment Grade Rating
|
Applicable Rate for Revolving Loans which are Eurodollar Loans
|
Revolver Facility Fee Rate
|
Applicable Rate for Revolving Loans which are Alternate Base Rate Loans
|
Applicable Rate for 2023 and 2024 Term Loans which are Eurodollar Loans
|
Applicable Rate for 2023 and 2024 Term Loans which are Alternate Base Rate Loans
|
Applicable Rate for 2026 Term Loans which are Eurodollar Loans
|
Applicable Rate for 2026 Term Loans which are Alternate Base Rate Loans
|
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Pricing Level 1
At least A- or A3
|
0.825%
|
.125%
|
0.000%
|
0.900%
|
0.000%
|
1.400%
|
0.400%
|
|
Pricing Level 2
At least BBB+ or Baa1
|
0.875%
|
.150%
|
0.000%
|
0.950%
|
0.000%
|
1.450%
|
0.450%
|
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Pricing Level 3
At least BBB or Baa2
|
1.000%
|
.200%
|
0.000%
|
1.100%
|
0.100%
|
1.550%
|
0.550%
|
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Pricing Level 4
At least BBB- or Baa3
|
1.200%
|
.250%
|
0.200%
|
1.350%
|
0.350%
|
1.800%
|
0.800%
|
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Pricing Level 5
Below BBB-, Baa3 or unrated
|
1.550%
|
.30%
|
0.550%
|
1.750%
|
0.750%
|
2.350%
|
1.350%
|
Each change in the Applicable Rate resulting from a change in the Debt Rating of Borrower shall be effective for the period commencing on the effective date of such change and ending on the date immediately preceding the effective date of the next such change. Notwithstanding the above, during any period for which the Borrower has received three Debt Ratings which are not equivalent, the Applicable Rate will be determined by (a) the highest Debt Rating if they differ by only one level and (b) the average of the two highest Debt Ratings if they differ by two or more levels (unless the average is not a recognized level, in which case the Applicable Rate will be based on the level corresponding to the second highest Debt Rating). During any period for which the Borrower has received only two Debt Ratings and such Debt Ratings are not equivalent, the Applicable Rate will be determined by (1) the highest Debt Rating if they differ by only one level and (ii) the median of the two Debt Ratings if they differ by two or more levels (unless the median is not a recognized level, in which case the Applicable Rate will be based on the Debt Rating one level below the level corresponding to the higher Debt Rating). During any period for which the Borrower has received a Debt Rating from only one Rating Agency, the Applicable Rate shall be determined based on such Debt Rating so long as such Debt Rating is from S&P or Moody's. During any period for which the Borrower does not have a Debt Rating from any Rating Agency, or during any other period not otherwise covered by this definition, the Applicable Rate shall be determined based on Level 5.
“
Approved Fund
” has the meaning set forth in
Section 9.04(b)
.
“
Assets Under Development
” means all Real Property, or phases thereof, that is under construction or development as an income-producing project in a diligent manner and in accordance with industry standard construction schedules, but for which a certificate of occupancy has not been issued.
“
Assets Under Renovation
” means all Real Property, or phases thereof, for which the improvements have previously been completed, but with respect to which (i) a renovation of twenty-five percent (25%) or more of the square footage of such improvements is being undertaken, or (ii) other material renovation work is being undertaken to reposition or re-tenant the Real Property as determined by Administrative Agent, and any such renovation work is proceeding in a diligent manner and in accordance with industry standard construction schedules; provided that in no event shall any such Real Property remain an Asset Under Renovation for a period of greater than twelve (12) months.
“
Assignment and Acceptance
” means an assignment and acceptance entered into by a Lender and an assignee (with the consent of any party whose consent is required by
Section 9.04
), and accepted by the Administrative Agent, in the form of
Exhibit A
or any other form approved by the Administrative Agent.
“
Availability Period
” means the period from and including the Effective Date to but excluding the Revolving Loan Maturity Date.
“
Bail-In Action
” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“
Bail-In Legislation
” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
“
Beneficial Ownership Certification
” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation, which certification shall be substantially similar in form and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association.
“
Beneficial Ownership Regulation
” means 31 C.F.R. § 1010.230.
“
Benefit Plan
” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) 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”.
“
Board
” means the Board of Governors of the Federal Reserve System of the United States of America.
“
Borrower
” means Griffin Capital Essential Asset Operating Partnership, L.P. (successor by merger to Griffin Capital Essential Asset Operating Partnership II, L.P.), a Delaware limited partnership.
“
Borrower Materials
” has the meaning set forth in
Section 9.01
.
“
Borrowing
” means (a) Loans of the same Class and Type, made, converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect, or (b) a Swingline Loan.
“
Borrowing Base Availability
” means, as adjusted from time to time pursuant to the terms hereof, the following: the lesser of (a) a Loan amount such that the Unsecured Leverage Ratio would not exceed sixty percent (60%); or (b) a Loan amount which would provide an Unsecured Interest Coverage Ratio of no less than 2.00:1.00.
“
Borrowing Base Certificate
” has the meaning set forth in
Section 5.01(c)
hereof and a form of which is attached hereto as
Exhibit G
.
“
Borrowing Request
” means a request by the Borrower for a Borrowing in accordance with
Section 2.03
.
“
Business Day
” means any day that is not a Saturday, Sunday or other day on which commercial banks in Boston, Massachusetts or New York, New York are authorized or required by law to remain closed;
provided
that, when used in connection with a Eurodollar Loan, the term “
Business Day
” shall also exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market.
“
Capital Expenditure Reserve
” means, on an annual basis, an amount equal to $0.25 per square foot for each office property owned by Borrower, a Subsidiary Guarantor, or the Parent (or a Subsidiary thereof) and $0.10 per square foot for each industrial property owned by Borrower, a Subsidiary Guarantor, or the Parent (or a Subsidiary thereof).
“
Capital Lease Obligations
” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
“
Change in Control
” means (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the date hereof), of shares representing more than fifty percent (50%) of the aggregate ordinary voting power represented by the issued and outstanding capital stock of the Parent; (b) occupation of a majority of the seats (other than vacant seats) on the board of directors of the Parent by Persons who were neither (i) nominated by the board of directors of the Parent nor (ii) appointed by directors so nominated; (c) the acquisition of direct or indirect Control of the Parent by any Person or group;
or (d) the failure of the OP to own, directly or indirectly, free and clear of any Liens, 100% of the ownership interests in each Subsidiary Guarantor; for purposes of clarity an IPO by the Parent shall be permitted hereunder as long as such IPO does not result in a Change in Control.
“
Change in Law
” means (a) the adoption or taking effect of any law, rule or regulation after the date of this Agreement by any Governmental Authority, (b) any change in any law, rule, treaty or regulation or in the interpretation or application thereof by any Governmental Authority after the date of this Agreement or (c) compliance by any Lender or the Issuing Bank (or, for purposes of
Section 2.14(b)
, by any lending office of such Lender or by such Lender's or the Issuing Bank's holding company, if any) with any request, rule, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement. Notwithstanding anything herein to the contrary, (a) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (b) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
“
Class
” means (a) when used with respect to a Commitment, refers to whether such Commitment is a Revolving Commitment, 2023 Term Commitment, 2024 Term Commitment, and/or 2026 Term Commitment, (b) when used with respect to a Loan, refers to whether such Loan is a Revolving Loan, a 2023 Term Loan, a 2024 Term Loan, or a 2026 Term Loan and (c) when used with respect to a Lender, refers to whether such Lender has a Loan or Commitment with respect to a particular Class of Loans or Commitments.
“
Code
” means the Internal Revenue Code of 1986, as amended from time to time.
“
Commitment
” means, with respect to each Lender, the aggregate amount of such Lender’s Revolving Commitment, 2023 Term Commitment, 2024 Term Commitment, and/or 2026 Term Commitment.
“
Compliance Certificate
” has the meaning set forth in
Section 5.01(c)
hereof and a form of which is attached hereto as
Exhibit B
.
“
Connection Income Taxes
” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“
Consolidated Leverage Ratio
” means the ratio (expressed as a percentage) of (a) the Indebtedness of Borrower, Parent and their direct and indirect subsidiaries (without duplication) to (b) Total Asset Value.
“
Control
” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise, which includes the customary powers of a managing member of
any limited liability company, any general partner of any limited partnership, or any board of directors of a corporation. “
Controlling
” and “
Controlled
” have meanings correlative thereto.
“
Core Funds from Operations
” means for a given period, Parent’s net income (or loss) determined on a consolidated basis in accordance with GAAP (unless otherwise indicated herein) for such period (after payment of any amounts by the Borrower under the 2018 Preferred Documents), excluding gains or losses from extraordinary items, impairment and other non-cash charges, acquisition fees and related expenses, plus real estate depreciation and amortization. Core Funds from Operations will be adjusted for (i) unconsolidated entities to reflect funds from operations on the same basis, (ii) the impact of straight-lining of rents, (iii) the amortization of intangibles associated with the amortization of above or below market rents, pursuant to ASC 805 (formerly FASB 141) and calculation of interest expense in accordance with FBS APB 14-1.
“
Credit Party
” means the Borrower and each Guarantor.
“
Debt Rating
” means, as of any date of determination, the rating as determined by a Rating Agency of a Person’s non credit enhanced, senior unsecured long term debt. The Debt Rating in effect at any date is the Debt Rating that is in effect at the close of business on such date.
“
Debtor Relief Laws
” means any applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, insolvency, fraudulent conveyance, reorganization, or similar laws affecting the rights, remedies, or recourse of creditors generally, including without limitation the Bankruptcy Code and all amendments thereto, as are in effect from time to time during the term of this Agreement.
“
Default
” means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.
“
Defaulting Lender
” means any Lender that: (a) has failed to perform any of its funding obligations hereunder, including in respect of its Commitment or participations in respect of Letters of Credit or Swingline Loans, within two (2) Business Days of the date required to be funded by it hereunder; (b) has notified the Borrower or Administrative Agent that it does not intend to comply with its funding obligations or has made a public statement to that effect with respect to its funding obligations hereunder (unless such notification or public statement relates to such Lender’s obligation to fund a Loan or participations in respect of Letters of Credit or Swingline Loans hereunder and indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular Default, if any) to funding a Loan or participations in respect of Letters of Credit or Swingline Loans is not or cannot be satisfied) or under other agreements generally in which it commits to extend credit; (c) has failed, within two (2) Business Days after written request by the Administrative Agent or the Borrower (and the Administrative Agent has received a copy of such request), to confirm in a manner reasonably satisfactory to the Administrative Agent that it will comply with its funding obligations hereunder; (d) has, or has a direct or indirect parent company that has: (i) become the subject of a proceeding under any Debtor Relief Law; (ii) had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it; or (iii) in the good faith determination of the
Administrative Agent, taken any material action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment; or (e) become the subject of a Bail-In Action;
provided
that
a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority;
provided
,
further
, that 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 by such Lender.
“
Designated Jurisdiction
” means any country, region, or territory to the extent that such country, region, or territory itself, or its government, is the subject or target of any Sanction.
“
Dollars
” or “
$
” refers to lawful money of the United States of America.
“
EBITDA
” means an amount derived from (a) net income, plus (b) to the extent included in the determination of net income, depreciation, amortization, interest expense and income taxes, plus (c) to the extent expressly subordinated to the Loans, the subordinated portion of all asset management and property management fees plus (d) property acquisition fees and related expenses, plus or minus (e) to the extent included in the determination of net income, any extraordinary losses or gains, such as those resulting from sales or payment of Indebtedness, in each case, as determined on a consolidated basis in accordance with GAAP (unless otherwise indicated herein), plus or minus (f) to the extent included in GAAP net income, any net income from non-cash items, such as straight line rent and amortization of in-place lease valuation, and including (without duplication) the Equity Percentage of EBITDA for the Parent's non-wholly owned direct and indirect subsidiaries, plus (g) to the extent not already accounted for in the determination of net income, early lease termination payments as follows: (i) for a lump sum early termination payment, an amount properly allocated to the determination period in question based upon equal monthly installments of such early termination payment amortized over the remaining lease term at the time of termination and (ii) for early termination payments paid over a period of time, the amount paid or payable for the determination period in question. In no event shall EBITDA include early termination payments: (x) related to any tenant space whereby rental or other income from a replacement tenant is already included in EBITDA, or (y) to the extent such early termination payments exceed ten percent (10%) of EBITDA unless a greater percentage is approved by the Majority Lenders.
“
EEA Financial Institution
” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“
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 specified in
Section 4.01
are satisfied (or waived in accordance with
Section 9.02
).
“
Environmental Assessment
” shall mean a written assessment and report approved by the Administrative Agent as to the status of any Pool Properties regarding compliance with any Legal Requirements related to environmental matters and accompanied by a reliance letter satisfactory to the Administrative Agent. Each Environmental Assessment must comply with all Legal Requirements.
“
Environmental Claim
” means any notice of violation, action, claim, Environmental Lien, demand, abatement or other order or direction (conditional or otherwise) by any Governmental Authority or any other Person for personal injury (including sickness, disease or death), tangible or intangible property damage, damage to the environment, nuisance, pollution, contamination or other adverse effects on the environment, or for fines, penalties or restriction, resulting from or based upon (i) the existence, or the continuation of the existence, of a Release (including, without limitation, sudden or non-sudden accidental or non-accidental Releases) of, or exposure to, any Hazardous Material, or other Release in, into or onto the environment (including, without limitation, the air, soil, surface water or groundwater) at, in, by, from or related to any property owned, operated or leased by the Borrower or any of its Subsidiaries or any activities or operations thereof; (ii) the environmental aspects of the transportation, storage, treatment or disposal of Hazardous Materials in connection with any property owned, operated or leased by the Borrower or any of its Subsidiaries or their operations or facilities; or (iii) the violation, or alleged violation, of any Environmental Laws or Environmental Permits of or from any Governmental Authority relating to environmental matters connected with any property owned, leased or operated by the Borrower or any of its Subsidiaries.
“
Environmental Laws
” means all applicable laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the management, release or threatened release of any Hazardous Material or to health and safety matters and includes (without limitation) the Comprehensive Environmental Response, Compensation, and Liability Act (“
CERCLA”
), 42 U.S.C. § 9601
et
seq
., the Hazardous Materials Transportation Act, 49 U.S.C. § 1801
et
seq
., the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136
et
seq
., the Resource Conservation and Recovery Act (“
RCRA”
), 42 U.S.C. § 6901
et
seq
., the Toxic Substances Control Act, 15 U.S.C. § 2601
et
seq
., the Clean Air Act, 42 U.S.C. §7401
et
seq
., the Clean Water Act, 33 U.S.C. § 1251
et
seq
., the Occupational Safety and Health Act, 29 U.S.C. § 651
et
seq
., (to the extent the same relates to any Hazardous Materials), and the Oil Pollution Act of 1990, 33 U.S.C. § 2701
et
seq
., as such laws have been amended or supplemented, and the regulations promulgated pursuant thereto, and all analogous state and local statutes.
“
Environmental Liability
” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) exposure to any Hazardous Materials in violation of any Environmental Law, (c) the Release or threatened Release of any Hazardous Materials into the environment in violation of any Environmental Law or (d) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“
Environmental Lien
” means any lien in favor of any Governmental Authority arising under any Environmental Law.
“
Environmental Permit
” means any permit required under any applicable Environmental Law or under any and all supporting documents associated therewith.
“
Equity Interests
” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination to the extent any of the foregoing relate to a Pool Property.
“
Equity Percentage
” means the aggregate ownership percentage of Borrower in each Unconsolidated Affiliate, which shall be calculated as the greater of (a) Borrower’s nominal capital ownership interest in the Unconsolidated Affiliate as set forth in the Unconsolidated Affiliate’s organizational documents, and (b) Borrower’s economic ownership interest in the Unconsolidated Affiliate, reflecting Borrower’s share of income and expenses of the Unconsolidated Affiliate.
“
ERISA
” means the Employee Retirement Income Security Act of 1974, as amended from time to time.
“
ERISA Affiliate
” means any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.
“
ERISA Event
” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) the existence with respect to any Plan of an “accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any notice concerning the imposition of Withdrawal Liability against the Borrower or any ERISA Affiliate, or that a determination has been made that a Multiemployer Plan in which the Borrower or any ERISA Affiliate participates or to which the Borrower or any ERISA Affiliate is obligated to contribute, is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.
“
EU Bail-In Legislation Schedule
” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“
Eurodollar
,” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Adjusted LIBO Rate.
“
Event of Default
” has the meaning assigned to such term in
Article VII
.
“
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 its Commitment pursuant to Legal Requirements in effect on the date on which (i) such Lender acquires such interest in the Loan or its Commitment (other than pursuant to an assignment request by the Borrower under SECTION 2.18(b) as a result of costs sought to be reimbursed pursuant to SECTION 2.16 or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to SECTION 2.16, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with SECTION 2.16 and (d) any U.S. federal withholding Taxes imposed under FATCA.
“
Existing Credit Agreement
” means that (i) certain Amended and Restated Credit Agreement dated as of June 28, 2018, as amended through the date hereof, by and among Griffin Capital Essential Asset Operating Partnership II, L.P. (which will merge into the OP pursuant to the Merger), the institutions from time to time party thereto as Lenders and KeyBank, as administrative agent, and (ii) the agreements, instruments and other documents executed in connection with such credit agreement.
“
Facility Fee
” has the meaning given that term in
Section 2.11(b)
.
“
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) and any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.
“
Federal Funds Effective Rate
” means, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.
“
Financial Officer
” means the chief financial officer or the chief accounting officer of the Parent.
“
Fitch
” means Fitch, Inc., and its successors.
“
Fixed Charge Coverage Ratio
” means the ratio of, for the Parent, the Borrower and their Subsidiaries on a consolidated basis (without duplication) (a) Adjusted EBITDA for the immediately preceding calendar quarter; to (b) all of the principal due and payable and principal paid on the Indebtedness (other than amounts paid in connection with balloon maturities, principal prepayments under the Revolving Loans and any other unscheduled principal payments), plus all Interest Expense, plus the aggregate of all cash dividends payable on any preferred stock (including any paid under the 2018 Preferred Documents).
“
Foreign Lender
” means, if the Borrower is a U.S. Person, a Lender that is not a U.S. Person, and if the Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which such Borrower is resident for tax purposes.
“
GAAP
” means generally accepted accounting principles in the United States of America, subject to the provisions of
Section 1.04
.
“
GCEAR Credit Agreement
” means that certain Credit Agreement dated as of July 20, 2015, by and among, the OP, as borrower, KeyBank National Association, as administrative agent, and the lenders party thereto from time to time, as the same has been amended, restated, supplemented, or otherwise modified from time to time.
“
Governmental Authority
” means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
“
Guarantee
” of or by any Person (the “
guarantor
”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “
primary obligor
”) in any manner, whether
directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation;
provided
, that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business.
“
Guarantor
” means the Parent,
and any other Person who from time to time becomes a Subsidiary Guarantor as required by
Section 5.13
, and any other Person who from time to time has executed a Guaranty as required by the terms of this Agreement.
“
Guaranty
” means a guaranty in the form of
Exhibit C
attached hereto.
“
Hazardous Materials
” means all explosive or radioactive substances or wastes and all hazardous or toxic substances or wastes, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law; provided, that Hazardous Materials shall not include any such substances or wastes utilized or maintained at the Real Property in the ordinary course of business and in accordance with all applicable Environmental Laws.
“
Hedging Agreement
” means any interest rate protection agreement, foreign currency exchange agreement, commodity price protection agreement or other interest or currency exchange rate or commodity price hedging arrangement.
“
Hedging Obligations
” means, with respect to the Parent, the Borrower or any Subsidiary of the Parent or the Borrower, any obligations arising under any Hedging Agreement entered into with the Administrative Agent or any Lender with respect to the Loans.
“
Impacted Interest Period
” has the meaning set forth in the definition of LIBO Rate.
“
Indebtedness
” of any Person means, without duplication, (a) all obligations of such Person for borrowed money or with respect to deposits or advances of any kind, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, including mandatorily redeemable preferred stock (provided, however, that the “Series A Preferred Stock” (as defined in the 2018 Preferred Documents), shall not be deemed Indebtedness), (c) all obligations of such Person upon which interest charges are customarily paid, (d) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (e) all obligations of such Person in respect of the deferred purchase price of property or services (excluding current accounts payable incurred in the ordinary course of business), (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether
or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person of Indebtedness of others (excluding non-recourse carve-out guarantees until such time as a claim has been filed for breach thereof), (h) all Capital Lease Obligations of such Person, (i) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (j) all obligations, contingent or otherwise, of such Person in respect of bankers' acceptances and (k) all obligations contingent or otherwise, of such Person with respect to any Hedging Agreements (calculated on a mark-to-market basis as of the reporting date). The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person's ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor. Indebtedness shall be calculated on a consolidated basis in accordance with GAAP, and including (without duplication) Borrower's Equity Percentage of Indebtedness for non-wholly owned subsidiaries.
“
Individual Property
” and “
Individual Properties
” shall mean, from time to time, all real estate property owned or ground leased by the Borrower or any Subsidiary Guarantor, together with all improvements, fixtures, equipment, and personalty relating to such property.
“
Indemnified Taxes
” means (a) Taxes other than Excluded Taxes, and (b) to the extent not otherwise described in (a), Other Taxes.
“
Interest Election Request
” means a request by the Borrower to convert or continue a Borrowing in accordance with
Section 2.07
.
“
Interest Expense
” shall mean all of a Person's paid, accrued or capitalized interest expense on such Person's Indebtedness (whether direct, indirect or contingent, and including, without limitation, interest on all convertible debt), and including (without duplication) the Equity Percentage of Interest Expense for the Borrower's (or the Parent’s) Unconsolidated Affiliates.
“
Interest Payment Date
” means the first Business Day of each calendar quarter.
“
Interest Period
” means with respect to any Eurodollar Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, two or three months thereafter;
provided
, that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless, in the case of a Eurodollar Borrowing only, such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day and (b) any Interest Period pertaining to a Eurodollar Borrowing that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and, in the case of a Borrowing, thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.
“
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 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 Rate for the longest period for which the LIBO Rate is available that is shorter than the Impacted Interest Period; and (b) the LIBO Rate for the shortest period for which that LIBO Rate is available that exceeds the Impacted Interest Period, in each case, at such time.
“
Investment Grade Rating
” means a Debt Rating of BBB- or better from S&P or Fitch, or Baa3 or better from Moody’s.
“
IPO
” means the initial public offering of the Parent’s common Equity Interests, resulting in such common Equity Interests being traded on the New York Stock Exchange or NASDAQ.
“
Issuing Bank
” means KeyBank National Association, in its capacity as the issuer of Letters of Credit hereunder, and its successors in such capacity as provided in
Section 2.05(i)
. The Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of the Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.
“
KeyBank
” means KeyBank National Association, in its individual capacity.
“
LC Disbursement
” means a payment made by the Issuing Bank pursuant to a Letter of Credit.
“
LC Exposure
” means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any Revolving Lender at any time shall be its Revolving Loan Applicable Percentage of the total LC Exposure at such time.
“
Legal Requirement
” means any law, statute, ordinance, decree, requirement, order, judgment, rule, regulation (or interpretation of any of the foregoing) of, and the terms of any license or permit issued by, any Governmental Authority.
“
Lenders
” means the Persons listed on
Schedule 2.01
and any other Person that shall have become a party hereto pursuant to an Assignment and Acceptance, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Acceptance. Unless the context otherwise requires, the term “Lender” includes the Swingline Lender.
“
Letter of Credit
” means any letter of credit issued pursuant to this Agreement.
“
LIBO Rate
” means, for any Interest Period with respect to a Eurodollar Loan, 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 pages LIBOR01 or LIBOR02 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 “LIBOR Screen Rate”) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period; provided that (i) if the LIBOR Screen Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement; provided further that if the LIBOR Screen Rate shall not be available at such time for such Interest Period (an “Impacted Interest Period”) then the LIBO 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, and (ii) if no such rate administered by ICE Benchmark Administration (or by such other Person that has taken over the administration of such rate for U.S. Dollars) is available to the Administrative Agent, the applicable LIBO Rate for the relevant Interest Period shall instead be the rate determined by the Administrative Agent to be the rate at which KeyBank or one of its Affiliate banks offers to place deposits in U.S. dollars with first class banks in the London interbank market at approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period, in the approximate amount of the relevant Eurodollar Loan and having a maturity equal to such Interest Period.
“
LIBOR Screen Rate
” is defined in the definition of LIBO Rate.
“
Lien
” means, with respect to an asset, (a) any mortgage, deed of trust, lien (statutory or other), pledge, hypothecation, negative pledge, collateral assignment, encumbrance, deposit arrangement, charge or security interest in, on or of such asset; (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset; (c) the filing under the Uniform Commercial Code or comparable law of any jurisdiction of any financing statement naming the owner of the asset to which such Lien relates as debtor; (d) any other preferential arrangement of any kind or nature whatsoever intended to assure payment of any Indebtedness or other obligation; and (e) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities, including any dividend reinvestment or redemption plans.
“
Loan Documents
” means this Agreement, the Notes, each Guaranty, and all other instruments, agreements and written obligations executed and delivered by any of the Credit Parties in connection with the transactions contemplated hereby.
“
Loans
” means the loans made by the Lenders to the Borrower pursuant to this Agreement, including, without limitation, each Revolving Loan, Term Loan, and Swingline Loan.
“
Majority Lenders
” means, as of any date of determination, Lenders having more than 50% of the Total Commitments or, if the Commitment of each Lender to make any Class of Loans, the commitment of each Swingline Lender to make Swingline Loans, and the obligation of the Issuing Bank to issue Letters of Credit have been terminated pursuant to
Article VII
, Lenders holding in the aggregate more than 50% of such remaining Total Commitments and such Obligations (including the aggregate amount of each Lender’s risk participation and funded participation in LC Exposure and Swingline Loans);
provided
that the Commitment of, and the portion of the Obligations held
or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Majority Lenders.
“
Majority Class Lenders
” means, as of any date of determination, with respect to any Class of Lenders, Lenders having more than 50% of the aggregate Commitments of such Class or, if the Commitments of such Class of each Lender of such Class to make Loans, and, if applicable as to the Revolving Loans, the commitment of each Swingline Lender to make Swingline Loans, and the obligation of the Issuing Bank to issue Letters of Credit have been terminated pursuant to Article VII, Lenders holding in the aggregate more than 50% of the aggregate Revolving Credit Exposure (including the aggregate amount of each Lender’s risk participation and funded participation in LC Exposure and Swingline Loans) or Term Loans of such Class;
provided
that the Commitment of, and the portion of the Obligations held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Majority Class Lenders.
“
Management Company
” means, collectively, Griffin Capital Essential Asset Property Management, LLC, Griffin Capital Essential Asset Property Management II, LLC, Griffin Capital Essential Asset Advisor, LLC and/or Griffin Capital Essential Asset Advisor II, LLC.
“
Material Acquisition
” means an acquisition of assets with a total cost that is more than the greater of (a) 10% of Total Asset Value based upon the most recent compliance certificate submitted prior to such acquisition, or (b) one hundred million dollars ($100,000,000.00).
“
Material Adverse Effect
” means a material adverse effect on (a) the business, assets, operations, or condition, financial or otherwise, of (i) the Borrower and its Subsidiaries, other than owners of Pool Properties, and the Parent, taken as a whole, or (ii) any owner of a Pool Property, (b) the ability of any of the Credit Parties to perform their obligations under the Loan Documents or (c) the rights of or benefits available to the Administrative Agent or the Lenders under the Loan Documents.
“
Material Contract
” means any contract or other arrangement (other than Loan Documents), whether written or oral, to which any Credit Party is a party as to which the breach, nonperformance, cancellation or failure to renew by any party thereto could reasonably be expected to have a Material Adverse Effect.
“
Maturity Date
” means any of the Revolving Loan Maturity Date, the 2023 Term Loan Maturity Date, the 2024 Term Loan Maturity Date, or the 2026 Term Loan Maturity Date, as the context of this Agreement requires.
“
Maximum Loan Available Amount
” means, on any date, an amount equal to the lesser of (a) the Total Commitments or (b) the aggregate Borrowing Base Availability.
“
Maximum Rate
” shall have the meaning set forth in
Section 9.13
.
“
Merger
” means the contemplated merger by and among Griffin Capital Essential Asset REIT, Inc., Griffin Capital Essential Asset Operating Partnership, L.P., Borrower, Parent and Globe Merger Sub, LLC as described in Parent’s December 20, 2018 8-K filing.
“
Merger Agreement
” means the Agreement and Plan of Merger, dated as of December 14, 2018, by and among Griffin Capital Essential Asset REIT, Inc., Griffin Capital Essential Asset Operating Partnership, L.P., Borrower, Parent and Globe Merger Sub, LLC, as the same may be amended, amended and restated, restated, supplemented, modified or otherwise in effect from time to time in accordance with this Agreement.
“
Merger Documents
” means the Merger Agreement and all other agreements and documents relating to the Merger.
“
Moody’s
” means Moody’s Investors Service, Inc., and its successors.
“
Multiemployer Plan
” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
“
Net Operating Income
” shall mean, for any income producing operating Real Property, the difference between (a) any rentals, proceeds and other income received from such property,
less
(b) an amount equal to all costs and expenses (excluding Interest Expense, depreciation and amortization expense, and any expenditures that are capitalized in accordance with GAAP) incurred as a result of, or in connection with, or properly allocated to, the operation or leasing of such property during the determination period,
less
(c) the Capital Expenditure Reserve. Net Operating Income shall be calculated based upon the immediately preceding calendar quarter, annualized, unless the Real Property is being simultaneously acquired by the Borrower or a Subsidiary and added as a Pool Property, in which event annualized Net Operating Income shall be calculated based upon the historical data provided by the Borrower, subject to adjustment by the Administrative Agent in its reasonable discretion, and thereafter until such Real Property has been owned by the Borrower or its Subsidiaries for the entirety of a calendar quarter, Net Operating Income shall be grossed up for such ownership period. Net Operating Income shall be calculated on a consolidated basis in accordance with GAAP but adjusted for non-cash operating items such as straight line rents and the amortization of above and below market lease assets and liabilities and other non-cash items and including (without duplication) the Equity Percentage of Net Operating Income for the Borrower’s Unconsolidated Affiliates. For Leases subject to rent abatement periods, Net Operating Income shall include the first three months of rent scheduled to be paid under the Lease in question upon termination of such rent abatement period, annualized, if (a) for a lease with a remaining term of seven (7) or more years from the date of calculation, the remaining free rent or rent abatement period is no greater than twelve (12) months from the date of calculation, or (b) for a lease with a remaining term of fewer than seven (7) years, the remaining free rent or rent abatement period is no greater than six (6) months from the date of calculation; provided, however, that the aggregate amount of all such scheduled rent included within the calculation of Net Operating Income shall not exceed ten percent (10%) of Net Operating Income. Net Operating Income shall include early lease termination payments as follows: (i) for a lump sum early termination payment, an amount properly allocated to the determination period in question based upon equal monthly installments of such early termination payment amortized over the remaining lease term at the time of termination and (ii) for early termination payments paid over a period of time, the amount paid or payable for the determination period in question. In no event shall Net Operating Income include early termination payments: (x) related to any tenant space whereby rental or other income from a
replacement tenant is already included in Net Operating Income, or (y) to the extent such early termination payments exceed ten percent (10%) of Net Operating Income unless a greater percentage is approved by the Majority Lenders.
“
Note
” means a promissory note in the form attached hereto as
Exhibit D
payable to a Lender evidencing certain of the obligations of the Borrower to such Lender and executed by Borrower, as the same may be amended, supplemented, modified or restated from time to time; “
Notes
” means, collectively, all of such Notes outstanding at any given time.
“
Obligations
” means all liabilities, obligations, covenants and duties of any Credit Party to the Administrative Agent, the Issuing Bank and/or any Lender arising under or otherwise with respect to any Loan Document, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Credit Party or any Affiliate thereof of any proceeding under any bankruptcy or other insolvency proceeding naming such person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceedings.
“
OFAC
” has the meaning set forth in
Section 3.16
.
“
OP
” means Griffin Capital Essential Asset Operating Partnership, L.P. (successor by merger to Griffin Capital Essential Asset Operating Partnership II, L.P.), a Delaware limited partnership.
“
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 solely 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 2.18(b) as a result of costs sought to be reimbursed pursuant to SECTION 2.16).
“
Parent
” means Griffin Capital Essential Asset REIT II, Inc., a Maryland corporation.
“
Patriot Act
” has the meaning set forth in
Section 9.14
.
“
Payout Ratio
” means the ratio of cash dividends or distributions to common equity holders of the Parent paid or payable for the applicable period to Core Funds from Operations.
“
PBGC
” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
“
Permitted Encumbrances
” means:
(a) Liens imposed by law for taxes that are not yet due or are being contested in compliance with
Section 5.05
;
(b) pledges and deposits made in the ordinary course of business in compliance with workers' compensation, unemployment insurance and other social security laws or regulations;
(c) deposits to secure the performance of bids, trade contracts, purchase, construction or sales contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business;
(d) the Title Instruments and Liens (including customary Liens granted to or for the benefit of a Governmental Authority in connection with tax increment financing, tax abatements, or entitlement/payment in lieu of taxes structures) approved by the Administrative Agent;
(e) uniform commercial code protective filings with respect to personal property leased to the Borrower or any Subsidiary;
(f) landlords’ liens for rent not yet due and payable;
provided
that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness other than the Loans.
“
Permitted Investments
” means:
(a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the date of acquisition thereof and having an investment grade credit rating on the date of acquisition;
(c) investments in certificates of deposit, banker's acceptances and time deposits maturing within 180 days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the laws of the United States of America or any State thereof which has a combined capital and surplus and undivided profits of not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of not more than 90 days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria described in clause (c) above; and
(e) investments in Subsidiaries and Unconsolidated Affiliates made in accordance with this Agreement.
“
Person
” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“
Plan
” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“
Platform
” has the meaning set forth in Section 9.01.
“
Pool Property(ies)
” means the unencumbered Real Properties described on
Schedule 5.12
attached hereto and together with any additional property, whether now existing or hereafter acquired, each of which shall either (A) have been approved by the Majority Lenders, or (B) meet the following criteria at all times:
(a) An (i) existing operating, income producing office or industrial property or (ii) a to-be-developed office or industrial property which is 100% pre-leased to a single tenant scheduled to take occupancy within 30 months subject to an executed lease, and in each instance located in the United States;
(b) Owned 100% by Borrower or a wholly owned Subsidiary of the Borrower (i) in fee simple, or (ii) subject to a financeable ground lease with a remaining term (including any extension options) of no less than 30 years which has been approved by Administrative Agent in its sole discretion;
(c) Having at the time of acceptance as a Pool Property, leasing and occupancy of no less than 80% (with such percentage being calculated on a weighted average basis using the Net Operating Income of each Pool Property), provided that for purposes hereof, the following tenants shall be included in “occupancy” (i) a tenant which will take occupancy within 12 months subject only to completion of tenant build-out work, (ii) a replacement tenant which will take occupancy within 12 months of prior tenant vacating, pursuant to an executed lease, subject only to completion of tenant build-out work, or (iii) for an Asset Under Development, a tenant that is scheduled to take occupancy within 30 months subject to an executed lease;
(d) At the time of acceptance as a Pool Property, (i) having a minimum lease term of at least five (5) years if such property is leased to a single tenant, and (ii) having a weighted average remaining lease term of at least five (5) years if a multi tenanted property, unless, in either case, (x) approved by the Administrative Agent if the Value of such Real Property is $50,000,000.00 or less, or (y) otherwise approved by the Majority Lenders;
(e) Not subject to any mortgage or other Lien other than Permitted Encumbrances;
(f) The Equity Interests in or cash flows from the special purpose entity which owns such property (and all subsidiaries of the Parent or the Borrower which own Equity Interests in such special purpose entity) are not subject to a Lien or negative pledge to any other lender;
(g) Free of any material environmental, structural, architectural, mechanical or title defects;
(h) Insured in form and substance in all manners customary for commercial real estate lending;
(i) Consisting of one or more separate tax parcels;
(j) Such Real Property shall have been approved as a Pool Property (i) by Administrative Agent only if the Value of such Real Property is $50,000,000.00 or less, or (ii) otherwise by the Majority Lenders;
(k) Such Real Property meets all other customary standards for commercial real estate lending.
If a Real Property does not meet the foregoing requirements, acceptance of such Real Property as a Pool Property shall require the consent of the Majority Lenders in their sole discretion.
“
Pool Property Owner
” shall mean, from time to time, a wholly owned Subsidiary of the Borrower which is the owner or owners of the fee simple interest in, or the approved ground or tax increment lessee of, a Pool Property or the Pool Properties.
“
Pool Value
” means, as of any date of determination, the sum of (i) for completed Pool Properties, Net Operating Income from the Pool Properties divided by 7.00% plus (ii) for Pool Properties which are Assets Under Development and Assets Under Renovation, the lesser of (a) undepreciated cost basis or (b) stabilized appraised value based on the most recent MAI appraisal obtained by the Borrower, in each case, as of such date.
“
Preliminary Approval
” shall mean the following:
(a) Delivery by the Borrower to the Administrative Agent and the Lenders of a written request respect to any Individual Property proposed to be a Pool Property together with the following, each such item to the reasonable satisfaction of the Administrative Agent:
(i) A physical description;
(ii) A current rent roll for the Individual Property, along with operating statements and a copy of all leases at such Individual Property;
(iii) If the Individual Property is a to-be-developed office or industrial property, a construction budget and sources and uses statement, including a pro forma Borrowing Base
Certificate which includes anticipated funding of the Revolving Loan to complete 100% of construction for such Individual Property;
(iv) To the extent then available in Borrower’s files, copies of existing title insurance policies, a title report and similar Lien status information;
(v) The Borrower’s certification that to its knowledge the proposed Pool Property presently satisfies (or is anticipated to satisfy upon the approval of such Pool Property) the criteria for Pool Properties; and
(vi) Such other customary due diligence as the Administrative Agent may reasonably request.
(b) Administrative Agent shall, within five (5) Business Days after delivery of all items described in subsection (a), above, grant or deny the preliminary approval for the proposed Pool Property, with any denial providing an explanation of the reasons for such denial.
“
Prepayment Premium
” shall mean, (i) with respect to any prepayment of the 2026 Term Loans by the Borrower on or before April 30, 2020, 2.0% of the amount of such prepayment, (ii) with respect to any prepayment of the 2026 Term Loans by the Borrower after April 30, 2020 but on or before April 30, 2021, 1.0% of the amount of such prepayment, and (iii) with respect to any prepayment of the 2026 Term Loans by the Borrower after April 30, 2021, 0.0%.
“
Prime Rate
” means the rate of interest per annum publicly announced from time to time by KeyBank National Association, as its prime rate in effect at its principal office in Cleveland, Ohio; each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective.
“
PTE
” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“
Public Lender
” has the meaning set forth in Section 9.01.
“
Qualified ECP Party
” means, in respect of any interest rate cap, swap or other hedging obligation, each Person which is a Credit Party that has total assets exceeding $10,000,000 at the time such Credit Party’s guarantee and/or other credit or collateral support, of such interest rate cap, swap or other hedging obligation becomes effective, or otherwise constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder
“
Rating Agency
” means any of S&P, Moody’s and Fitch.
“
Real Property
” means, collectively, all interest in any land and improvements located thereon (including direct financing leases of land and improvements owned by a Credit Party), together with all equipment, furniture, materials, supplies and personal property now or hereafter located at or used in connection with the land and all appurtenances, additions, improvements, renewals, substitutions and replacements thereof now or hereafter acquired by a Credit Party.
“
Recipient
” means Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of any Borrower or Guarantor hereunder.
“
Register
” has the meaning set forth in
Section 9.04
.
“
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.
“
Release
” means any release, spill, emission, leaking, pumping, pouring, dumping, emptying, injection, deposit, disposal, discharge, dispersal, leaching or migration on or into the indoor or outdoor environment or into or out of any property in violation of applicable Environmental Laws.
“
Release Conditions
” has the meaning set forth in
Section 5.13(a)
.
“
Release Request
” has the meaning set forth in
Section 5.13(a)
.
“
Remedial Action
” means all actions, including without limitation any capital expenditures, required or necessary to (i) clean up, remove, treat or in any other way address any Hazardous Material; (ii) prevent the Release or threat of Release, or minimize the further Release, of any Hazardous Material so it does not migrate or endanger public health or the environment; (iii) perform pre-remedial studies and investigations or post-remedial monitoring and care; or (iv) bring facilities on any property owned or leased by the Borrower or any of its Subsidiaries into compliance with all Environmental Laws.
“
Restricted Payment
” means any dividend or other distribution (whether in cash, securities or other property) with respect to any ownership interests (including any preferred equity interests) in the Parent, Borrower or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such ownership interests in the Parent or Borrower or any option, warrant or other right to acquire any such shares of capital stock of the Parent or the Borrower.
“
Revolving Commitment
” means, with respect to each Lender, the commitment of such Lender to make Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans hereunder, expressed as an amount representing the maximum aggregate amount of such Lender's Revolving Credit Exposure hereunder, as such commitment may be reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04
. The initial amount of each Lender's Revolving Commitment is set forth on
Schedule 2.01
, or in the Assignment and Acceptance pursuant to which such Lender shall have assumed its Revolving Commitment, as applicable. The initial aggregate amount of the Lenders’ Revolving Commitments is $750,000,000.00.
“
Revolving Credit Exposure
” means, with respect to any Lender at any time, the sum of the outstanding principal amount of such Lender's Revolving Loans, its LC Exposure and Swingline Exposure at such time.
“
Revolving Lender
” means, at any time, each Lender that has a Revolving Commitment.
“
Revolving Loan
” means a revolving Loan made pursuant to
Section 2.01
.
“
Revolving Loan Applicable Percentage
” means, as to each Revolving Lender, the ratio, expressed as a percentage, of (a) the aggregate amount of such Lender’s Revolving Commitment to (b) the aggregate amount of the Revolving Commitments of all Revolving Lenders; provided, however, that if at the time of determination the Revolving Commitments have terminated or been reduced to zero, the “Revolving Loan Applicable Percentage” of each Revolving Lender shall be the Revolving Loan Applicable Percentage of such Lender in effect immediately prior to such termination or reduction.
“
Revolving Loan Maturity Date
” means June 28, 2022, as the same may be extended in accordance with
Section 2.19
.
“
S&P
” means Standard & Poor’s Rating Services, a Standard & Poors Financial Services LLC business, and its successors.
“
Sanctioned Person
” means any Person that is (i) listed in any Sanctions-related list of designated Persons maintained by any Governmental Authority of the United States of America, including without limitation, OFAC or the U.S. Department of State, or by the United Nations Security Council, Her Majesty’s Treasury, the European Union or any other Governmental Authority, (ii) any Person located, operating, organized or resident in a Designated Jurisdiction, (iii) an agency of the government of a Designated Jurisdiction, or (iv) any Person owned or controlled by any Person or agency described in any of the preceding clauses (i) through (iii).
“
Sanction(s)
” means any economic or financial sanction or trade embargo administered or enforced by the United States government or any agency or instrumentality thereof (including without limitation, OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury or other relevant sanctions authority.
“
Secured Debt
” means any Indebtedness of Borrower, Parent or their direct or indirect subsidiaries which is secured by a lien on real property, an ownership interest in any Person or any other asset. Secured Debt shall include Borrower's and Parent's pro rata share of Secured Debt of any non-wholly-owned direct or indirect subsidiary, but shall not include the Loans.
“
Secured Debt Ratio
” means, as of any date of determination, the ratio (expressed as a percentage) of (i) Secured Debt to (ii) Total Asset Value.
“
Secured Recourse Debt
” means all Secured Debt of Borrower, Parent or their direct or indirect subsidiaries on a recourse basis to such Person, the Borrower or any Guarantor.
“
Secured Recourse Debt Ratio
” means, as of any date of determination, the ratio (expressed as a percentage) of (i) all Secured Recourse Debt to (ii) Total Asset Value.
“
Series Divided LLC
” means any Series LLC which has been formed upon the consummation of a limited liability company division under the laws of the applicable jurisdiction of organization of such entity.
“
Series LLC
” means any limited liability company organized or formed under the laws of the applicable jurisdiction of organization of such entity.
“
Series LLC Division
” means the statutory division of any Series LLC into two or more limited liability companies pursuant to the laws of the applicable jurisdiction of organization of such entity.
“
Statutory Reserve Rate
” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Governmental Authority to which the Administrative Agent is subject, with respect to the Adjusted LIBO Rate, for Eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board). Such reserve percentages shall include those imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute Eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.
“
Subsidiary
” means, with respect to Borrower, Parent or any Credit Party, as applicable (for the purposes of this definition, the “
parent
”), at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent's consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held by parent, or (b) that is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent.
“
Subsidiary Guarantor
” means each Pool Property Owner, and each other Subsidiary of the Borrower which owns a direct or indirect Equity Interest in a Subsidiary Guarantor.
“
Subsidiary Guaranty Termination Event
” means Borrower’s satisfaction of each of the following:
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(a)
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Borrower has received an Investment Grade Rating;
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(b)
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Borrower has delivered a certification to Administrative Agent that the Subsidiary Guarantors have been released from liability for any other Indebtedness and from liability under any guaranties of Indebtedness, together with documentation satisfactory to Administrative Agent evidencing such release.
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“
Swingline Exposure
” means, at any time, the aggregate principal amount of all Swingline Loans outstanding at such time. The Swingline Exposure of any Revolving Lender at any time shall be its Revolving Loan Applicable Percentage of the total Swingline Exposure at such time.
“
Swingline Lender
” means each of KeyBank National Association, Bank of America, N.A., and Wells Fargo Bank, National Association, in its respective capacity as lender of Swingline Loans hereunder.
“
Swingline Loan
” means a Loan made pursuant to
Section 2.04
.
“
Swingline Share
” means, with respect to each Swingline Lender, 33 1/3%.
“
Tangible Net Worth
” means total assets (without deduction for accumulated depreciation) less (1) all intangible assets and (2) all liabilities (including contingent and indirect liabilities), all as determined in accordance with GAAP (unless otherwise indicated herein). The term “intangibles” shall include, without limitation, (i) deferred charges, and (ii) the aggregate of all amounts appearing on the assets side of such balance sheet for franchises, licenses, permits, patents, patent applications, copyrights, trademarks, trade names, goodwill (exclusive of the costs of the Borrower’s and the Parent’s self-administration transaction), treasury stock, experimental or organizational expenses, straight-line rent accruals and other like intangibles but excluding all amounts for real property acquisitions that have been allocated to lease intangibles. The term “liabilities” shall include, without limitation, (i) Indebtedness secured by liens on property of the Person or other debt with respect to which Tangible Net Worth is being computed whether or not such Person is liable for the payment thereof, (ii) deferred liabilities and (iii) capital lease obligations, but shall exclude all amounts for real property acquisition costs which have been allocated to lease intangibles. Tangible Net Worth shall be calculated on a consolidated basis in accordance with GAAP (unless otherwise indicated herein).
“
Taxes
” means any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority.
“
Term Lender
” means a 2023 Term Lender, a 2024 Term Lender, or a 2026 Term Lender.
“
Term Loan
” means a 2023 Term Loan, a 2024 Term Loan, or a 2026 Term Loan.
“
Term Commitment
” means a 2023 Term Commitment, a 2024 Term Commitment, or a 2026 Term Commitment.
“
Term Loan Maturity
” shall mean, with respect to any respective Class of Term Loans, the 2023 Term Loan Maturity Date, the 2024 Term Loan Maturity, or the 2026 Term Loan Maturity, as
applicable, or, in any instance, upon acceleration of such respective Class of Term Loans, if such respective Class of Term Loan has been accelerated by the Lenders upon an Event of Default.
“
Title Instruments
” means true and correct copies of all instruments of record in the Office of the County Clerk, the Real Property Records or of any other Governmental Authority affecting title to all or any part of the Pool Properties, including but not limited to those (if any) which impose restrictive covenants, easements, rights-of-way or other encumbrances on all or any part of the Pool Properties.
“
Total Asset Value
” means the sum of (without duplication) (a) the aggregate Value of all of Borrower's, Parent’s and their direct and indirect subsidiaries' Real Property, plus (b) the cost of assets acquired in the preceding twelve (12) months, plus (c) Assets Under Development, Assets Under Renovation and unimproved land, each valued at undepreciated cost basis, plus (d) the amount of any cash and cash equivalents, excluding tenant security and other restricted deposits of the Borrower and its Subsidiaries, plus (e) mortgage loan investments of Borrower or Guarantor, valued at the lower of cost basis or carrying value. For any non-wholly owned Real Properties, Total Asset Value shall be adjusted for Borrower's and Guarantor's pro rata ownership percentage.
“
Total Commitment
” means the sum of the Commitments of the Lenders, as in effect from time to time. On the Effective Date the Total Commitment equals $1,500,000,000, consisting of the $750,000,000 Revolving Commitments, $200,000,000 2023 Term Commitments, $400,000,000 2024 Term Commitments and $150,000,000 2026 Term Commitments.
“
Total Outstandings
” means the sum of the total Revolving Credit Exposures and the principal balance of all of the Term Loans.
“
Transactions
” means the execution, delivery and performance by the Credit Parties of the Loan Documents, the borrowing of Loans, and the use of the proceeds thereof.
“
Type
,” when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.
“
U.S. Person
” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.
“
U.S. Tax Compliance Certificate
” has the meaning set forth in SECTION 2.16(f)(ii)(2)(C).
“
Unconsolidated Affiliate
” means, without duplication, in respect of any Person, any other Person (other than a Person whose stock is traded on a national trading exchange) in whom such Person holds a voting equity or ownership interest and whose financial results would not be consolidated under GAAP with the financial results of such Person on the consolidated financial statements of such Person.
“
Unhedged Variable Rate Debt
” means Indebtedness of the Parent, the Borrower and their Subsidiaries on a consolidated basis (without duplication) which has a floating rate of interest and which interest rate is not fixed, capped or otherwise limited by an interest rate protection product.
“
Unsecured Debt
” means all Indebtedness of Borrower, Parent or their direct or indirect subsidiaries which is not Secured Debt, provided that any Indebtedness which is secured primarily by a pledge of Equity Interests and/or cash flow from an entity that owns Real Property shall be deemed Unsecured Debt.
“
Unsecured Interest Coverage Ratio
” means, as of any date of determination, the ratio of (i) the aggregate Net Operating Income from the Pool Properties to (ii) Unsecured Interest Expense.
“
Unsecured Interest Expense
” shall mean, as of any date of calculation, all of the Parent’s and its Subsidiaries’ paid, accrued or capitalized interest expense on their Unsecured Debt (whether direct, indirect or contingent during the most recently ended fiscal quarter, annualized, and including, without limitation, interest on all convertible debt), and including (without duplication) the Equity Percentage of Unsecured Interest Expense for the Borrower's (or the Parent’s) Unconsolidated Affiliates. Unsecured Interest Expense shall be grossed up to give pro forma effect to any Borrowing of Loans or other Unsecured Debt during such fiscal quarter, as if such Borrowing or Unsecured Debt had been incurred on the first day of such fiscal quarter.
“
Unsecured Leverage Ratio
” means, as of any date of calculation, the ratio (expressed as a percentage) of (i) the Unsecured Debt to (ii) Pool Value.
“
Unused Fee
” shall have the meaning set forth in
Section 2.11(a)
.
“
Usage
” means, from time to time, the aggregate Revolving Loans and LC Exposure of each Lender (but excluding, for the sake of clarity, any Swingline Loans or participation exposure in connection with any Swingline Loans).
“
Value
” means the sum of the following:
(a) For each Pool Property, the Pool Value;
(b) For each operating Real Property which is not a Pool Property, Net Operating Income divided by 7.00%;
(c) For Assets Under Development or Assets Under Renovation, undepreciated cost basis;
(d) For each unimproved land parcel, undepreciated cost basis; and
(e) For each mortgage loan investment, the lower of cost basis or face value.
“
Withdrawal Liability
” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
“
Withholding Agent
” means any Credit Party and the Administrative Agent.
“
Write-Down and Conversion Powers
” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
SECTION 1.02
Classification of Loans and Borrowings
. For purposes of this Agreement, Loans may be classified and referred to by Type (e.g., a “Eurodollar Loan”). Borrowings also may be classified and referred to by Type (e.g., a “Eurodollar Borrowing”) or by the respective facility (e.g. a “Revolving Borrowing” or a “Term Borrowing”).
SECTION 1.03
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 and (e) 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.
SECTION 1.04
Accounting Terms; GAAP
. Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time and shall be determined, as to the Parent and its Subsidiaries, on a consolidated basis; provided that, if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Majority Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.
ARTICLE II
The Credits
SECTION 2.01
Commitments
.
(a)
Subject to the terms and conditions set forth herein, each Revolving Lender agrees to make Revolving Loans to the Borrower from time to time during the Availability Period in an aggregate principal amount that will not result in (i) such Revolving Lender's Revolving Credit Exposure exceeding such Lender's Revolving Commitment, or (ii) the aggregate Revolving Credit Exposure of the Revolving Lenders exceeding (i) the Maximum Loan Available Amount less (b) the outstanding balance of all of the Term Loans; provided however, that no Revolving Lender shall be obligated to make a Revolving Loan in excess of such Lender’s Revolving Loan Applicable Percentage of the difference between (A) the Maximum Loan Available Amount less the outstanding balance of all of the Term Loans and (B) the Revolving Credit Exposure. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Revolving Loans.
(b)
Subject to all of the terms and conditions hereof, each 2023 Term Lender hereby agrees to make a 2023 Term Loan to the Borrower from time to time as set forth herein in an amount equal to such 2023 Term Lender’s 2023 Term Commitment. The 2023 Term Loan may not be reborrowed under any circumstances, and, subject to the provisions of
Section 2.08(d)
below, shall be advanced in part on the date hereof and thereafter in a maximum of three (3) advances after the date hereof, but which advances must occur prior to the date that is ninety (90) days from the date hereof and each of which must be in an amount that is at least $10,000,000 and in integral multiples of $10,000,000 in excess thereof. Any amount of the 2023 Term Commitment which is not advanced as of the date ninety (90) days from the date hereof will expire and will no longer be available to be advanced by the Lenders.
(c)
Subject to all of the terms and conditions hereof, each 2024 Term Lender hereby agrees to make a 2024 Term Loan to the Borrower on the Effective Date in an amount equal to such 2024 Term Lender’s 2024 Term Commitment. The 2024Term Loan may not be reborrowed under any circumstances, and, upon the making of the 2024 Term Loans on the Effective Date, the 2024 Term Commitments will expire and will no longer be available to be advanced by the Lenders.
(d)
Subject to all of the terms and conditions hereof, each 2026 Term Lender hereby agrees to make a 2026 Term Loan to the Borrower on the Effective Date in an amount equal to such 2026 Term Lender’s 2026 Term Commitment. The 2026 Term Loan may not be reborrowed under any circumstances, and, upon the making of the 2026 Term Loans on the Effective Date, the 2026 Term Commitments will expire and will no longer be available to be advanced by the Lenders.
SECTION 2.02
Loans and Borrowings.
(a)
Each Loan shall be made as part of a Borrowing consisting of Loans of such Class made by the Lenders of such Class ratably in accordance with their respective Commitments of such Class. The failure of any Lender of such Class to make any Loan
required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender's failure to make Loans as required.
(b)
Subject to
Section 2.13
, each Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request in accordance herewith. Each Swingline Loan shall be an ABR Loan. Each Lender at its option may make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan;
provided
that any exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement.
(c)
At the commencement of each Interest Period for any Eurodollar Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of $100,000 and not less than $1,000,000. At the time that each ABR Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of $100,000 and not less than $1,000,000,
provided
that an ABR Borrowing may be in an aggregate amount that is equal to the entire unused balance of the total Commitments or that is required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(e). Each Borrowing or Swingline Loans shall be in an amount that is an integral multiple of $100,000 and not less than $1,000,000. Borrowings of any Class of more than one Type may be outstanding at the same time;
provided
that there shall not at any time be more than a total of five (5) Eurodollar Borrowings outstanding.
(d)
Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to convert or continue, any Borrowing of any Class if the Interest Period requested with respect thereto would end after the applicable Maturity Date for such Class.
SECTION 2.03
Requests for Borrowings
. To request a Borrowing (other than a Borrowing of Term Loans on the Effective Date), the Borrower shall notify the Administrative Agent of such request by telephone (a) in the case of a Eurodollar Borrowing, not later than 12:00 noon, Boston, Massachusetts time, three Business Days before the date of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 12:00 noon, Boston, Massachusetts time, one Business Day before the date of the proposed Borrowing; provided that any such notice of an ABR Borrowing to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(e) may be given not later than 11:00 a.m., Boston, Massachusetts time, on the date of the proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Borrowing Request in the form of
Exhibit E
attached hereto and hereby made a part hereof and signed by the Borrower. Each such telephonic and written Borrowing Request shall specify the following information in compliance with
Section 2.02
:
(i)
the Class and aggregate amount of the requested Borrowing;
(ii)
the date of such Borrowing, which shall be a Business Day;
(iii)
whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;
(iv)
in the case of a Eurodollar Borrowing, the Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period”; and
(v)
the location and number of the Borrower's account to which funds are to be disbursed, which shall comply with the requirements of
Section 2.06
.
If no election as to the Type of Borrowing is specified in the Borrowing Request, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month's duration, in the case of a Eurodollar Borrowing. Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the applicable Class of the details thereof and of the amount of such Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04
Swingline
.
(a)
Subject to the terms and conditions set forth herein, each Swingline Lender severally agrees to make Swingline Loans to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $125,000,000.00, (ii) the aggregate Revolving Credit Exposure of the Lenders exceeding the aggregate Revolving Commitments of the Revolving Lenders, (iii) the aggregate outstanding amount of all Swingline Loans made by any Swingline Lender plus such Swingline Lender’s other Revolving Credit Exposure shall not exceed such Swingline Lender’s Revolving Commitment or (iv) the aggregate Revolving Credit Exposure of the Revolving Lenders exceeding (A) the total Maximum Loan Available Amount less (B) the outstanding balance of all of the Term Loans, and in all events no Swingline Loan shall be outstanding for more than ten (10) Business Days; provided that no Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans. No Swingline Lender shall have an obligation to make a Swingline Loan if a default of any Revolving Lender’s obligations to fund any amount under this Agreement exists or any Revolving Lender is at such time a Defaulting Lender hereunder, unless the Admininstrative Agent has entered into satisfactory arrangements with the Borrower or such Revolving Lender to eliminate each Swingline Lender’s risk with respect to such Revolving Lender (with cash collateral pledged to the Adminsitrative Agent in the amount of such defaulting Revolving Lender’s or Defaulting Lender’s pro rata portion of the Swingline Loan being deemed satisfactory)
(b)
Each Swingline Loan shall be made as part of a Borrowing consisting of Swingline Loans made by the Swingline Lenders ratably in accordance with their respective Swingline Shares. The failure of any Swingline Lender to make any Swingline Loan required
to be made by it shall not relieve any other Lender of its obligations hereunder;
provided
that the commitments of the Swingline Lenders to make Swingline Loans are several and no Swingline Lender shall be responsible for any other Swingline Lender's failure to make Swingline Loans as required hereby.
(c)
To request a Borrowing of Swingline Loans, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 p.m., Boston, Massachusetts time, on the day of a proposed Swingline Loan Borrowing. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan Borrowing. The Administrative Agent will promptly advise each Swingline Lender of any such notice received from the Borrower. Each Swingline Lender shall make a Swingline Loan in an amount equal to its Swingline Share of the aggregate amount of the requested Borrowing available to the Borrower by wire transfer of immediately available funds by 2:00 p.m. Boston, Massachusetts time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in
Section 2.05(e)
, by remittance to the Issuing Bank). The Administrative Agent will make such Loans available to the Borrower by promptly crediting the amounts so received, in like funds, to an account of the Borrower maintained with the Administrative Agent, or wire transferred to such other account or in such manner as may be designated by the Borrower in the applicable Borrowing, by 4:00 p.m., Boston, Massachusetts time, on the requested date of such Swingline Loans.
Any Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., Boston, Massachusetts time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice such Revolving Lender's Revolving Loan Applicable Percentage of such Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, within two (2) Business Days after receipt of notice as provided above, to pay to the Administrative Agent, for the account of each Swingline Lender, such Revolving Lender's Revolving Loan Applicable Percentage of such Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, provided no Revolving Lender shall be required to acquire a participation in a Swingline Loan to the extent same would result in such Revolving Lender's Revolving Credit Exposure exceeding such Lender's Revolving Commitment. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in
Section 2.06
with respect to Loans made by such Revolving Lender (and
Section 2.06
shall apply,
mutatis
mutandis
, to the payment obligations of the Revolving Lenders), and the Administrative Agent shall promptly pay to each Swingline Lender its respective Swingline Share of the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the applicable Swingline Lender. Any amounts received by a Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by such Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to each Swingline Lender, as their interests may appear, in each instance in accordance with
Section 2.17(a)
; provided that any such payment so remitted shall be repaid to each applicable Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
SECTION 2.05
Letters of Credit
.
(a)
General
. Subject to the terms and conditions set forth herein, the Borrower may request the issuance of Letters of Credit for its own account in a form reasonably acceptable to the Administrative Agent and the Issuing Bank, at any time and from time to time prior to thirty (30) days before the termination of the Availability Period. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the Borrower to, or entered into by the Borrower with, the Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control.
(b)
Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions.
To request the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of Credit), the Borrower shall hand deliver or telecopy (or transmit by electronic communication, if arrangements for doing so have been approved by the Issuing Bank) to the Issuing Bank and the Administrative Agent (reasonably in advance of the requested date of issuance, amendment, renewal or extension) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with paragraph (c) of this Section), the amount of such Letter of Credit, the name and address of the beneficiary thereof and such other information as shall be necessary to prepare, amend, renew or extend such Letter of Credit. The Administrative Agent shall remit a copy of such request to the Revolving Lenders. If requested by the Issuing Bank, the Borrower also shall submit a letter of credit application on the Issuing Bank's standard form in connection with any request for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment, renewal or extension
of each Letter of Credit the Borrower shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal or extension (i) the LC Exposure shall not exceed $25,000,000, (ii) the aggregate Revolving Credit Exposure of the Revolving Lenders shall not exceed the aggregate Revolving Commitments of the Revolving Lenders, (iii) the aggregate Revolving Credit Exposure of the Revolving Lenders shall not exceed (a) the total Maximum Loan Available Amount less (b) the outstanding balance of all of the Term Loans, and (iv) the face amount of the subject Letter of Credit shall not be less than $100,000. The Issuing Bank shall have no obligation to issue a Letter of Credit if a default of any Revolving Lender’s obligations to fund any amount under this Agreement exists or any Revolving Lender is at such time a Defaulting Lender hereunder, unless the Issuing Bank has entered into satisfactory arrangements with the Borrower or such Revolving Lender to eliminate the Issuing Bank’s risk with respect to such Revolving Lender (with cash collateral pledged to the Issuing Bank in the amount of such defaulting or Defaulting Lender’s pro rata portion of the Letter of Credit being deemed satisfactory).
(c)
Expiration Date.
Each Letter of Credit shall expire upon the earlier to occur of (i) one year from the date issuance, subject to a customary one year extension “evergreen” provision, or (ii) not later than the close of business on the date that is thirty (30) days prior to the Revolving Loan Maturity Date unless (1) all the Revolving Lenders have approved such expiry date, or (2) the Borrower agrees to deliver to the Administrative Agent no later than thirty (30) days prior to the Revolving Loan Maturity Date cash collateral in an amount equal to the undrawn amount of such Letter of Credit, with the Borrower hereby irrevocably requesting a Borrowing of an ABR Loan to fund such cash collateral payment in the event the Borrower does not deliver such cash collateral to the Administrative Agent on the due date thereof.
(d)
Participations.
By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the Revolving Lenders, the Issuing Bank hereby grants to each Revolving Lender, and each Revolving Lender hereby acquires from the Issuing Bank, a participation in such Letter of Credit equal to such Revolving Lender's Revolving Loan Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Revolving Lender's Revolving Loan Applicable Percentage of each LC Disbursement made by the Issuing Bank and not reimbursed by the Borrower on the date due as provided in paragraph (e) of this Section, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, provided no Revolving Lender shall be required to acquire a participation in a Letter of Credit to the extent same would result
in such Revolving Lender's Revolving Credit Exposure exceeding such Lender's Revolving Commitment.
(e)
Reimbursement.
If the Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Administrative Agent an amount equal to such LC Disbursement not later than 12:00 noon, Boston, Massachusetts time, on the Business Day that such LC Disbursement is made, if the Borrower shall have received notice of such LC Disbursement prior to 10:00 a.m., Boston, Massachusetts time, on such date, or, if such notice has not been received by the Borrower prior to such time on such date, then on the Business Day immediately following the day that the Borrower receives such notice, if such notice is not received prior to such time on the day of receipt;
provided
that the Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with
Section 2.03
that such payment be financed with an ABR Borrowing or Swingline Loan in an equivalent amount and, to the extent so financed, the Borrower's obligation to make such payment shall be discharged and replaced by the resulting ABR Borrowing or Swingline Loan. If the Borrower fails to make such payment when due, the Administrative Agent shall notify each Revolving Lender of the applicable LC Disbursement, the payment then due from the Borrower in respect thereof and such Revolving Lender's Revolving Loan Applicable Percentage thereof. Promptly following receipt of such notice, each Revolving Lender shall pay to the Administrative Agent its Revolving Loan Applicable Percentage of the payment then due from the Borrower, in the same manner as provided in
Section 2.06
with respect to Revolving Loans made by such Revolving Lender (and
Section 2.06
shall apply,
mutatis
mutandis
, to the payment obligations of the Revolving Lenders), and the Administrative Agent shall promptly pay to the Issuing Bank the amounts so received by it from the Revolving Lenders. Promptly following receipt by the Administrative Agent of any payment from the Borrower pursuant to this paragraph, the Administrative Agent shall distribute such payment to the Issuing Bank or, to the extent that Revolving Lenders have made payments pursuant to this paragraph to reimburse the Issuing Bank, then to such Revolving Lenders and the Issuing Bank as their interests may appear. Any payment made by a Revolving Lender pursuant to this paragraph to reimburse the Issuing Bank for any LC Disbursement (other than the funding of ABR Revolving Loans or a Swingline Loan as contemplated above) shall not constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such LC Disbursement.
(f)
Obligations Absolute
. The Borrower's obligation to reimburse LC Disbursements as provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not strictly comply with the terms of such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable
discharge of, or provide a right of setoff against, the Borrower's obligations hereunder. Neither the Administrative Agent, the Lenders nor the Issuing Bank, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Issuing Bank;
provided
that the foregoing shall not be construed to excuse the Issuing Bank from liability to the Borrower to the extent of any direct damages (as opposed to consequential 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 willful misconduct on the part of the Issuing Bank, the Issuing Bank shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(g)
Disbursement Procedures.
The Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit. The Issuing Bank shall promptly notify the Administrative Agent and the Borrower by telephone (confirmed by telecopy) of such demand for payment and whether the Issuing Bank has made or will make an LC Disbursement thereunder;
provided
that any failure to give or delay in giving such notice shall not relieve the Borrower of its obligation to reimburse the Issuing Bank and the Revolving Lenders with respect to any such LC Disbursement.
(h)
Interim Interest.
If the Issuing Bank shall make any LC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement, at the rate per annum then applicable to ABR Revolving Loans;
provided
that, if the Borrower fails to reimburse such LC Disbursement when due pursuant to
paragraph (e)
of this Section, then
Section 2.12(c)
shall apply. Interest accrued pursuant to this paragraph shall be for the account of the Issuing Bank, except that interest accrued on and after the date of payment by any Revolving Lender pursuant to paragraph (e) of this Section to reimburse the Issuing Bank shall be for the account of such Revolving Lender to the extent of such payment.
(i)
Replacement of the Issuing Bank.
The Issuing Bank may be replaced at any time by written agreement among the Borrower, the Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank. The Administrative Agent shall notify the Revolving Lenders of any such replacement of the Issuing Bank. At the time any such replacement shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to
Section 2.11(d)
. From and after the effective date of any such replacement, (i) the successor Issuing Bank shall have all the rights and obligations of the Issuing Bank under this Agreement with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term “Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require. After the replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not be required to issue additional Letters of Credit.
(j)
Cash Collateralization.
If any Event of Default shall occur and be continuing, on the Business Day that the Borrower receives notice from the Administrative Agent demanding the deposit of cash collateral pursuant to this paragraph, the Borrower shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Revolving Lenders, an amount in cash equal to the LC Exposure as of such date plus any accrued and unpaid interest thereon, if any;
provided
that the obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default with respect to the Borrower described in
clause (g)
or
(h)
of
Article VII
. Such deposit shall be held by the Administrative Agent as collateral for the payment and performance of the obligations of the Borrower under this Agreement. The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Other than any interest earned on the investment of such deposits, which investments shall be made at the option and sole discretion of the Administrative Agent and at the Borrower's risk and expense, such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such account shall be applied by the Administrative Agent to reimburse the Issuing Bank for LC Disbursements for which it has not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of Majority Class Lenders with respect to Revolving Lenders), be applied to satisfy other obligations of the Borrower under this Agreement, provided that, to the extent such obligations are owed to Revolving Lenders, such application shall be on a pro rata basis. If the Borrower is required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three Business Days after all Events of Default have been cured or waived.
SECTION 2.06
Funding of Borrowings.
(a)
Each Lender shall make each Loan of each Class to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 12:00 noon, Boston, Massachusetts time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders; provided that Swingline Loans shall be made as provided in
Section 2.04
. The Administrative Agent will make such Loans available to the Borrower by promptly crediting the amounts so received, in like funds, to an account of the Borrower maintained with the Administrative Agent in Boston, Massachusetts, or wire transferred to such other account or in such manner as may be designated by the Borrower in the applicable Borrowing Request; provided that ABR Revolving Loans made to finance the reimbursement of an LC Disbursement as provided in
Section 2.05(e)
shall be remitted by the Administrative Agent to the Issuing Bank.
(b)
Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of any applicable Class that such Lender will not make available to the Administrative Agent such Lender's share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with paragraph (a) of this Section and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender of such Class has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest rate applicable to the corresponding Loan made to the Borrower. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender's Loan included in such Borrowing.
SECTION 2.07
Interest Elections.
(a)
Each Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect to convert a Borrowing of any Class to a different Type (but of the same Class) or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in this Section. The Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing. This Section shall not apply to Swingline Loans, which may not be converted or continued.
(b)
To make an election pursuant to this Section, the Borrower shall notify the Administrative Agent of such election by telephone by the time that a Borrowing Request
would be required under
Section 2.03
if the Borrower were requesting a Borrowing of the Class and Type resulting from such election to be made on the effective date of such election. Each such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Interest Election Request in the form of a Borrowing Request (with proper election made for an interest rate election only) and signed by the Borrower.
(c)
Each telephonic and written Interest Election Request shall specify the following information in compliance with
Section 2.02
:
(i)
the Borrowing (including Class) to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);
(ii)
the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;
(iii)
whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and
(iv)
if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period”.
If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.
(d)
Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender of the details thereof and of such Lender's portion of each resulting Borrowing.
(e)
If the Borrower fails to deliver a timely Interest Election Request with respect to a Eurodollar Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the request of the Majority Lenders, so notifies the Borrower, then, so long as an Event of Default is continuing (i) no outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto.
SECTION 2.08
Termination, Reduction and Increase of Commitments.
(a)
Unless previously terminated by the Administrative Agent or Borrower in accordance with this Agreement, the Commitments shall terminate on their respective Maturity Date(s).
(b)
The Borrower may only reduce the Revolving Commitments without the prior written consent of the Administrative Agent and all of the Lenders in the following circumstances: the Borrower may from time to time reduce the Revolving Commitments, provided that each reduction in the Revolving Commitments shall be in an amount that is at least $50,000,000 and an integral multiple of $50,000,000, and the Revolving Commitments may not be reduced to less than $150,000,000 unless the Revolving Commitments are reduced to zero and terminated. The Borrower shall not reduce the Revolving Commitments if, after giving effect to any concurrent prepayment of the Loans in accordance with
Section 2.10
, the total Revolving Credit Exposures would exceed the Maximum Loan Available Amount less the outstanding balance of all of the Term Loans. After any reduction in the Revolving Commitments, the Borrower’s option to increase the Revolving Commitments provided in
Section 2.08(d)
shall terminate.
(c)
The Borrower shall notify the Administrative Agent of any election to reduce the Revolving Commitments under
Section 2.08(b)
at least three (3) Business Days prior to the effective date of such reduction, specifying such election and the effective date thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section shall be irrevocable. Any reduction of the Revolving Commitments shall be permanent. Each reduction in the Revolving Commitments shall be made ratably among the Lenders in accordance with their respective Revolving Commitments. A reduction in the outstanding principal balance shall not constitute a reduction in the Revolving Commitments without the notice required above being delivered to Administrative Agent as set forth above.
(d)
Provided no Default or Event of Default shall then be in existence, the Borrower shall have the right, on one or more occasions, to elect to increase the Total Commitments; provided, however, that (i) unless otherwise approved by the Administrative Agent, the amount of each such increase shall not be less than Twenty-Five Million Dollars ($25,000,000) or in increments of Twenty-Five Million Dollars ($25,000,000) in excess thereof, and (ii) the aggregate amount of all such increases shall not cause the Total Commitments to exceed Two Billion Dollars ($2,000,000,000.00). Any such increase in the Total Commitment shall be allocated to the Revolving Loan and/or any of the Term Loans in such amounts as the Borrower and the Administrative Agent may determine. Such right may be exercised by the Borrower by written notice to the Administrative Agent, which election shall designate the requested increase in the Total Commitments and to which of the Revolving Loan and/or the Term Loans such request is being made. At the time of sending such notice, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to respond (which shall in no event be less than ten (10) Business Days from the date of delivery of such notice to the Lenders), and each Lender shall endeavor to respond as promptly as possible within such time period. Each Lender shall notify the Administrative Agent within such time period
whether or not it agrees to increase its Commitment (which decision shall be in its sole discretion) and, if so, whether by an amount equal to, greater than, or less than its Applicable Percentage of such requested increase. Any Lender not responding within such time period shall be deemed to have declined to increase its Commitment. The Administrative Agent shall notify the Borrower and each Lender of the Lenders’ responses to each request made hereunder. To achieve the full amount of a requested increase and subject to the approval of the Administrative Agent and the Issuing Bank (which approvals shall not be unreasonably withheld, conditioned or delayed), the Borrower may also invite additional lenders approved by the Administrative Agent (provided that no approval of the Administrative Agent shall be required if such new lender is an Affiliate of a Lender or an Approved Fund) to become Lenders pursuant to a joinder agreement (each a “
Lender Joinder Agreement
”) in form and substance reasonably satisfactory to the Administrative Agent and its counsel. If the Total Commitment is increased in accordance with this Section, the Administrative Agent and the Borrower shall determine the effective date (the “
Increase Effective Date
”) and the final allocation of each Lender’s increased Commitments among the Term Loans and the Revolving Loan. The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of such increase (with such increase being pro rata among existing Lenders choosing to increase their Commitments) and the Increase Effective Date. As a condition precedent to such increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Increase Effective Date signed by an Authorized Officer of the Borrower (i) certifying and attaching the resolutions adopted by the Borrower approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in
Article 6
and the other Loan Documents are true and correct in all material respects on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and except that for purposes of this
Section 2.08(d)
, the representations and warranties contained in
Section 3.04
shall be deemed to refer to the most recent statements furnished to the Administrative Agent, and (B) no Default or Event of Default exists. Existing Lenders may, as necessary, receive a prepayment of amounts of the Revolving Loan outstanding on the Increase Effective Date to the extent necessary to keep the outstanding Revolving Loan ratable with any revised Revolving Loan Applicable Percentages arising from any non-ratable increase in the Revolving Commitments under this Section, which prepayment shall be accomplished by the pro rata funding required of the Lender(s) issuing new or increased Commitments. The amount of any increase in any of the Term Loans will be funded on such Increase Effective Date.
SECTION 2.09
Repayment of Loans; Evidence of Debt.
(a)
The Borrower hereby unconditionally promises to pay (i) to the Administrative Agent for the account of each Revolving Lender the then unpaid principal amount of each Revolving Loan on the Revolving Loan Maturity Date, and (ii) subject to
Section 2.04
, to each Swingline Lender the then unpaid principal amount of each Swingline Loan made by it on the earlier of the Maturity Date and the first date after such Swingline Loan is made that is ten (10) Business Days after such Swingline Loan is made; provided
that on each date that a Borrowing of Loans of any Class (other than Swingline Loans) is made, the Borrower shall repay all Swingline Loans then outstanding.
(b)
The 2023 Term Loan shall be for a term commencing on the date hereof and ending on June 28, 2023 (the “
2023 Term Loan Maturity Date
”) and the Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each 2023 Lender the then unpaid principal amount of each 2023 Term Loan on such date or such earlier date as the 2023 Term Loan is accelerated pursuant to the terms of this Agreement upon an Event of Default.
(c)
The 2024 Term Loan shall be for a term commencing on the date hereof and ending on April 30, 2024 (the “
2024 Term Loan Maturity Date
”) and the Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each 2024 Lender the then unpaid principal amount of each 2024 Term Loan on such date or such earlier date as the 2024 Term Loan is accelerated pursuant to the terms of this Agreement upon an Event of Default.
(d)
The 2026 Term Loan shall be for a term commencing on the date hereof and ending on April 30, 2026 (the “
2026 Term Loan Maturity Date
”) and the Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each 2026 Lender the then unpaid principal amount of each 2026 Term Loan on such date or such earlier date as the 2026 Term Loan is accelerated pursuant to the terms of this Agreement upon an Event of Default.
(e)
At the request of any Lender, the Loans of each Class made by such Lender shall be evidenced by a Note payable to such Lender in the amount of such Lender’s Commitment of the applicable Class. Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan of each Class made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.
(f)
The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Type thereof and the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender's share thereof.
(g)
The entries made in the accounts maintained pursuant to
paragraph (e)
or
(f)
of this Section shall be
prima
facie
evidence of the existence and amounts of the obligations recorded therein;
provided
that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans in accordance with the terms of this Agreement.
SECTION 2.10
Prepayment of Loans.
(a)
The Borrower shall have the right at any time and from time to time to prepay, without penalty, any Borrowing of any Class in whole or in part, subject to (i) prior notice in accordance with paragraph (b) of this Section, (ii) payment of the applicable Prepayment Premium (if any) in respect of any prepayments of the 2026 Term Loans, and (iii) subject to
Section 2.15
, if applicable.
(b)
The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, each Swingline Lender) by telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., Boston, Massachusetts time, three (3) Business Days before the date of prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., Boston, Massachusetts time, one Business Day before the date of prepayment, or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon, Boston, Massachusetts time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount and Class of each Borrowing or portion thereof to be prepaid. Promptly following receipt of any such notice relating to a Borrowing, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that is an integral multiple of $100,000 and not less than $500,000. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by
Section 2.12
.
(c)
In connection with the prepayment of any Loan prior to the expiration of the Interest Period applicable thereto, the Borrower shall also pay any applicable expenses pursuant to
Section 2.15
.
(d)
Amounts to be applied to the prepayment of Loans of any Class pursuant to any of the preceding subsections of this Section shall be applied, first, to reduce outstanding ABR Loans of such Class and next, to the extent of any remaining balance, to reduce outstanding Eurodollar Loans of such Class. Each such prepayment shall be applied to prepay ratably the Loans of the Lenders of such Class.
(e)
If at any time:
(i)
the Total Outstandings of the Lenders exceeds the then effective Maximum Loan Available Amount, the Borrower shall prepay the Loans in an amount equal to such excess within one (1) Business Day after such occurrence, with any such payment being applied (i) first to the outstanding Swingline Loans, (ii) second to the outstanding Revolving Loans, (iii) third to cash collateralize any LC Exposure, and (iv) fourth to the Term Loans on a pro rata basis; or
(ii)
the aggregate Revolving Credit Exposure of the Lenders exceeds the then effective Maximum Loan Available Amount less the outstanding balance of all of the Term Loans, the Borrower shall prepay the Loans in an amount equal to such excess within one (1) Business Day after such occurrence, with any such payment
being applied (i) first to the outstanding Swingline Loans, (ii) second to the outstanding Revolving Loans, and (iii) third to cash collateralize any LC Exposure.
SECTION 2.11
Fees.
(a)
The Borrower agrees to pay to the Administrative Agent for the account of each Revolving Lender an unused fee (the “
Unused Fee
”), which shall accrue during the period from and including the date of this Agreement to, but excluding, the earlier to occur of (i) date on which such Revolving Commitment terminates, or (ii) the date on which the Borrower qualifies and elects to have the Applicable Rate determined by reference to its Debt Rating, (a) at .20% per annum on the daily unused amount of the Revolving Commitment of such Revolving Lender if Usage is less than 50% of such Revolving Lender’s Revolving Commitment, and (b) at .15% per annum on the daily unused amount of the Revolving Commitment of such Revolving Lender if Usage is greater than or equal to 50% of such Revolving Lender’s Revolving Commitment. Unused Fees accrued through and including the last day of March, June, September and December of each year shall be payable on the third Business Day following such last day and on the date on which the Revolving Commitments terminate, commencing on the first such date to occur after the date hereof; provided that any Unused Fees accrued as of the date on which the Revolving Commitments terminate shall be payable on demand. All Unused Fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day) and shall be based on the then existing Revolving Commitments of the Revolving Lenders.
(b)
From and after the date on which the Borrower qualifies and elects to have the Applicable Rate determined by reference to its Debt Rating, the Borrower agrees to pay to the Administrative Agent for the account of each Revolving Lender (based on each Revolving Lender’s Revolving Loan Applicable Percentage) a facility fee (the “
Facility Fee
”) which shall accrue at the per annum Revolving Facility Fee Rate referenced in the grid set forth in clause (b) of the definition of Applicable Rate, times the aggregate Revolving Commitments. Such fee shall be payable quarterly in arrears on the last day of each March, June, September and December during the term of this Agreement and on the Termination Date or any earlier date of termination of the Revolving Commitments or reduction of the Revolving Commitments to zero. The Borrower acknowledges that the fee payable hereunder is a bona fide commitment fee and is intended as reasonable compensation to the Revolving Lenders for committing to make funds available to the Borrower as described herein and for no other purposes.
(c)
The Borrower agrees to pay to the Administrative Agent, for its own account, fees payable in the amounts and at the times separately agreed upon in any fee letter executed by the Borrower in connection with the transactions contemplated hereby.
(d)
The Borrower agrees to pay (i) to the Administrative Agent for the account of each Revolving Lender a participation fee with respect to its participations in Letters of Credit, which shall accrue at the Applicable Rate provided for Revolving Loans which are Eurodollar Loans on the average daily amount of such Revolving Lender's LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the date of this Agreement to but excluding the later of the date on which such Revolving Lender's Commitment terminates and the date on which such Revolving Lender ceases to have any LC Exposure,
provided
,
however
, any Letter of Credit Fees otherwise payable for the account of a Defaulting Lender with respect to any Letter of Credit as to which such Defaulting Lender has not provided cash collateral satisfactory to the Issuing Bank shall be payable, to the maximum extent permitted by applicable Legal Requirements, to the other Revolving Lenders in accordance with the upward adjustments in their respective Revolving Loan Applicable Percentages allocable to such Letter of Credit pursuant to Section 2.20(a)(iv) with the balance of such fee, if any, payable to the Issuing Bank for its own account, and (ii) to the Issuing Bank a fronting fee, in the amount of 0.125% of the face amount of each Letter of Credit (but not less than $500.00 for each Letter of Credit). Participation fees accrued through and including the last day of March, June, September and December of each year shall be payable on the third Business Day following such last day, commencing on the first such date to occur after the date of this Agreement;
provided
that all such fees shall be payable on the date on which the Commitments terminate and any such fees accruing after the date on which the Commitments terminate shall be payable on demand. Fronting fees shall be payable in full in advance on the date of the issuance, or renewal or extension of each Letter of Credit, and are not refundable. Any other fees payable to the Issuing Bank pursuant to this paragraph shall be payable within 10 days after demand. All participation fees and fronting fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).
(e)
In the event that any of the 2023 Term Commitment is not advanced on the date hereof (including the amount of any 2023 Term Loans previously advanced under the Existing Credit Agreement), such unadvanced amount shall incur an unused fee equal to one-quarter of one percent (0.25%) per annum multiplied by the average daily amount of the unadvanced portion of the 2023 Term Commitment. Such unused fee shall be payable to the 2023 Term Lenders pro rata quarterly in arrears and will start accruing on the date hereof and will stop accruing on the first to occur of (a) the date the 2023 Term Commitments are fully advanced, or (b) ninety (90) days after the date hereof.
(f)
All fees payable hereunder shall be paid on the dates due, in immediately available funds, to the Administrative Agent (or to the Issuing Bank, in the case of fees payable to it) for distribution, in the case of Unused Fees and participation fees, to the Revolving Lenders, and in the case of unused fees under clause (e) above, to the 2023 Term Lenders. Fees paid shall not be refundable under any circumstances.
(g)
In the event that the Revolving Loan Maturity Date is extended in accordance with the terms of
Section 2.19
, the Borrower agrees to pay to the Administrative Agent for the account of each Revolving Lender an extension fee equal to 0.20% of the aggregate Revolving Commitments of the Revolving Lenders on the first effective day of the extension.
SECTION 2.12
Interest.
(a)
The Loans comprising each ABR Borrowing (including each Swingline Loan) shall bear interest at the lesser of (x) the Alternate Base Rate plus the Applicable Rate, or (y) the Maximum Rate.
(b)
The Loans comprising each Eurodollar Borrowing shall bear interest at the lesser of (a) the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate, or (b) the Maximum Rate.
(c)
Notwithstanding the foregoing, (A) if any principal of or interest on any Loan or any fee or other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, the lesser of (x) 4% plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section, or (y) the Maximum Rate, or (ii) in the case of any other amount, the lesser of (x) 4% plus the rate applicable to ABR Loans as provided in
paragraph (a)
of this Section, or (y) the Maximum Rate; and (B) after the occurrence of any Event of Default, at the option of the Administrative Agent, or if the Administrative Agent is directed in writing by the Majority Lenders to do so, the Loan shall bear interest at a rate per annum equal to the lesser of (x) 4% plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section, or (y) the Maximum Rate.
(d)
Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan and, in the case of Revolving Loans, upon termination of the Commitments;
provided
that (i) interest accrued pursuant to
paragraph (c)
of this Section shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a prepayment of an ABR Revolving Loan prior to the end of the Availability Period), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any Eurodollar Revolving Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.
(e)
All interest hereunder shall be computed on the basis of a year of 360 days and twelve (12) 30-day months, and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day). The applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.
SECTION 2.13
Alternate Rate of Interest
. If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a)
the Administrative Agent or the Majority Lenders determine (which determination shall be conclusive absent manifest error) that adequate and reasonable means
do not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period; or
(b)
the Administrative Agent is advised by the Majority Lenders that (i) the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period and (ii) such fact is generally applicable to its loans of this type to similar borrowers, as evidenced by a certification from such Lenders;
then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective, and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing;
provided
that if the circumstances giving rise to such notice affect only one Type of Borrowings, then the other Type of Borrowings shall be permitted.
If at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that either (i) the circumstances set forth in the first paragraph of this SECTION 2.13 have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in the first paragraph of this SECTION 2.13 have not arisen but the supervisor for the administrator of LIBO Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which LIBO Rate shall no longer be used for determining interest rates for loans (in the case of either such clause (i) or (ii), an “Alternative Interest Rate Election Event”), the Administrative Agent and the Borrower shall endeavor to establish an alternate rate of interest to LIBO Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for similarly structured syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable. Such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within ten (10) Business Days after the date a copy of the amendment is provided to the Lenders, a written notice from Lenders comprising the Majority Lenders stating that they object to such amendment. To the extent an alternate rate of interest is adopted as contemplated hereby, the approved rate shall be applied in a manner consistent with prevailing market convention; provided that, to the extent such prevailing market convention is not administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent and the Borrower. From such time as an Alternative Interest Rate Election Event has occurred and continuing until an alternate rate of interest has been determined in accordance with the terms and conditions of this paragraph, (x) any Interest Rate Election that requests the conversion of any Loan to, or continuation of any Loan as, an Eurodollar Loan shall be ineffective, and (y) if any Borrowing Request requests an Eurodollar Loan, such Loan shall be made as an ABR Loan; provided that (subject to the first paragraph of this SECTION 2.13)
the LIBO Rate for such Interest Period is not available or published at such time on a current basis; provided, further, that, if such alternate rate of interest shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement. If the alternate rate of interest determined pursuant to this Section shall be less than zero (0), such rate shall be deemed to be zero (0) for the purposes of this Credit Agreement.
SECTION 2.14
Increased Costs; Illegality.
(a)
If any Change in Law shall:
(i)
subject any Recipient to any Taxes or withholding of any nature with respect to this Agreement, the other Loan Documents, such Lender’s Commitment, a Letter of Credit or the Loans (other than for Indemnified Taxes, Taxes described in clauses (b) through (d) of the definition of Excluded Taxes, and Connection Income Taxes), or
(ii)
materially change the basis of taxation (except for changes in taxes on gross receipts, income or profits or its franchise tax) of payments to any Recipient of the principal of or the interest on any Loans or any other amounts payable to any Lender under this Agreement or the other Loan Documents, or
(iii)
impose or increase or render applicable any special deposit, reserve, assessment, liquidity, capital adequacy or other similar requirements (whether or not having the force of law and which are not already reflected in any amounts payable by Borrower hereunder) against assets held by, or deposits in or for the account of, or loans by, or commitments of an office of any Lender, or
(iv)
impose on any Recipient any other conditions or requirements with respect to this Agreement, the other Loan Documents, the Loans, such Lender’s Commitment, a Letter of Credit or any class of loans or commitments of which any of the Loans or such Lender’s Commitment forms a part;
and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to such Lender or the Issuing Bank of participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest or otherwise), then the Borrower will pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Bank, as the case may be, for such additional costs incurred or reduction suffered..
(b)
If any Lender or Issuing Bank determines that any Change in Law regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender or Issuing Bank’s capital or on the capital of such Lender or Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made by , or participations in Letters of Credit held by, such Lender, or the Letter of Credit issued by the
Issuing Bank, to a level below that which such Lender or the Issuing Bank or such Lender or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender or Issuing Bank’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Bank or such Lender or Issuing Bank’s holding company for any such reduction suffered.
(c)
A certificate of a Lender or the Issuing Bank setting forth the amount or amounts necessary to compensate such Lender or the Issuing Bank or its holding company, as the case may be, as specified in
paragraph (a)
or
(b)
of this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender or the Issuing Bank, as the case may be, the amount shown as due on any such certificate within 10 days after receipt thereof.
(d)
Failure or delay on the part of any Lender or the Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such Lender's or the Issuing Bank's right to demand such compensation;
provided
that the Borrower shall not be required to compensate a Lender or the Issuing Bank pursuant to this Section for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or the 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 the Issuing Bank's intention to claim compensation therefor;
provided
further
that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.
(e)
If any Lender determines that any Change in Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable lending office to make, maintain or fund Loans whose interest is determined by reference to the Adjusted LIBO Rate or the LIBO Rate, as applicable, or to determine or charge interest rates based upon the Adjusted LIBO Rate or the LIBO Rate, as applicable, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower through Administrative Agent, the obligation of such Lender to make or maintain Eurodollar Loans shall be suspended, in each case until such Lender notifies Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice and demand from such Lender (with a copy to Administrative Agent) and subject to SECTION 2.18: (i) (x) all Eurodollar Loans of such Lender shall be converted to Base Rate Loans, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Loans to such day, or immediately, if such Lender may not lawfully continue to maintain any such Loans, or (y) if subclause (x) is not permitted by Legal Requirement, the Borrower shall prepay all Eurodollar Loans of such Lender, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Loans to such day, or immediately, if such Lender may not lawfully continue to maintain any such Loans; and (ii)
if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Adjusted LIBO Rate or LIBO Rate, Administrative Agent shall during the period of such suspension compute such Adjusted LIBO Rate or LIBO Rate applicable to such Lender based on the Alternate Base Rate until Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon such Adjusted LIBO Rate or LIBO Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.
SECTION 2.15
Break Funding Payments
. In the event of (a) the payment of any principal of any Eurodollar Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Revolving Loan on the date specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked under
Section 2.10(b)
), or (d) the assignment of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.18
, then, in any such event, the Borrower shall compensate each Lender for the loss, cost and expense attributable to such event. In the case of a Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to include an amount determined by such Lender to be the excess, if any, of (i) the amount of interest which would have accrued on the principal amount of such Loan had such event not occurred, at the Adjusted LIBO Rate that would have been applicable to such Loan, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Loan), over (ii) the amount of interest which would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such period, for dollar deposits of a comparable amount and period from other banks in the Eurodollar market. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.
SECTION 2.16
Taxes.
(a)
All payments by the Borrower or Guarantors hereunder and under any of the other Loan Documents shall be made without setoff or counterclaim, and free and clear of and without deduction or withholding for any Taxes, except as required by Legal Requirements. If any Legal Requirement (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 Legal Requirements and, if such Tax is an Indemnified Tax, then the sum payable by the Borrower or other applicable Guarantor shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to
additional sums payable under this SECTION 2.16) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made..
(b)
The Borrower and the Guarantors shall timely pay to the relevant Governmental Authority in accordance with Legal Requirements, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(c)
The Borrower and the Guarantors shall jointly and severally 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 2.16) 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; provided that the determinations in such statement are made on a reasonable basis and in good faith.
(d)
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 or a Guarantor has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower and the Guarantors to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of SECTION 9.04(c) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this subsection.
(e)
As soon as practicable after any payment of Taxes by the Borrower or any Guarantor to a Governmental Authority pursuant to this SECTION 2.16, such Borrower or such Guarantor 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.
(f)
(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 Legal Requirements 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 the immediately following clauses (ii)(A), (ii)(B) and (ii)(D)) 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.
(i)
Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Person:
(1)
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 electronic copy (or an original if requested by the Borrower or the Administrative Agent) of an executed IRS Form W-9 (or any successor form) certifying that such Lender is exempt from U.S. federal backup withholding tax;
(2)
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:
(A)
in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, an electronic copy (or an original if requested by the Borrower or the Administrative Agent) of an executed IRS Form W-8BEN or W-8BEN-E 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;
(B)
an electronic copy (or an original if requested by the Borrower or the Administrative Agent) of an executed IRS Form W-8ECI;
(C)
in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit H-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) executed copies of IRS Form W-8BEN or W-8BEN-E; or
(D)
to the extent a Foreign Lender is not the beneficial owner, an electronic copy (or an original if requested by the Borrower or the Administrative Agent) of an executed IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-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 H-4 on behalf of each such direct and indirect partner;
(3)
any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), an electronic copy (or an original if requested by the Borrower or the Administrative Agent) of any other form prescribed by Legal Requirements 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 Legal Requirements to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(4)
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 Legal Requirements and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by Legal Requirements (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.
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)
If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this SECTION 2.16 (including by the payment of additional amounts pursuant to this SECTION 2.16), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this SECTION 2.16 with respect to the Taxes giving rise to such refund), net of all reasonable third party out-of-pocket expenses (including Taxes) of such indemnified party actually incurred and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this subsection (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this subsection, in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this subsection the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund has not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This subsection shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it reasonably deems confidential) to the indemnifying party or any other Person.
(h)
Each party’s obligations under this SECTION 2.16 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)
The obligations of the Borrower to the Lenders under this Agreement (and of the Revolving Lenders to make payments to the Issuing Bank with respect to Letters of Credit and to each Swingline Lender with respect to Swingline Loans) shall be absolute, unconditional and irrevocable, and shall be paid and performed strictly in accordance with the terms of this Agreement, under all circumstances whatsoever, including, without limitation, the following circumstances: (i) any lack of validity or enforceability of any Letter of Credit; (ii) any improper use which may be made of any Letter of Credit or any improper acts or omissions of any beneficiary or transferee of any Letter of Credit in connection therewith; (iii) the existence of any claim, set-off, defense or any right which the Loan Parties or any of their Subsidiaries or Affiliates may have at any time against any beneficiary or any transferee of any Letter of Credit (or persons or entities for whom any such beneficiary or any such transferee may be acting) or the Lenders (other than the defense of payment to the Lenders in accordance with the terms of this Agreement) or any other person, whether in connection with any Letter of Credit, this Agreement, any other Loan Document, or any unrelated transaction; (iv) any draft, demand, certificate, statement or any other documents presented under any Letter of Credit proving to be insufficient, forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect whatsoever; (v) any breach of any agreement between Borrower or any of its Subsidiaries or Affiliates and any beneficiary or transferee of any Letter of Credit; (vi) any irregularity in the transaction with respect to which any Letter of Credit is issued, including any fraud by the beneficiary or any transferee of such Letter of Credit; (vii) payment by the Issuing Bank under any Letter of Credit against presentation of a sight draft, demand, certificate or other document which does not comply with the terms of such Letter of Credit, provided that such payment shall not have constituted gross negligence or willful misconduct on the part of the Issuing Bank as determined by a court of competent jurisdiction after the exhaustion of all applicable appeal periods; (viii) any non-application or misapplication by the beneficiary of a Letter of Credit of the proceeds of such Letter of Credit; (ix) the legality, validity, form, regularity or enforceability of the Letter of Credit; (x) the failure of any payment by Issuing Bank to conform to the terms of a Letter of Credit (if, in Issuing Bank’s good faith judgment, such payment is determined to be appropriate); (xi) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; (xii) the occurrence of any Default or Event of Default; and (xiii) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, provided that nothing contained herein shall relieve Issuing Bank, Administrative Agent or any Lender for liability to Borrower arising as a result of gross negligence or willful misconduct on the part of the Issuing Bank, Administrative Agent, any Lender or any Swingline Lender, as applicable as determined by a court of competent jurisdiction after the exhaustion of all applicable appeal periods.
SECTION 2.17
Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a)
The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under
Section 2.14
,
2.15
or
2.16
, or otherwise) prior to 1:00 p.m., Boston, Massachusetts time, on the date when due, in immediately available funds, without set-off
or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its main offices in Cleveland, Ohio, except payments to be made directly to the Issuing Bank or any Swingline Lender as expressly provided herein and except that payments pursuant to
Sections 2.14
,
2.15
,
2.16
and
9.03
shall be made directly to the Persons entitled thereto. If the Administrative Agent receives a payment for the account of a Lender prior to 1:00 p.m., Boston, Massachusetts time, such payment must be delivered to the Lender on the same day and if it is not so delivered due to the fault of the Administrative Agent, the Administrative Agent shall pay to the Lender entitled to the payment interest thereon for each day after payment should have been received by the Lender pursuant hereto until the Lender receives payment, at the Federal Funds Effective Rate. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in Dollars.
(b)
If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c)
If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans of any Class or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans of any applicable Class and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender of such Class, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans of such Class and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders of each Class ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which
the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d)
Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders of each applicable Class or the Issuing Bank, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders of such Class or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the Federal Funds Effective Rate.
(e)
If any Lender shall fail to make any payment required to be made by it pursuant to
2.06(b)
or
2.17(d)
, then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender's obligations under such Sections until all such unsatisfied obligations are fully paid.
(f)
If, as a result of any restatement of or other adjustment to the financial statements of Parent or Borrower or for any other reason, Parent, Borrower, Administrative Agent, or the Lenders determine that (i) the Consolidated Leverage Ratio as calculated by Parent and Borrower as of any applicable date was inaccurate and (ii) a proper calculation of the Consolidated Leverage Ratio would have resulted in higher or lower pricing for such period, then (A) if the proper calculation results in a higher pricing for such period, Borrower shall immediately and retroactively be obligated to pay to Administrative Agent for the account of the applicable Lenders, within three (3) Business Days after demand by Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Credit Party under the Bankruptcy Code of the United States, automatically and without further action by Administrative Agent or any Lender), an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period, and (B) if the proper calculation results in a lower pricing for such period, Borrower shall receive a credit or refund of any overpayment promptly after such determination. This paragraph shall not limit the rights of Administrative Agent or any Lender, as the case may be, under Section 2.12(c) or under Article VII (in each instance to the extent the Borrower is in violation of Section 5.02(a) or such restatement of or other adjustment or recalculation otherwise constitutes an Event of Default hereunder). To the extent that Administrative Agent makes any determination under this Section 2.17(f) based on computations provided by anyone
other than Borrower, Administrative Agent shall deliver a copy of same to the Borrower prior to the demand for excess interest and fees.
(g)
Except to the extent otherwise provided herein: (i) each Borrowing of Revolving Loans shall be made from the Revolving Lenders, each payment of the fees under Sections 2.11(a), (b), (d) and (g) shall be made for the account of the Revolving Lenders, and each termination or reduction of the amount of the Revolving Commitments under Section 2.08 shall be applied to the respective Revolving Commitments of the Revolving Lenders, pro rata according to the amounts of their respective Revolving Loan Applicable Percentages; (ii) each payment or prepayment of principal of Revolving Loans shall be made for the account of the Revolving Lenders pro rata in accordance with the respective unpaid principal amounts of the Revolving Loans held by them, provided that, subject to SECTION 2.20, if immediately prior to giving effect to any such payment in respect of any Revolving Loans the outstanding amount of the Revolving Loans shall not be held by the Revolving Lenders pro rata in accordance with their respective Revolving Commitments in effect at the time such Revolving Loans were made, then such payment shall be applied to the Revolving Loans in such manner as shall result, as nearly as is practicable, in the outstanding amount of the Revolving Loans being held by the Revolving Lenders pro rata in accordance with such respective Revolving Loan Applicable Percentages; (iii) the making of a Class of Term Loans under Section 2.01(b), (c), or (d) shall be made from the applicable Class of Term Lenders, pro rata according to the amounts of their respective Term Commitments of such Class; (iv) each payment or prepayment of principal of a Class of Term Loans shall be made for the account of the Term Lenders of such Class pro rata in accordance with the respective unpaid principal amounts of such Class of Term Loans held by them; (v) each payment of interest of a Class of Loans shall be made for the account of the Lenders of such Class pro rata in accordance with the amounts of interest on such Class of Loans then due and payable to the respective Class of Lenders; (vi) the making, conversion and continuation of Loans of a particular Class and Type (other than conversions provided for by SECTION 2.14(e)) shall be made pro rata among the Lenders of such Class according to the outstanding amounts of their respective Loans of such Class and the then current Interest Period for each Lender’s portion of each such Loan of such Class and Type shall be coterminous; and (vii) the Revolving Lenders’ participation in, and payment obligations in respect of, Swingline Loans under Section 2.04, shall be in accordance with their respective Revolving Loan Applicable Percentages. All payments of principal, interest, fees and other amounts in respect of the Swingline Loans shall be for the account of the Swingline Lenders only (except to the extent any Revolving Lender shall have acquired and funded a participating interest in any such Swingline Loan pursuant to Section 2.04, in which case such payments shall be pro rata in accordance with such participating interests).
SECTION 2.18
Mitigation Obligations; Replacement of Lenders.
(a)
Each Lender and the Issuing Bank will notify the Borrower of any event occurring after the date of this Agreement which will entitle such Person to compensation pursuant to
Sections 2.14
and
2.16
as promptly as practicable after it obtains knowledge thereof and determines to request such compensation, provided that such Person shall not
be liable for the failure to provide such notice. If any Lender or the Issuing Bank requests compensation under
Section 2.14
, or if the Borrower is required to pay any additional amount to any such Person or any Governmental Authority for the account of any Lender pursuant to
Section 2.16
, or if any Lender or the Letter of Credit Issuer gives a notice pursuant to
Section 2.14(e)
, then such Lender or the Issuing Bank shall use reasonable efforts to avoid or minimize the amounts payable, including, without limitation, the designation of a different lending office for funding or booking its Loans and Letters of Credit hereunder or the assignment of its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender or the Issuing Bank, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to
Section 2.14 or 2.16
, as the case may be, in the future or eliminate the need for the notice pursuant to
Section 2.14(e)
, as applicable, and (ii) would not subject such Lender or the Issuing Bank to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender or the Issuing Bank. The Borrower hereby agrees to pay all reasonable and documented costs and expenses incurred by any Lender or the Issuing Bank in connection with any such designation or assignment.
(b)
If any Lender requests compensation under
Section 2.14
, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to
Section 2.16
, or if any Lender defaults in its obligation to fund Loans hereunder, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in
Section 9.04
), all its interests, rights and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment);
provided
that (i) the Borrower shall have received the prior written consent of the Administrative Agent (and, if a Commitment is being assigned, the Issuing Bank), which consent shall not unreasonably be withheld, (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and participations in LC Disbursements and Swingline Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts), and (iii) in the case of any such assignment resulting from a claim for compensation under
Section 2.14
or payments required to be made pursuant to
Section 2.16
, such assignment will result in a reduction in such compensation or payments. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
SECTION 2.19
Extension
.
(a)
So long as no Event of Default or Default shall be in existence on the date on which notice is given in accordance with the following clause (i) and on the Revolving Loan Maturity Date, Borrower may extend the Revolving Loan Maturity Date to June 28, 2023, upon satisfaction of the following: (i) delivery of a written request to Administrative
Agent at least sixty (60) days, but no more than one hundred twenty (120) days, prior to the Revolving Loan Maturity Date then in effect; (ii) payment to Administrative Agent for the benefit of the Revolving Lenders of the extension fee set forth in
Section 2.11(g)
, which fee shall be payable on or before the then applicable Revolving Loan Maturity Date; and (iii) payment by Borrower of all fees and expenses to Administrative Agent and the Lenders to the extent then due. Such extension shall be evidenced by delivery of written confirmation of the same by Administrative Agent to Borrower, but Administrative Agent’s failure to timely deliver the notice shall not affect Borrower’s right to extend so long as the conditions contained herein are satisfied.
(b)
If the Revolving Loan Maturity Date is extended, all of the other terms and conditions of this Agreement and the other Loan Documents (including interest payment dates) shall remain in full force and effect and unmodified, except as expressly provided for herein. The extension of the Revolving Loan Maturity Date is subject to the satisfaction of each of the following additional conditions:
(i)
The representations and warranties of each Credit Party set forth in this Agreement or any other Loan Document to which such Credit Party is a signatory shall be true and correct in all material respects on the date that the extension request is given to the Administrative Agent and on the first day of the extension (except to the extent such representations and warranties relate to a specified date);
(ii)
no Default or Event of Default has occurred and is continuing on the date on which the Borrower gives the Administrative Agent the extension request or on the first day of the extension;
(iii)
the Borrower shall be in compliance with all of the financial covenants set forth in
Section 5.02
hereof both on the date on which the extension request is given to the Administrative Agent and on the first day of the extension;
(iv)
the Borrower shall have paid to the Administrative Agent all amounts then due and payable to any of the Lenders, the Issuing Bank and the Administrative Agent under the Loan Documents, including the extension fee described in
Section 2.11(g)
hereof;
(v)
the Borrower shall pay for any and all reasonable out-of-pocket costs and expenses, including, reasonable attorneys’ fees and disbursements, incurred by the Administrative Agent in connection with or arising out of the extension of the Revolving Loan Maturity Date;
(vi)
the Borrower shall execute and deliver to Administrative Agent such other documents, financial statements, instruments, certificates, opinions of counsel, reports, or amendments to the Loan Documents as the Administrative Agent shall reasonably request regarding the Credit Parties as shall be necessary to effect such extension; and
(vii)
a written agreement evidencing the extension is signed by the Administrative Agent, the Credit Parties and any other Person to be charged with compliance therewith, which agreement such parties agree to execute if the extension conditions set forth above have been satisfied.
SECTION 2.20
Defaulting Lenders
.
(a)
Adjustments. Notwithstanding anything to the contrary contained in this Credit Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:
(i)
Waivers and Amendments. That Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Credit Agreement shall be restricted as set forth in the definitions of “Majority Lenders”, “Majority Class Lenders” and in
Section 9.02
.
(ii)
Reallocation of Payments. Any payment of principal, interest, fees or other amounts received by Administrative Agent for the account of a Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to ARTICLE VII or otherwise, and including any amounts made available to Administrative Agent by that Defaulting Lender pursuant to
Section 9.08
), shall be applied at such time or times as may be determined by Administrative Agent as follows:
first
, to the payment of any amounts owing by that Defaulting Lender to Administrative Agent hereunder;
second
, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the Issuing Bank or the Swingline Lenders hereunder;
third
, if so determined by Administrative Agent or requested by the Issuing Bank or any Swingline Lender, to be held as cash collateral for future funding obligations of such Defaulting Lender of any participation in any outstanding and undrawn Letter of Credit;
fourth
, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Credit Agreement, as determined by Administrative Agent;
fifth
, if so determined by Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of such Defaulting Lender to fund Loans under this Credit Agreement;
sixth
, to the payment of any amounts owing to the non-Defaulting Lenders, the Issuing Bank or any Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Bank or any Swingline Lender against such Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Credit Agreement;
seventh
, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Credit Agreement; and
eighth
, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if: (x) (A) such payment is a payment of the principal amount of any
Revolving Loans or L/C Disbursements in respect of which such Defaulting Lender has not fully funded its appropriate share; and (B) such Revolving Loans or L/C Disbursements were made at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Revolving Loans of, and L/C Disbursements owed to, all non-Defaulting Lenders that are Revolving Lenders on a pro rata basis prior to being applied to the payment of any Revolving Loans of, or L/C Disbursements owed to, such Defaulting Lender until such time as all Revolving Loans and funded and unfunded participations in Letter of Credit Obligations and Swingline Loans are held by the Revolving Lenders pro rata in accordance with the Revolving Loan Applicable Percentages without giving effect to subsection (a)(iv) below and (y)(A) such payment is a payment of the principal amount of any Class of Term Loans in respect of which such Defaulting Lender has not fully funded its share, and (B) such Term Loans were made at a time when the conditions set forth in Section 4.2 were satisfied or waived, such payment shall be applied solely to pay the Term Loans of such Class of all non-Defaulting Lenders of such Class on a pro rata basis prior to being applied to the payment of any Term Loans of such Defaulting Lender until such time as all Term Loans of such Class are held by the Term Lenders of such Class pro rata in accordance with the Term Commitments for such Class of Term Loans. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.18(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(iii)
Certain Fees. A Defaulting Lender: (x) shall not be entitled to receive any Unused Fee or Facility Fee or unused fee in respect of any 2023 Term Commitment pursuant to Section 2.11 for any period during which such Lender is a Defaulting Lender with respect to each applicable Class (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to such Defaulting Lender); and (y) shall be limited in its right to receive Letter of Credit fees as provided in Section 2.11.
(iv)
Reallocation of Revolving Loan Applicable Percentages to Reduce L/C Exposure. During any period in which there is a Defaulting Lender which is a Revolving Lender, for purposes of computing the amount of the obligation of each non-Defaulting Lender which is a Revolving Lender to acquire, refinance or fund participations in Letters of Credit or Swingline Loans, the “Revolving Loan Applicable Percentage” of each non-Defaulting Revolving Lender shall be computed without giving effect to the Commitment of such Defaulting Lender; provided, that: (A) each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Default or Event of Default exists; and (B) the aggregate obligation of each non-Defaulting Lender which is a Revolving Lender to acquire, refinance or fund participations in Letters of Credit or Swingline Loans shall not exceed the positive difference, if any, of: (1) the Commitment of such non-
Defaulting Lender; minus (2) the aggregate outstanding principal amount of the Revolving Loans of such Lender.
(b)
Defaulting Lender Cure. If the Borrower and Administrative Agent agree in writing in their reasonable discretion that a Defaulting Lender has taken such action that it should no longer be deemed to be a Defaulting Lender, Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any cash collateral), such Defaulting Lender will, to the extent applicable, (i) if a Revolving Lender, purchase that portion of outstanding Revolving Loans of the other Revolving Lenders or take such other actions as Administrative Agent may determine to be necessary to cause the Revolving Loans to be held on a pro rata basis by the Lenders in accordance with their Revolving Credit Applicable Percentages, and/or (ii) if a Term Lender of a Class of Term Loans will, if at such time the Term Commitments of such Class have not been fully utilized or terminated and to the extent applicable, purchase that portion of the outstanding Term Loans of such Class of the other Term Lenders of such Class to cause the Term Loans of such Class to be held by the Term Lenders of such Class pro rata in accordance with the Term Loan Commitments for such Class of Term Loans as if there had been no Defaulting Lender of such Class, whereupon such Defaulting Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no cessation in status as Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising during the period that such Lender was a Defaulting Lender.
SECTION 2.21
Amendment and Restatement; Reallocation of Lender Pro Rata Shares; No Novation
.
On the Effective Date, except to the extent repaid on the Effective Date, the Loans and related Obligations made under the Existing Credit Agreement shall be deemed to have been made under this Agreement, without the execution by the Borrower or the Lenders of any other documentation, and all such Loans currently outstanding shall be deemed to have been simultaneously reallocated among the Lenders as follows:
(a)
On the Effective Date, each Lender that will have a greater Revolving Loan Applicable Percentage or 2023 Term Loan Applicable Percentage upon the Effective Date than its Revolving Loan Applicable Percentage (under and as defined in the Existing Credit Agreement) or Term Loan Applicable Percentage (under and as defined in the Existing Credit Agreement), respectively, immediately prior to the Effective Date (each, a “
Purchasing Lender
”), without executing an Assignment and Acceptance, shall be deemed to have purchased assignments pro rata from each Lender in the applicable Class that will have a smaller Revolving Loan Applicable Percentage (under and as defined in the Existing Credit Agreement) or Term Loan Applicable Percentage (under and as defined in the Existing Credit Agreement), respectively, upon the Effective Date than its Revolving Loan Applicable Percentage (under and as defined in the Existing Credit Agreement) or Term Loan Applicable Percentage (under and as defined in the Existing Credit Agreement), respectively, immediately prior to the Effective Date (each, a “
Selling Lender
”) in all such
Selling Lender’s rights and obligations under this Agreement and the other Loan Documents as a Lender (collectively, the “
Lender Assigned Rights and Obligations
”) so that, after giving effect to such assignments, each Lender shall have its respective Commitments of each Class as set forth in Schedule 2.01 hereto and a corresponding Revolving Loan Applicable Percentage or 2023 Term Loan Applicable Percentage, as applicable, of all Loans and other Revolving Credit Exposure then outstanding under such Class. Each such purchase hereunder shall be at par for a purchase price equal to the principal amount of the loans and other participation and without recourse, representation or warranty, except that each Selling Lender shall be deemed to represent and warrant to each applicable Purchasing Lender that the Lender Assigned Rights and Obligations of such Selling Lender being assigned to such Purchasing Lender are not subject to any Liens created by that Selling Lender. For the avoidance of doubt, in no event shall the aggregate amount of each Lender’s Revolving Credit Exposure outstanding at any time exceed its Revolving Commitment or the principal amount of its 2023 Term Loans exceed its 2023 Term Commitment, in each case, as set forth in Schedule 2.01 hereto.
(b)
The Administrative Agent shall calculate the net amount to be paid or received by each Lender in connection with the assignments effected hereunder on the Effective Date. Each Lender required to make a payment pursuant to this Section shall make the net amount of its required payment available to the Administrative Agent, in same day funds, at the office of the Administrative Agent not later than 12:00 P.M. (New York time) on the Effective Date. The Administrative Agent shall distribute on the Effective Date the proceeds of such amounts to the Lenders entitled to receive payments pursuant to this Section, pro rata in proportion to the amount each such Lender is entitled to receive at its primary address or at such other address as such Lender may request in writing to the Administrative Agent.
(c)
Nothing in this Agreement shall be construed as a discharge, extinguishment or novation of the “Obligations” of the Loan Parties outstanding under the Existing Credit Agreement, which Obligations shall remain outstanding under this Agreement after the date hereof as “Revolving Loans” or “2023 Term Loans”, as applicable, except as expressly modified hereby or by instruments executed concurrently with this Agreement.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Lenders, the Administrative Agent and the Issuing Bank that:
SECTION 3.01
Organization; Powers
. Each Credit Party is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, has all requisite power and authority to carry on its business as now conducted and, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required.
SECTION 3.02
Authorization; Enforceability
. The Transactions are within the corporate, partnership or limited liability company powers (as applicable) of the respective Credit Parties and have been duly authorized by all necessary corporate, partnership or limited liability company action. This Agreement and the Loan Documents have been duly executed and delivered by each Credit Party which is a party thereto and constitute the legal, valid and binding obligation
of each such Person, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
SECTION 3.03
Governmental Approvals; No Conflicts
. The Transactions (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect or which shall be completed at the appropriate time for such filings under applicable securities laws, (b) will not violate any applicable law or regulation or the charter, by-laws or other organizational documents of any Credit Party or any of the Borrower’s Subsidiaries or any order of any Governmental Authority, (c) will not violate or result in a default under any indenture, agreement or other instrument binding upon any Credit Party or any of the Borrower’s Subsidiaries or its assets, or give rise to a right thereunder to require any payment to be made by any Credit Party or any of the Borrower’s Subsidiaries, and (d) will not result in the creation or imposition of any Lien on any asset of any Credit Party or any of the Borrower’s Subsidiaries, except for the benefit of Administrative Agent on behalf of the Lenders as contemplated herein.
SECTION 3.04
Financial Condition; No Material Adverse Change.
(a)
The Borrower has heretofore furnished to the Lenders management prepared financial statements as of and for the fiscal quarter ended December 31, 2018, for Borrower and the Parent. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Parent and its consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP, subject to year-end audit adjustments.
(b)
Since December 31, 2018, no event has occurred which could reasonably be expected to have a Material Adverse Effect.
SECTION 3.05
Properties.
(a)
Subject to Liens permitted by
Section 6.01
, each of the Borrower and its Subsidiaries has title to, or valid leasehold interests in, all its real and personal property material to its business, except for minor defects in title that do not interfere with its ability to conduct its business as currently conducted or to utilize such properties for their intended purposes.
(b)
Each of the Borrower and its Subsidiaries owns, or is licensed to use, all patents and other intellectual property material (excluding the rights to use the name “Griffin”) to the Borrower’s business, and the use thereof by the Borrower and its Subsidiaries does not infringe upon the rights of any other Person, except for any such infringements that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
(c)
All components of all improvements included within the Real Property owned or leased, as lessee, by any Credit Party, including, without limitation, the roofs and
structural elements thereof and the heating, ventilation, air conditioning, plumbing, electrical, mechanical, sewer, waste water, storm water, paving and parking equipment, systems and facilities included therein, are in good working order and repair, subject to such exceptions which are not reasonably likely to have, in the aggregate, a Material Adverse Effect. All water, gas, electrical, steam, compressed air, telecommunication, sanitary and storm sewage lines and systems and other similar systems serving the Real Property owned or leased by any Credit Party are installed and operating and are sufficient to enable the Real Property to continue to be used and operated in the manner currently being used and operated, and no Credit Party has any knowledge of any factor or condition that reasonably could be expected to result in the termination or material impairment of the furnishing thereof, subject to such exceptions which are not likely to have, in the aggregate, a Material Adverse Effect. No improvement or portion thereof is dependent for its access, operation or utility on any land, building or other improvement not included in the Real Property owned or leased by the Borrower or its Subsidiaries, other than for access or utilities provided pursuant to a recorded easement or other right of way establishing the right of such access or utilities subject to such exceptions which are not likely to have, in the aggregate, a Material Adverse Effect.
(d)
To each Credit Party’s knowledge, all franchises, licenses, authorizations, rights of use, governmental approvals and permits (including all certificates of occupancy and building permits) required to have been issued by Governmental Authority to enable all Real Property owned or leased by Borrower or any of its Subsidiaries to be operated as then being operated have been lawfully issued and are in full force and effect, other than those which the failure to obtain in the aggregate could not be reasonably expected to have a Material Adverse Effect. No Credit Party is in violation of the terms or conditions of any such franchises, licenses, authorizations, rights of use, governmental approvals and permits, which violation would reasonably be expected to have a Material Adverse Effect.
(e)
None of the Credit Parties has received any notice or has any knowledge, of any pending, threatened or contemplated condemnation proceeding affecting any Real Property owned or leased by Borrower or any of its Subsidiaries or any part thereof, or any proposed termination or impairment of any parking (except as contemplated in any approved expansion approved by Administrative Agent), at any such owned or leased Real Property or of any sale or other disposition of any Real Property owned or leased by Borrower or any of its Subsidiaries or any part thereof in lieu of condemnation, which in the aggregate, are reasonably likely to have a Material Adverse Effect.
(f)
Except for events or conditions not reasonably likely to have, in the aggregate, a Material Adverse Effect, (i) no portion of any Real Property owned or leased by Borrower or any of its Subsidiaries has suffered any material damage by fire or other casualty loss which has not heretofore been completely repaired and restored to its condition prior to such casualty, and (ii) no portion of any Real Property owned or leased by Borrower or any of its Subsidiaries is located in a special flood hazard area as designated by any federal Government Authorities or any area identified by the insurance industry or other experts
acceptable to the Administrative Agent as an area that is a high probable earthquake or seismic area, except as set forth on
Schedule 3.05(f)
.
(g)
There are no Persons operating or managing any Pool Property other than the Borrower and the Management Company pursuant to (i) the management agreements delivered to Administrative Agent as of the Effective Date, and (ii) such other management agreements in form and substance reasonably satisfactory to the Administrative Agent. To Borrower’s knowledge, no improvement or portion thereof, or any other part of any Real Property, is dependent for its access, operation or utility on any land, building or other improvement not included in the Real Property owned or leased by the Borrower or its Subsidiaries, other than for access provided pursuant to a recorded easement or other right of way establishing the right of such access.
SECTION 3.06
Intellectual Property
. To the knowledge of each Credit Party, such Credit Party owns, or is licensed to use, all patents and other intellectual property material (excluding such rights relating to use of the name “Griffin”) to its business, and the use thereof by such Credit Party does not infringe upon the rights of any other Person, except for any such infringements that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. To the knowledge of each Credit Party, there are no material slogans or other advertising devices, projects, processes, methods, substances, parts or components, or other material now employed, or now contemplated to be employed, by any Credit Party with respect to the operation of any Real Property, and no claim or litigation regarding any slogan or advertising device, project, process, method, substance, part or component or other material employed, or now contemplated to be employed by any Credit Party, is pending or threatened, the outcome of which could reasonably be expected to have a Material Adverse Effect.
SECTION 3.07
Litigation and Environmental Matters.
(a)
Except as set forth in Schedule 3.07 attached hereto, there are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of the Borrower, threatened against or affecting any Credit Party or any of the Borrower’s Subsidiaries (i) as to which there is a reasonable possibility of an adverse determination and that, if adversely determined, could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect or (ii) that involve this Agreement or the Transactions.
(b)
Except as disclosed in the environmental reports delivered to the Administrative Agent (which the Administrative Agent shall promptly deliver to the Lenders) obtained with respect to a Real Property and with respect to any other matters that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect:
(i)
to the knowledge of the Credit Parties, all Real Property leased or owned by Borrower or any of its Subsidiaries is free from contamination by any Hazardous Material, except to the extent such contamination could not reasonably be expected to cause a Material Adverse Effect;
(ii)
to the knowledge of the Credit Parties, the operations of Borrower and its Subsidiaries, and the operations at the Real Property leased or owned by Borrower or any of its Subsidiaries are in compliance with all applicable Environmental Laws, except to the extent such noncompliance could not reasonably be expected to cause a Material Adverse Effect;
(iii)
neither the Borrower nor any of its Subsidiaries have known liabilities with respect to Hazardous Materials and, to the knowledge of each Credit Party, no facts or circumstances exist which could reasonably be expected to give rise to liabilities with respect to Hazardous Materials, in either case, except to the extent such liabilities could not reasonably be expected to have a Material Adverse Effect;
(iv)
To the best of the Borrower’s knowledge, (A) the Borrower and its Subsidiaries and all Real Property owned or leased by Borrower or its Subsidiaries have all Environmental Permits necessary for the operations at such Real Property and are in compliance with such Environmental Permits; (B) there are no legal proceedings pending nor, to the knowledge of any Credit Party, threatened to revoke, or alleging the violation of, such Environmental Permits; and (C) none of the Credit Parties have received any notice from any source to the effect that there is lacking any Environmental Permit required in connection with the current use or operation of any such properties, in each case, except to the extent the nonobtainment or loss of an Environmental Permit could not reasonably be expected to have a Material Adverse Effect;
(v)
neither the Real Property currently leased or owned by Borrower nor any of its Subsidiaries, nor, to the knowledge of any Credit Party, (x) any predecessor of any Credit Party, nor (y) any of Credit Parties’ Real Property owned or leased in the past, nor (z) any owner of Real Property leased or operated by Borrower or any of its Subsidiaries, are subject to any outstanding written order or contract, including Environmental Liens, with any Governmental Authority or other Person, or to any federal, state, local, foreign or territorial investigation of which a Credit Party has been given notice respecting (A) Environmental Laws, (B) Remedial Action, (C) any Environmental Claim; or (D) the Release or threatened Release of any Hazardous Material, in each case, except to the extent such written order, contract or investigation could not reasonably be expected to have a Material Adverse Effect;
(vi)
none of the Credit Parties are subject to any pending legal proceeding alleging the violation of any Environmental Law nor, to the knowledge of each Credit Party, are any such proceedings threatened, in either case, except to the extent any such proceedings could not reasonably be expected to have a Material Adverse Effect;
(vii)
neither the Borrower nor any of its Subsidiaries nor, to the knowledge of each Credit Party, any predecessor of any Credit Party, nor to the knowledge of each Credit Party, any owner of Real Property leased by Borrower or any of its Subsidiaries, have filed any notice under federal, state or local, territorial or foreign law indicating past or present treatment, storage, or disposal of or reporting a Release
of Hazardous Material into the environment, in each case, except to the extent such Release of Hazardous Material could not reasonably be expected to have a Material Adverse Effect;
(viii)
none of the operations of the Borrower or any of its Subsidiaries or, to the knowledge of each Credit Party, of any owner of premises currently leased by Borrower or any of its Subsidiaries or of any tenant of premises currently leased from Borrower or any of its Subsidiaries, involve or previously involved the generation, transportation, treatment, storage or disposal of hazardous waste, as defined under 40 C.F.R. Part 261.3 (in effect as of the date of this Agreement) or any state, local, territorial or foreign equivalent, in violation of Environmental Laws; and
(ix)
to the knowledge of the Credit Parties, there is not now, nor has there been in the past (except, in all cases, to the extent the existence thereof could not reasonably be expected to have a Material Adverse Effect), on, in or under any Real Property leased or owned by Borrower or any of its Subsidiaries, or any of their predecessors (A) any underground storage tanks or surface tanks, dikes or impoundments (other than for surface water); (B) any friable asbestos-containing materials; (C) any polychlorinated biphenyls; or (D) any radioactive substances other than naturally occurring radioactive material.
SECTION 3.08
Compliance with Laws and Agreements
. Each of the Credit Parties is in compliance with all laws, regulations and orders of any Governmental Authority applicable to it or its property and all indentures, agreements and other instruments binding upon it or to its knowledge, its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. No Default has occurred and is continuing.
SECTION 3.09
Investment and Holding Company Status
. Neither any of the Credit Parties nor any of the Borrower’s Subsidiaries is (a) an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940 or (b) a “holding company” as defined in, or subject to regulation under, the Public Utility Holding Company Act of 1935.
SECTION 3.10
Taxes
. Each Credit Party and each of the Borrower’s Subsidiaries has timely filed or caused to be filed all Tax returns and reports required to have been filed and has paid or caused to be paid all Taxes required to have been paid by it, except (a) Taxes that are being contested in good faith by appropriate proceedings and for which such Person has set aside on its books adequate reserves or (b) to the extent that the failure to do so could not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.11
ERISA
. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to result in a Material Adverse Effect. The Borrower does not have any Plans as of the date hereof. As to any future Plan the present value of all accumulated benefit obligations under each Plan (based on the assumptions used for purposes of
Statement of Financial Accounting Standards No. 87) will not exceed the fair market value of the assets of such Plan, and the present value of all accumulated benefit obligations of all underfunded Plans (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) will not exceed the fair market value of the assets of all such underfunded Plans.
SECTION 3.12
Disclosure
. The Borrower has disclosed or made available to the Lenders all agreements, instruments and corporate or other restrictions to which it, any other Credit Party, or any of its Subsidiaries is subject, and all other matters known to it, that, in the aggregate, could reasonably be expected to result in a Material Adverse Effect. None of the reports, financial statements, certificates or other information furnished by or on behalf of the Borrower to the Administrative Agent or any Lender in connection with the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that, with respect to projected financial information, the Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time.
SECTION 3.13
Insurance
. Borrower shall maintain (or cause its Subsidiaries (or tenants)) to maintain insurance (on a replacement cost basis) with financially sound and reputable insurance companies against such risks and in such amounts as is customarily maintained by Persons engaged in similar businesses or as may be required by any Legal Requirement. The Borrower shall from time to time deliver to the Administrative Agent upon request a reasonably detailed list, together with copies of all certificates of the insurance then in effect, stating the names of the insurance companies, the amounts and rates of the insurance, the dates of the expiration thereof and the properties and risks covered thereby. Such insurance shall, in any event, include terrorism coverage, but solely to the extent that such coverage is available on commercially reasonable terms (including price).
SECTION 3.14
Margin Regulations
. The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board), and no proceeds of any Loan or Letter of Credit will be used to purchase or carry any margin stock.
SECTION 3.15
Subsidiaries; REIT Qualification
. As of the Effective Date, the Parent has only the Subsidiaries listed on
Schedule 3.15
attached hereto. The Borrower qualifies as a “qualified REIT subsidiary” under Section 856 of the Code. The Parent is a Maryland corporation duly organized pursuant to articles of incorporation filed with the Maryland Department of Assessments and Taxation, and is in good standing under the laws of Maryland. The Parent conducts its business in a manner which enables it to qualify as a real estate investment trust under, and to be entitled to the benefits of, §856 of the Code, and has elected to be treated as and will be entitled to the benefits of a real estate investment trust thereunder. None of the Parent, the Borrower or any Subsidiary is an EEA Financial Institution.
SECTION 3.16
OFAC
. None of the Borrower, any of the other Credit Parties, any of the other Subsidiaries, or any other Affiliate of the Borrower is (or will be) (i) a Sanctioned
Person, (ii) located, organized or resident in a Designated Jurisdiction, (iii) to the best of the Borrower’s knowledge, without any independent inquiry, is or has been (within the previous five (5) years) engaged in any transaction with any Sanctioned Person or any Person who is located, organized or resident in any Designated Jurisdiction to the extent that such transactions would violate Sanctions, or (iv) has violated any Anti-Money Laundering Law in any material respect. Each of the Credit Parties and its Subsidiaries, and to the knowledge of the Credit Parties, each director, officer, employee, agent and Affiliate of the Credit Parties and each such Subsidiary, is in compliance with the Anti-Corruption Laws in all material respects. The Loan Parties have implemented and maintain in effect policies and procedures designed to promote and achieve compliance with the Anti-Corruption Laws and applicable Sanctions. No Credit Party shall permit the proceeds of any Loan or Letter of Credit: (a) to be lent, contributed or otherwise made available to fund any activity or business in any Designated Jurisdiction; (b) to fund any activity or business of any Sanctioned Person or any Person located, organized, formed, incorporated or residing in any Designated Jurisdiction or who is the subject of any Sanctions; (c) in any other manner that will result in any material violation by any Person (including any Lender or Administrative Agent) of any Sanctions; or (d) to be used in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws.
SECTION 3.17
Beneficial Ownership Certification
. The information included in the Beneficial Ownership Certification is true and correct in all respects.
ARTICLE IV
Conditions
SECTION 4.01
Effective Date
. The obligations of the Lenders to make Revolving Loans and to fund any Term Loan hereunder and of the Issuing Bank to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with
Section 9.02
):
(a)
The Administrative Agent (or its counsel) shall have received from each Credit Party either (i) a counterpart of this Agreement and all other Loan Documents to which it is party signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy or other electronic transmission of a signed signature page of each such Loan Document other than the Notes) that such party has signed a counterpart of the Loan Documents, together with copies of all Loan Documents.
(b)
The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Effective Date) of Bryan Cave LLP, counsel for the Borrower and each Guarantor, and such other counsel as the Administrative Agent may approve, covering such matters relating to the Credit Parties, the Loan Documents or the Transactions as the Majority Lenders shall reasonably request. The Borrower hereby requests such counsel to deliver such opinion.
(c)
The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Credit Parties, the authorization of the Transactions and any other legal matters relating to the Credit Parties, this Agreement (including each Credit Party's compliance with Section 9.14 and other customary “know your customer” requirements) or the Transactions, all in form and substance satisfactory to the Administrative Agent and its counsel.
(d)
The Administrative Agent shall have received a Compliance Certificate and Borrowing Base Certificate, signed by a Financial Officer of Borrower, in form and substance satisfactory to the Administrative Agent, based on the consolidated financial statements for the fiscal quarter ended December 31, 2018 and after giving effect to the borrowing of all amounts intended to be borrowed hereunder on the Effective Date and the application of proceeds of such borrowings to the repayment of Indebtedness intended to be repaid therefrom, and the Merger.
(e)
The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(f)
The Administrative Agent shall have received copies of all other Loan Documents, and such other due diligence information as the Administrative Agent may reasonably require.
(g)
Upon the reasonable request of any Lender made at least ten (10) days prior to the Effective Date, Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Patriot Act, in each case at least five (5) days prior to the Effective Date.
(h)
At least five (5) days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower.
(i)
The Administrative Agent shall have received satisfactory evidence that, simultaneously with the initial funding of Loans on the Effective Date, the Merger shall have been consummated in accordance with the terms and conditions of the applicable Merger Documents therefor and all Legal Requirements.
(j)
The Administrative Agent shall have received true and correct copies of all Merger Documents (with those Merger Documents which were executed on or before the Effective Date (together with the exhibits and schedules thereto to the extent finalized on or prior to such date) to be in the form so executed (and finalized)), in each case certified as such by Borrower.
(k)
The Administrative Agent shall have received evidence that substantially concurrently with the Effective Date all Indebtedness under the GCEAR Credit Agreement (including all unpaid principal, interest, fees, expenses and other amounts owing thereunder or in connection therewith) has been repaid in full and all commitments thereunder have been terminated and all Liens in connection therewith, if any, have been released.
The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date, and such notice shall be conclusive and binding
SECTION 4.02
Each Credit Event
. The obligation of each Lender (as applicable) to make a Loan on the occasion of any Borrowing, of each Swingline Lender to make a Swingline Loan on the occasion of any Borrowing, and of the Issuing Bank to issue, amend, renew or extend any Letter of Credit, is subject to the satisfaction of the following conditions:
(a)
The representations and warranties of each Credit Party set forth in this Agreement or in any other Loan Document shall be true and correct on and as of the date of such Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable.
(b)
At the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing.
(c)
With respect to (i) any requested Borrowings, the Borrower shall have complied with
Section 2.03
or
Section 2.04
, as applicable, and (ii) the request for the issuance, amendment, renewal or extension of any Letters of Credit, the Borrower shall have complied with
Section 2.05(b)
.
(d)
The Administrative Agent shall have received a Borrowing Base Certificate signed by a Financial Officer of Borrower.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in this Section.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the principal of and interest on each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit shall have expired or terminated and all LC Disbursements shall have been reimbursed, the Borrower covenants and agrees with the Lenders that:
SECTION 5.01
Financial Statements; Ratings Change and Other Information
. The Borrower will furnish to the Administrative Agent and each Lender:
(a)
within 120 days after the end of each fiscal year of the Parent, (i) the Parent’s audited consolidated balance sheet and related statements of operations, stockholders' equity and cash flows as of the end of and for such year, together with all notes thereto, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by Ernst & Young, LLP or other independent public accountants of recognized national standing (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Parent and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, and (ii) separate Real Property Portfolio Summary Schedules for the Pool Properties and all other Individual Properties (including property address, rent roll each property (including calculations of value and Net Operating Income), square footage, tenant, rent and lease expiration date), together with
supplemental financial and portfolio information in form and substance reasonably satisfactory to the Administrative Agent;
(b)
within 60 days after the end of each of the first three fiscal quarters of each fiscal year of the Parent, (i) the Parent’s consolidated balance sheet and related statements of operations, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Parent on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments, and (ii) separate Real Property Portfolio Summary Schedules for the Pool Properties and all other Individual Properties (including property address, rent roll each property (including calculations of value and Net Operating Income), square footage, tenant, rent and lease expiration date), together with
supplemental financial and portfolio information in form and substance reasonably satisfactory to the Administrative Agent;
(c)
concurrently with any delivery of financial statements under clause (a) or (b) above, a compliance certificate of a Financial Officer of the Parent (the “
Compliance Certificate
”) in the form of
Exhibit B
attached hereto and a borrowing base certificate of a Financial Officer of the Parent (the “
Borrowing Base Certificate
”) in the form of
Exhibit G
attached hereto;
(d)
promptly after the same become publicly available for Forms 10-K and 10-Q described below (unless available publicly), and upon written request for items other than Forms 10-K and 10-Q described below, copies of all periodic and other reports, proxy statements and other materials filed by the Parent, the Borrower or any Subsidiary with the Securities and Exchange Commission (including registration statements and reports on Form 10-K, 10-Q and 8-K (or their equivalents)), or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Parent or the Borrower to its shareholders generally, as the case may be;
(e)
promptly upon becoming aware thereof, notice of the breach, nonperformance, cancellation or failure to renew by any party under any Material Contract; and
(f)
promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Credit Party or any Subsidiary of the Borrower, the Pool Properties, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may reasonably request.
SECTION 5.02
Financial Tests
. The Parent and the Borrower shall have and maintain, on a consolidated basis in accordance with GAAP, tested as of the close of each calendar quarter:
(a)
The Consolidated Leverage Ratio shall not exceed sixty percent (60%) at all times, or for a maximum of four (4) consecutive calendar quarters following a Material Acquisition, sixty five percent (65%);
(b)
Tangible Net Worth shall not be less than (1) prior to the consummation of an IPO, the sum of (i) $2,030,720,237.00, plus (ii) (A) seventy-five percent (75%) of the net proceeds (gross proceeds less reasonable and customary costs of sale and issuance paid to Persons not Affiliates of any Credit Party) received by the Parent or the Borrower at any time from the issuance of stock (whether common, preferred or otherwise) of the Parent or the Borrower after the date of this Agreement, plus (B) seventy-five percent (75%) of the amount of operating partnership units of the Borrower issued after the Effective Date, minus (iii) seventy-five percent (75%) of the amount of any payments that are used to redeem stock (whether common, preferred or otherwise) of the Parent or the Borrower or to redeem operating partnership units of the Parent after the date of this Agreement minus (iv) any amounts paid for the redemption or retirement of, or any accrued return on, the preferred equity issued under the 2018 Preferred Documents or (2) at all times from an after the consummation of an IPO, the sum of (i) and amount equal to 75% of the Tangible Net Worth at the time of the IPO, plus (ii) (A) seventy-five percent (75%) of the net proceeds (gross proceeds less reasonable and customary costs of sale and issuance paid to Persons not Affiliates of any Credit Party) received by the Parent or the Borrower at any time from the issuance of stock (whether common, preferred or otherwise) of the Parent or the Borrower after the date of the IPO, plus (B) seventy-five percent (75%) of the amount of operating partnership units of the Borrower issued in connection with the contribution of any real estate or other assets of the Borrower after the date of the IPO;
(c)
a minimum Fixed Charge Coverage Ratio of not less than 1.50:1.00;
(d)
a maximum Secured Debt Ratio of not greater than forty percent (40%) of Total Asset Value or, for a maximum of four (4) consecutive calendar quarters following a Material Acquisition financed principally with Secured Debt, forty five percent (45%);
(e)
a maximum Secured Recourse Debt Ratio (excluding, for the purposes of this covenant, Secured Recourse Debt in connection with Hedging Obligations) of not greater than 10% of Total Asset Value;
(f)
Aggregate maximum Unhedged Variable Rate Debt of not greater than 30% of Total Asset Value;
(g)
At any time from and after the fiscal quarter ending September 30, 2019, a maximum Payout Ratio of ninety five percent (95%);
(h)
A minimum Unsecured Interest Coverage Ratio of no less than 2.0 to 1.0; and
(i)
A maximum Unsecured Leverage Ratio of no greater than sixty percent (60%).
SECTION 5.03
Notices of Material Events
. The Borrower will furnish to the Administrative Agent and each Lender written notice of the following promptly after it becomes aware of same (unless specific time is set forth below):
(a)
the occurrence of any Default;
(b)
within five (5) Business Days after the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or affecting any Credit Party or any Affiliate thereof that, if adversely determined, could reasonably be expected to result in a Material Adverse Effect;
(c)
within five (5) Business Days after the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, could reasonably be expected to result in liability of the Borrower and its Subsidiaries in an aggregate amount exceeding $10,000,000.00;
(d)
any change in Borrower’s Debt Rating, a certificate stating that Borrower’s Debt Rating has changed and the new Debt Rating that is in effect; and
(e)
any other development that results in, or could reasonably be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer or other executive officer of Borrower setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.
SECTION 5.04
Existence; Conduct of Business
. The Borrower will, and will cause each of its Subsidiaries to, do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and the rights, licenses, permits, privileges and franchises material to the conduct of its business; provided that the foregoing shall not prohibit any merger, consolidation, liquidation or dissolution permitted under
Section 6.01
.
SECTION 5.05
Payment of Obligations
. The Borrower will, and will cause each of its Subsidiaries to, pay its obligations, including Tax liabilities, that, if not paid, could result in a Material Adverse Effect before the same shall become delinquent or in default, except where (a)
the validity or amount thereof is being contested in good faith by appropriate proceedings, (b) the Borrower or such Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP and (c) the failure to make payment pending such contest could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.06
Maintenance of Properties; Insurance.
(a)
The Borrower will, and will cause each of its Subsidiaries or tenants, as applicable, to, (i) keep and maintain all property material to the conduct of its business in good working order and condition, ordinary wear and tear excepted, and (ii) maintain, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as required pursuant to
Section 3.13
.
(b)
The Borrower and each Credit Party will pay and discharge all taxes, assessments, maintenance charges, permit fees, impact fees, development fees, capital repair charges, utility reservations and standby fees and all other similar impositions of every kind and character charged, levied, assessed or imposed against any interest in any of the Pool Property owned by it, as they become payable and before they become delinquent. The Borrower shall furnish receipts evidencing proof of such payment to the Administrative Agent promptly after payment and before delinquency.
SECTION 5.07
Books and Records; Inspection Rights.
(a)
The Borrower will, and will cause each of its Subsidiaries to, keep proper books of record and account in which full, true and correct entries are made of all dealings and transactions in relation to its business and activities.
(b)
The Borrower will, and will cause each of its Subsidiaries to, permit any representatives designated by the Administrative Agent or any Lender, upon reasonable prior notice and subject to rights of tenants, to visit and inspect its properties, to examine and make extracts from its books and records, and to discuss its affairs, finances and condition with its officers and independent accountants, all at such reasonable times and as often as reasonably requested.
SECTION 5.08
Compliance with Laws
. The Borrower will, and will cause each of its Subsidiaries to, comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.09
Use of Proceeds
. The proceeds of the Loans will be used for acquisition, acquisition fees and expenses, development and enhancement of Real Property, debt refinancing, capital and tenant improvements and working capital. No part of the proceeds of any Loan will be used, whether directly or indirectly, for financing, funding or completing the hostile acquisition of publicly traded Persons or for any purpose that entails a violation of any of the Regulations of the Board, including Regulations U and X.
SECTION 5.10
Fiscal Year
. Borrower shall maintain as its fiscal year the twelve (12) month period ending on December 31 of each year.
SECTION 5.11
Environmental Matters.
(a)
Borrower shall comply and shall cause each of its Subsidiaries and each Real Property owned or leased by such parties to comply in all material respects with all applicable Environmental Laws currently or hereafter in effect, except to the extent noncompliance could not reasonably be expected to have a Material Adverse Effect.
(b)
If the Administrative Agent or the Majority Lenders at any time have a reasonable basis to believe that there may be a material violation of any Environmental Law related to any Real Property owned or leased by Borrower or any of its Subsidiaries, or Real Property adjacent to such Real Property, which could reasonably be expected to have a Material Adverse Effect, then Borrower agrees, upon request from the Administrative Agent (which request may be delivered at the option of Administrative Agent or at the direction of Majority Lenders), to provide the Administrative Agent, at the Borrower’s expense, with such reports, certificates, engineering studies or other written material or data as the Administrative Agent or the Majority Lenders may reasonably require so as to reasonably satisfy the Administrative Agent and the Majority Lenders that any Credit Party or Real Property owned or leased by them is in material compliance with all applicable Environmental Laws.
(c)
Borrower shall, and shall cause each of its Subsidiaries to, take such Remedial Action or other action as required by Environmental Law or any Governmental Authority.
(d)
If the Borrower or any Credit Party fails to timely take, or to diligently and expeditiously proceed to complete in a timely fashion, any action described in this Section, the Administrative Agent may, after notice to the Borrower, with the consent of the Majority Lenders, make advances or payments toward the performance or satisfaction of the same, but shall in no event be under any obligation to do so. All sums so advanced or paid by the Administrative Agent (including reasonable counsel and consultant and investigation and laboratory fees and expenses, and fines or other penalty payments) and all sums advanced or paid in connection with any judicial or administrative investigation or proceeding relating thereto, will become due and payable from the Borrower ten (10) Business Days after demand, and shall bear interest at the rate for past due interest provided in
Section 2.12(c)
from the date any such sums are so advanced or paid by the Administrative Agent until the date any such sums are repaid by the Borrower. Promptly upon request, the Borrower (or the subject Credit Party) will execute and deliver such instruments as the Administrative Agent may deem reasonably necessary to permit the Administrative Agent to take any such action, and as the Administrative Agent may require to secure all sums so advanced or paid by the Administrative Agent. If a Lien is filed against the Pool Property by any Governmental Authority resulting from the need to expend or the actual expending of monies arising from an action or omission, whether intentional or unintentional, of the Borrower or any Subsidiary Guarantor or for which the Borrower or any Subsidiary Guarantor is responsible, resulting in the Releasing of any Hazardous Material into the waters or onto land located
within or without the State where the Pool Property is located, then the Borrower will, within thirty (30) days from the date that the Borrower or any Subsidiary Guarantor is first given notice that such Lien has been placed against the Pool Property (or within such shorter period of time as may be specified by the Administrative Agent if such Governmental Authority has commenced steps to cause the Pool Property to be sold pursuant to such Lien), either (i) pay the claim and remove the Lien, or (ii) furnish a cash deposit, bond or such other security with respect thereto as is satisfactory in all respects to the Administrative Agent and is sufficient to effect a complete discharge of such Lien on the Pool Property.
SECTION 5.12
Pool Property Covenants
The Pool Properties shall at all times satisfy the following:
(a) There shall be no less than fifteen (15) Pool Properties at any time;
(b)
No greater than fifteen percent (15%) of aggregate Pool Value may be contributed by any single Pool Property;
(c)
No greater than fifteen percent (15%) of aggregate Pool Value may be contributed by any single tenant;
(d)
No greater than fifteen percent (15%) of aggregate Pool Value may be contributed by Pool Properties subject to ground leases;
(e)
No greater than twenty percent (20%) of aggregate Pool Value may be contributed by Pool Properties which are Assets Under Development or Assets Under Renovation;
(f)
Minimum aggregate leasing percentage (including (i) tenants in-place paying rent, (ii) tenants under an executed lease that are in a free rent period, (iii) tenants which will take occupancy within 12 months subject only to completion of tenant build-out work, (iv) replacement tenants which will take occupancy within 12 months of prior tenant vacating, pursuant to an executed lease, subject only to completion of tenant build-out work, or (v) for an Asset under Development, tenants that are scheduled to take occupancy within 30 months subject to an executed lease; provided, however, that with respect to an Asset Under Renovation, the leasing percentage of such asset shall not be taken into account in the calculation of the aggregate leasing percentage during the first six (6) months that such asset constitutes an Asset Under Renovation (such period as determined by Administrative Agent based on information provided by Borrower) and such asset may remain a Pool Property during such period so long as it satisfies all other criteria required to remain a Pool Property) of all Pool Properties shall be no less than ninety percent (90%); and
(g)
Other customary limitations as may be reasonably determined by Administrative Agent from time to time upon further due diligence of the Pool Properties.
The failure of the Borrower to comply with any of the limitations set forth in Sections 5.12(b), (c), (d) or (e) shall not result in an Event of Default hereunder, but rather the amount (in each instance) in excess of the subject limitation shall be excluded when calculating the Borrowing Base Availability. The failure of the Borrower to comply with Sections 5.12 (f), or (g) shall constitute an Event of Default unless the Borrower is able to remove or deliver additional Pool Properties as provided in Section 5.13 below, as applicable, within thirty (30) Business Days of such occurrence and such action results in the Borrower being in compliance with the subject covenant.
SECTION 5.13
Pool Properties
.
(a)
Removal of Individual Property as a Pool Property
. From time to time during the term of this Agreement following (i) Borrower’s written request (“
Release Request
”) and (ii) satisfaction of the Release Conditions, the Administrative Agent shall, in each case to the extent applicable, release the subject Subsidiary Guarantor(s) which has no other ownership interest in any of the remaining Pool Properties, from further payment and performance of the Loans; provided, however, any such release by the Administrative Agent shall not be deemed to terminate or release such Pool Property Owner from any obligation or liability under any Loan Document which specifically by its terms survives the said release or the payment in full of the Obligations. The “Release Conditions” are the following:
(i)
Borrowing Base Compliance. The Borrower has delivered a Borrowing Base Certificate reflecting that, after giving effect to the release of the Pool Property, the Total Outstandings will be less than or equal to the Maximum Loan Available Amount.
(ii)
No Default Upon Release. No Default shall exist under this Agreement or the other Loan Documents after giving effect to the release of the Pool Property, except for any Default which is cured or remedied by the removal of such Individual Property from being a Pool Property.
(iii)
No Default Prior to Release. No Event of Default shall exist under this Agreement or the other Loan Documents at the time of the Release Request or after giving effect to the release of the Pool Property, including, without limitation, under Section 5.12 hereof, except for any Event of Default which is cured or remedied by the removal of such Individual Property from being a Pool Property.
(iv)
Payment of Fees. The Borrower shall pay or reimburse the Administrative Agent for all reasonable legal fees and expenses and other reasonable costs and expenses incurred by Administrative Agent in connection with the release.
Any failure of any removal and release requested by the Borrower to meet all of the Release Conditions shall be deemed a rejection of the proposed Release Request and, subject to the other terms and conditions hereof as to whether any Individual
Property is a Pool Property, such Pool Property shall remain a Pool Property hereunder.
(b)
Additional Pool Property
. From time to time during the term of this Agreement following the Borrower’s written request (“
Additional Borrowing Base Request
”), the Administrative Agent shall accept one or more Individual Properties as Pool Properties upon the satisfaction of the following conditions, in a manner reasonably acceptable to the Administrative Agent:
(i)
The Borrower shall have obtained Preliminary Approval for the addition of such Individual Property and shall have delivered to Administrative Agent such due diligence information as Administrative Agent may request, including descriptive information on the Property.
(ii)
The Borrower (or applicable Credit Party or Pool Property Owner) shall have satisfied all of requirements set forth in the definition of Pool Property as to such Individual Property and shall have delivered a certification from Borrower and the respective Subsidiary Guarantor that the Pool Property meets the requirements of a Pool Property and the respective Subsidiary Guarantor has no other debt or liabilities, other than trade payables incurred in the ordinary course of business.
(iii)
The Borrower shall have delivered to the Administrative Agent a Borrowing Base Certificate reflecting that, after giving effect to such addition the Total Outstandings will be less than or equal to the Maximum Loan Available Amount.
(iv)
The Borrower shall have delivered to the Administrative Agent a certification that the Property is free of any material environmental, structural, architectural, mechanical or title defects and otherwise meets all the requirements of a Pool Property.
(v)
Subject to the terms of
Section 5.17
hereof, the owner of the Pool Property must have joined in, and assumed all obligations of a “Subsidiary Guarantor” under the Loan Documents, all in form and substance satisfactory to the Administrative Agent, including, without limitation, (a) entering into a Joinder Agreement in the form attached hereto as
Exhibit F
executed by such owner and delivered to the Administrative Agent, and (b) such owner delivering such organizational documents, directors’ or comparable resolutions, secretary’s, incumbency and like certificates, opinions of counsel and other documents as required by the Administrative Agent in connection with such joinder provided the same are consistent with the terms of this Agreement.
(vi)
The Borrower shall pay or reimburse the Administrative Agent for all reasonable legal fees and expenses and other costs and expenses incurred by Administrative Agent in connection with the additional Pool Property.
(vii)
The Administrative Agent shall give the Borrower prompt written notice of its determination with respect to the admission or rejection of any Individual Property as a Pool Property. To the extent that an Individual Property does not meet the requirements to qualify as a Pool Property, as defined, the Borrower may nevertheless request that such Individual Property be included as a Pool Property and the Majority Lenders may, in their sole and absolute discretion, agree to the acceptance of such Individual Property as an additional Pool Property.
SECTION 5.14
Further Assurances
. At any time upon the request of the Administrative Agent, Borrower will (or will cause each Credit Party to), promptly and at its expense, execute, acknowledge and deliver such further documents and perform such other acts and things as the Administrative Agent may reasonably request to evidence the Loans made hereunder and interest thereon in accordance with the terms of this Agreement.
SECTION 5.15
Parent Covenants
. The Parent will:
(a)
own, directly or indirectly, free and clear of any Liens, all of the general partner interests in the OP and, once acquired, will not sell or transfer any limited partner interests in the OP (provided other limited partners may sell or transfer their respective limited partner interests in the OP, subject to compliance with Section 9.14 below);
(b)
cause the OP to own, directly or indirectly, free and clear of any Liens, all of the ownership interests in each Subsidiary Guarantor;
(c)
maintain management and Control of the OP and each Subsidiary Guarantor;
(d)
conduct substantially all of its operations through the OP and one or more of the OP’s Subsidiaries;
(e)
comply with all Legal Requirements to maintain, and, after its initial election, will at all times elect, qualify as and maintain, its status as a real estate investment trust under Section 856(c)(i) of the Code;
(f)
prior to a listing of the Series A Preferred Stock (as defined in the 2018 Preferred Documents) except as contemplated in the 2018 Preferred Documents, not permit the Series A Preferred Stock to be transferred, and the OP and the Parent will not consent to any transfer of the Series A Preferred Stock, as the case may be, to any entity unless the Lenders have satisfactorily obtained all required “know your customer” and other information regarding such transferee as the Lenders may reasonably request (provided that, if the 2018 Preferred Holder is a trust, the transfer of underlying beneficial interests in such Trust shall not be deemed a transfer of the Series A Preferred Stock); and
(g)
not enter into, nor permit the Parent, the OP nor any Affiliate thereof to enter into any amendment of the 2018 Preferred Documents (including to increase the amount of the preferred equity issued thereunder) or of any constituent document of any Credit Party
or Pool Property Owner in a manner which would be materially adverse to the Lenders without the prior written approval of the Required Lenders.
SECTION 5.16
ECP
. The Borrower and each Guarantor (subject to the provisions of Section 26 of the Guaranty) will each be a Qualified ECP Party prior to entering into any Hedging Obligation. Notwithstanding the foregoing, no Subsidiary Guarantor shall be deemed a Guarantor of any Hedging Obligation to the extent the providing of such guaranty would violate applicable eligible contract participant rules or any other applicable law or regulation, provided the foregoing shall not affect any other obligations of such Subsidiary Guarantor as a guarantor hereunder, including, without limitation, the obligations under Section 26 of the Guaranty.
SECTION 5.17
Subsidiary Guaranty Termination.
So long as no Default or Event of Default shall have occurred and be continuing, upon Borrower’s written request following the occurrence of a Subsidiary Guaranty Termination Event, Administrative Agent shall release the Subsidiary Guarantors from the Guaranty and no Subsidiaries of the Borrower shall thereafter be required to deliver a Guaranty hereunder. Notwithstanding the foregoing, the Parent will not be released from the Guaranty as a result of the occurrence of the Subsidiary Guaranty Termination Event, and the Guaranty shall remain in full force and effect with respect to the Parent.
SECTION 5.18
Beneficial Ownership
. Promptly following any request therefor, Borrower shall provide information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act, the Beneficial Ownership Regulation or other applicable anti-money laundering laws.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the principal of and interest on each Loan and all fees payable hereunder have been paid in full and all Letters of Credit have expired or terminated and all LC Disbursements shall have been reimbursed, the Borrower covenants and agrees with the Lenders that:
SECTION 6.01
Liens
. The Borrower will not create, incur, assume or permit to exist any Lien on any Pool Property or any direct or indirect Equity Interest in any Subsidiary Guarantor owned by the Borrower or the Parent or hereafter acquired by such Persons, or assign or sell any income or revenues (including accounts receivable) or rights in respect of any thereof, except Permitted Encumbrances.
SECTION 6.02
Fundamental Changes
. The Parent and the Borrower will not, and will not permit any Subsidiary to:
(a)
merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of the assets of the Borrower
or all or substantially all of the stock of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve (including, in each case of any of the foregoing, pursuant to a Series LLC Division), except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing (i) any Person may merge into, or consolidate with, Borrower or the Parent in a transaction in which Borrower or the Parent is the surviving entity, provided that any proposed merger which will result in an increase in Total Asset Value by 25% or more will require approval in advance by the Majority Lenders, (ii) any Person not a Credit Party may merge into, or consolidate with, any Subsidiary in a transaction in which the surviving entity (or each surviving entity with respect to a Series LLC Division) is a Subsidiary, (iii) any Subsidiary not a Credit Party may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (iv) any Subsidiary not a Credit Party may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) any Subsidiary which is a Credit Party may merge into (or consolidate with) or liquidate or dissolve into, any other Subsidiary which is a Credit Party, and (vi) any Subsidiary which is a Credit Party may sell, transfer, lease or otherwise dispose of its assets to Borrower or to any other Subsidiary which is a Credit Party; provided that any such merger involving a Person that is not a wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by
Section 6.03
.
(b)
sell, transfer, lease or otherwise dispose of any of its assets to a Person other than pursuant to clause (a) above if the Value of the assets disposed of in any twelve (12) month period exceeds twenty-five percent (25%) of Total Asset Value of the Borrower, unless not less than ten (10) Business Days prior to any such disposition Borrower delivers to Administrative Agent a Compliance Certificate and Borrowing Base Certificate evidencing compliance with all terms and conditions set forth therein.
(c)
enter into any merger (other than the Merger) (i) which will result in an increase in Total Asset Value by twenty five percent (25%) or more, without the prior approval of the Majority Lenders in their sole discretion, or (ii) in which Borrower or Guarantor will not be the surviving entity or which would result in a Change in Control, and provided in each instance that the Lenders have received all “know your customer” and other information as the Lenders may reasonably request with respect to such merger.
(d)
engage to any material extent in any business other than the ownership, development, operation and management of office, industrial, warehouse, distribution or educational properties (or mixed uses thereof) and businesses reasonably related thereto, except as allowed by
Section 6.03
, without the prior written consent of the Lenders.
SECTION 6.03
Investments, Loans, Advances and Acquisitions
. The Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness (subject to Section 6.09 below) or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any
loans or advances to, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit, except:
(a)
Permitted Investments;
(b)
Real Property operated as office and industrial properties or such other uses as may be approved in writing by the Administrative Agent;
(c)
undeveloped land, so long as the aggregate Value of such land does not exceed five percent (5%) of Total Asset Value, after giving effect to such investments;
(d)
Pre-leased Assets Under Development, so long as the aggregate Value thereof does not exceed twenty percent (20%) of the Total Asset Value after giving effect to such investments;
(e)
Leased Assets Under Renovation, so long as the aggregate Value thereof does not exceed ten percent (10%) of the Total Asset Value after giving effect to such investments;
(f)
investments in Unconsolidated Affiliates so long as the aggregate amount of such investments described in this
clause (e)
does not exceed ten percent (10%) of the Total Asset Value after giving effect to such investments;
(g)
investments in mortgage notes receivable not exceeding fifteen percent (15%) of Total Asset Value after giving effect to such investments;
(h)
mergers, consolidations and other transactions permitted under
Section 6.02
, so long as same do not cause the Borrower to be in violation of any provision of this
Section 6.03
.
Provided (i) the aggregate total value of Investments described in subsections (c) through (g) will not exceed twenty-five percent (25%) of Total Asset Value on a consolidated basis, and (ii) any violation of the foregoing limitations shall not constitute an Event of Default but shall result in the exclusion of the excess value of any Investment in excess of any of the foregoing limitations from the calculation of Total Asset Value.
SECTION 6.04
Hedging Agreements
. The Borrower will not, and will not permit any of its Subsidiaries to, enter into any Hedging Agreement, other than Hedging Agreements entered into in the ordinary course of business to hedge or mitigate risks to which the Borrower or any Subsidiary is exposed in the conduct of its business or the management of its liabilities.
SECTION 6.05
Restricted Payments
. The Parent will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, during any calendar month, any Restricted Payment, except that any of the following Restricted Payments are permitted: (a) Restricted Payments by the Parent required to comply with
Section 5.15(e)
, (b) provided no Default or Event of Default is then in existence, Restricted Payments made by the Borrower and/or Parent to its respective equity holders, including in connection with the existing
redemption and dividend reinvestment plans, not to exceed (as applicable) the Payout Ratio set forth in
Section 5.02(g)
, and (c) Restricted Payments declared and paid by Subsidiaries to Borrower and/or Parent with respect to their capital stock or equity interest.
Notwithstanding the foregoing, provided no Event of Default is in existence, the amount of Restricted Payments may be increased as long as the Payout Ratio does not exceed ninety five percent (95%) for the applicable period.
SECTION 6.06
Transactions with Affiliates
. The Borrower will not, and will not permit any of its Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates, except (a) in the ordinary course of business at prices and on terms and conditions not less favorable to the Borrower or such Subsidiary than could be obtained on an arm's-length basis from unrelated third parties (with in independent MAI appraisal delivered by a qualified third party appraiser being conclusive to establish compliance with this requirement), (b) transactions between or among the Borrower and its wholly owned Subsidiaries not involving any other Affiliate
and (c) any Restricted Payment permitted by
Section 6.05
.
SECTION 6.07
Parent Negative Covenants
. The Parent will not (a) own any Property other than the ownership interests of Borrower and other assets with no more than $10,000,000.00 in value; (b) give or allow any Lien on the ownership interests of Borrower provided that nothing contained in the 2018 Preferred Documents shall be deemed to constitute a violation of this Section 6.07(b); (c) create, incur, suffer or permit to exist, or assume or guarantee, directly or indirectly, contingently or otherwise, or become or remain liable with respect to any Indebtedness if the aggregate of such Indebtedness would violate Section 5.02 or (d) engage to any material extent in any business other than the ownership, development, operation and management of office, industrial, warehouse, distribution or educational (or mixed uses thereof) properties leased to third parties under triple net or absolute leases.
SECTION 6.08
Restrictive Agreements
. The Borrower will not, and will not permit any of its Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (a) the ability of the Borrower or any Subsidiary Guarantor to create, incur or permit to exist any Lien upon any Pool Property or the Equity Interests in the Borrower or such Subsidiary Guarantor, or (b) the ability of any Subsidiary Guarantor to pay dividends or other distributions with respect to any shares of its capital stock or to make or repay loans or advances to the Borrower or any other Subsidiary Guarantor or to Guarantee Indebtedness of the Borrower or any other Subsidiary Guarantor; provided that (i) the foregoing shall not apply to restrictions and conditions imposed by law or by this Agreement or as otherwise approved by the Administrative Agent, (ii) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Subsidiary Guarantor pending such sale, provided such restrictions and conditions apply only to the Subsidiary Guarantor that is to be sold and such sale is permitted hereunder, (iii) clause (a) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness or Liens permitted by this Agreement if such restrictions or conditions apply only to the property or
assets securing such Indebtedness and (iv) clause (a) of the foregoing shall not apply to customary provisions in leases restricting the assignment thereof.
SECTION 6.09
Indebtedness
. Neither any Guarantor, Pool Property Owner nor the Borrower shall, without the prior written consent of the Majority Lenders, create, incur, assume, guarantee or be or remain liable, contingently or otherwise with respect to any Indebtedness on a recourse basis, except: (a) Indebtedness under this Agreement; (b) Indebtedness of the Borrower or the Parent incurred in connection with the construction, renovation or expansion of Real Property, which Indebtedness is approved by the Administrative Agent, such approval not to be unreasonably withheld; (c) Indebtedness under any Hedging Obligations, (d) Indebtedness of the Parent whose recourse is solely for so-called “bad-boy” acts, including without limitation, (i) failure to account for a tenant’s security deposits, if any, for rent or any other payment collected by a borrower from a tenant under the lease, all in accordance with the provisions of any applicable loan documents, (ii) fraud or a material misrepresentation made by the Borrower or any Guarantor, or the holders of beneficial or ownership interests in the Borrower or any Guarantor, in connection with the financing evidenced by the applicable loan documents; (iii) any attempt by Borrower or any Guarantor to divert or otherwise cause to be diverted any amounts payable to the applicable lender in accordance with the applicable loan documents; (iv) the misappropriation or misapplication of any insurance proceeds or condemnation awards relating to the Real Property; (v) voluntary or involuntary bankruptcy by Borrower or any Guarantor; (vi) any environmental matter(s) affecting any Real Property which is introduced or caused by Borrower or any Guarantor or any holder of a beneficial or ownership interest in Borrower or any Guarantor; and (vii) waste; (e) Indebtedness for trade payables and operating expenses incurred in the ordinary course of business; and (f) Unsecured Debt (which is not secured by a lien on any Equity Interests in the Borrower or any Subsidiary Guarantor or any Pool Property Owner) of the Borrower and the Parent provided the Borrower remains in compliance with covenants set forth in Section 5.02 after giving effect to such Unsecured Debt. Nothing contained herein shall be deemed to prohibit or prevent a Subsidiary of the Parent or of Griffin Capital Essential Asset Operating Partnership, L.P. which is not a Subsidiary Guarantor or a Pool Property Owner from assuming or incurring any Indebtedness in connection with any investment allowed under Section 6.03 above.
SECTION 6.10
Management Fees
. At any time that any Default or Event of Default exists under this Agreement or any other Loan Document, then in any of such event(s), no Credit Party may pay any management, property, asset or similar fees to any other Credit Party or to any Subsidiary or Affiliate, including, without limitation, to Griffin Capital Essential Asset Property Management II, LLC and/or Griffin Capital Essential Asset Advisor II, LLC provided that the Parent may pay all fees due to Griffin Capital Securities, LLC in connection with capital raising efforts on behalf of the Parent. All such parties shall execute subordination agreements in form and substance acceptable to the Administrative Agent with respect to such fees.
ARTICLE VII
Events of Default
If any of the following events (“
Events of Default
”) shall occur:
(a)
the Borrower shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any LC Disbursement when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b)
any Credit Party shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to in
clause (a)
of this Article) payable under any Loan Documents, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of over three Business Days (such three Business Day period commencing after written notice from the Administrative Agent as to any such fee);
(c)
any representation or warranty made or deemed made by or on behalf of any Credit Party in or in connection with any Loan Document or any amendment or modification thereof or waiver thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with this Agreement or any amendment or modification hereof or waiver hereunder, shall prove to have been incorrect in any material respect when made or deemed made;
(d)
the Borrower or any Credit Party shall fail to observe or perform any covenant, condition or agreement contained in
Article V
or
VI
other than
Sections 5.04
, 5
.05
,
5.06
,
5.07(a)
,
5.08
, and
5.11
;
(e)
any Credit Party shall fail to observe or perform any covenant, condition or agreement contained in any Loan Document (other than those specified in
clause (a), (b)
or
(d)
of this Article), and such failure shall continue unremedied for a period of over 30 days after notice thereof from the Administrative Agent to the Borrower (which notice will be given at the request of any Lender) and if such default is not cureable within thirty (30) days and the Credit Party is diligently pursuing cure of same, the cure period may be extended for 30 days (for a total of 60 days after the original notice from the Administrative Agent) upon written request from the Borrower to the Administrative Agent;
(f)
an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (in each instance, other than by the Lender(s) (i) liquidation, reorganization or other relief in respect of any Credit Party or any Subsidiary of the Borrower or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Credit Party or any Subsidiary of the Borrower or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(g)
any Credit Party or any Subsidiary of the Borrower shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (f) of this Article,
(iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for such Person or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(h)
any Credit Party or any Subsidiary of the Borrower shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;
(i)
one or more judgments for the payment of money in an aggregate amount in excess of $10,000,000 shall be rendered against any Credit Party, any Subsidiary of the Borrower or any combination thereof and the same shall remain undischarged for a period of 30 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of such Person to enforce any such judgment;
(j)
an ERISA Event shall have occurred that, in the opinion of the Majority Lenders, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in liability of the Borrower and its Subsidiaries in an aggregate amount exceeding $10,000,000;
(k)
the Guaranty of the Loan by any Guarantor shall for any reason terminate or cease to be in full force and effect, other than as provided for in Section 5.13 of this Agreement;
(l)
any Credit Party shall default under any Material Contract and such default shall continue unremedied for a period of over 30 days after notice thereof from the Administrative Agent to the Borrower (which notice will be given at the request of any Lender) and if such default is not cureable within thirty (30) days and the Credit Party is diligently pursuing cure of same, the cure period may be extended for 30 days (for a total of 60 days after the original notice from the Administrative Agent) upon written request from the Borrower to the Administrative Agent, provided further such cure period shall terminate in the event any such Material Contract shall be terminated as a result of such default;
(m)
any Credit Party shall (or shall attempt to) disavow, revoke or terminate any Loan Document to which it is a party or shall otherwise challenge or contest in any action, suit or proceeding in any court or before any Governmental Authority the validity or enforceability of any Loan Document;
(n)
a Change in Control shall occur; or
(o)
the Borrower, Guarantor or any Subsidiary thereof defaults under (i) as to Borrower, any Guarantor or any Pool Property Owner, any recourse Indebtedness in an aggregate amount equal to or greater than $50,000,000 at any time, or (ii) any non-recourse Indebtedness in an aggregate amount equal to or greater than $100,000,000 at any time.
then, and in every such event (other than an event described in
clause (g)
or
(h)
of this Article), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Majority Lenders shall, by notice to the Borrower, take some or all of the following actions, at the same or different times: (i) terminate the Commitments, and thereupon the Commitments shall terminate immediately, (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower, and (iii) exercise any other rights or remedies provided under this Agreement or any other Loan Document, or any other right or remedy available by law or equity; and in case of any event described in
clause (g)
or
(h)
of this Article, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower.
In the event that, following the occurrence and during the continuance of any Event of Default, any monies are received in connection with the enforcement of any of the Loan Documents, or otherwise with respect to the realization upon any of the collateral or other assets of Credit Parties, such monies shall be distributed for application as follows:
(i)
First, to the payment of, or (as the case may be) the reimbursement of the Administrative Agent for or in respect of, all reasonable out-of-pocket costs, expenses, disbursements and losses which shall have been paid, incurred or sustained by the Administrative Agent in accordance with the terms of the Loan Documents to protect or preserve the collateral or in connection with the collection of such monies by the Administrative Agent, for the exercise, protection or enforcement by the Administrative Agent of all or any of the rights, remedies, powers and privileges of the Administrative Agent or the Lenders under this Agreement or any of the other Loan Documents or in respect of the collateral or in support of any provision of adequate indemnity to the Administrative Agent against any taxes or liens which by law shall have, or may have, priority over the rights of the Administrative Agent or the Lenders to such monies;
(ii)
Second, to all other Obligations (including any obligations with respect to any Letter of Credit, interest, expenses or other obligations incurred after the commencement of a bankruptcy) and Hedging Obligations in the following order:
(1)
To any other fees and expenses due to the Lenders or the Issuing Bank under the Loan Documents until paid in full;
(2)
to the payment of accrued and unpaid interest on all Swingline Loans until paid in full;
(3)
payment of accrued and unpaid interest on all Loans and any obligations with respect to any Letter of Credit, for the ratable benefit of the Lenders and the Issuing Bank, until paid in full;
(4)
to the payment of all unpaid principal on all Swingline Loans until paid in full;
(5)
pro rata, to (A) payments of unpaid principal of all Loans and Letter of Credit obligations, to be paid to the Lenders and the Issuing Bank equally and ratably in accordance with the respective amounts thereof then due and owing to such Persons until paid in full and (B) payment of Hedging Obligations; provided, however, to the extent that any amounts available for distribution pursuant to this subsection are attributable to the issued but undrawn amount of an outstanding Letter of Credit, such amounts shall be paid to the Administrative Agent to be held as cash collateral; and
(6)
to payment of all other amounts due under any of the Loan Documents to be applied for the ratable benefit of the Administrative Agent, the Issuing Bank and/or the Lenders until paid in full; and
(iii)
Third, the excess, if any, shall be returned to the Borrower or to such other Persons as are entitled thereto.
ARTICLE VIII
The Administrative Agent
Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. In the event of conflicting instructions or notices given to the Borrower by the Administrative Agent and any Lender, the Borrower is hereby directed and shall rely conclusively on the instruction or notice given by the Administrative Agent.
The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly
contemplated hereby that the Administrative Agent is required to exercise in writing by the Majority Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in
Section 9.02
), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Credit Party that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Majority Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in
Section 9.02
) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default (other than a payment Default) unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in
Article IV
or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent agrees that, in fulfilling its duties hereunder, it will use the same standard of care it utilizes in servicing loans for its own account.
The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in good faith in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower, and may be removed by the Majority Lenders in the event of the Administrative Agent’s gross negligence or willful misconduct. Upon any such resignation or
removal, the Majority Lenders shall have the right, with the approval of Borrower (provided no Default has occurred and is continuing), which approval shall not be unreasonably withheld, to appoint a successor. If no successor shall have been so appointed by the Majority Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation or is removed, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent which shall be a Lender, or a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent for its own behalf shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent's resignation hereunder, the provisions of this Article and
Section 9.03
shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. The Administrative Agent shall cooperate with any successor Administrative Agent in fulfilling its duties hereunder.
Each Lender acknowledges that 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 Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Administrative Agent agrees to provide the Lenders with copies of all material documents and certificates received by the Administrative Agent from Borrower in connection with the Loans.
ARTICLE IX
Miscellaneous
SECTION 9.01
Notices
. Except in the case of notices and other communications expressly permitted to be given by telephone, all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows:
(a)
if to the Borrower, to the Borrower in care of Griffin Capital Essential Asset REIT II, Inc. at Griffin Capital Plaza, 1520 E. Grand Avenue, El Segundo, California 90245, Attention: Javier F. Bitar (Telephone No. (310) 469-6100 and Telecopy No. (310) 606-5910)); copy to: Mary Higgins, Griffin Capital Company, LLC, 790 Estate Drive, Suite 180, Deerfield, Illinois 60015 (Telephone No. (847) 267-1180 and Telecopy No. (847) 267-1237).
(b)
if to the Administrative Agent, to KeyBank National Association, 225 Franklin Street, Boston, Massachusetts, Attention: Christopher T. Neil, (Telephone No. (617) 385-6202); and
(c)
if to the Issuing Bank, to it at KeyBank National Association, 225 Franklin Street, Boston, Massachusetts, Attention: Christopher T. Neil, (Telephone No. (617) 385-6202); and
(d)
if to a Swingline Lender, to it at (i) KeyBank National Association, 225 Franklin Street, Boston, Massachusetts, Attention: Christopher T. Neil, (Telephone No. (617) 385-6202), (ii) Bank of America, N.A., IL4-135-06-11, 135 S. LaSalle Street, Chicago, IL 60603 (T) 312.828.5721 (F) 312.992.9767, thomas.kokenge@baml.com, and (iii) Wells Fargo Bank, N.A., Attn: Mary Kjornes – Phone 612-667-7440 – email Mary.B.Kjornes@wellsfargo.com and to: Ricky Nahal – Ricky.Nahal@wellsfargo.co; and
(e)
if to any other Lender, to it at its address (or telecopy number) set forth on the signature pages of this Agreement, or as provided to Borrower in writing by the Administrative Agent or the Lender.
Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto. All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given (i) if given by telecopy, when such telecopy is transmitted to the telecopy number specified in this Section and the appropriate confirmation is received (or if such day is not a Business Day, on the next Business Day); (ii) if given by mail (return receipt requested), on the earlier of receipt or three (3) Business Days after such communication is deposited in the mail with first class postage prepaid, addressed as aforesaid; or (iii) if given by any other means, when delivered at the address specified in this Section;
provided
that notices to the Administrative Agent under
Article II
shall not be effective until received.
Documents and notices required to be delivered to the Lenders pursuant to this Agreement may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are posted on Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and Administrative Agent have access (whether a commercial, third-party website or whether sponsored by Administrative Agent). Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. Notwithstanding the foregoing, no document shall be deemed to have been electronically delivered to the Administrative Agent or to any Lender unless such Internet or intranet website is set up to automatically deliver notice of postings thereon to the email address(es) that the Administrative Agent or such Lender may specify.
Borrower hereby acknowledges that (a) Administrative Agent will make available to the Lenders and Issuing Bank materials and/or information provided by or on behalf of Borrower and the other Credit Parties hereunder (collectively, “
Borrower Materials
”) by posting Borrower Materials on
IntraLinks or another similar electronic system (the “
Platform
”) and (b) certain of the Lenders (each, a “
Public Lender
”) may have personnel who do not wish to receive material non-public information with respect to Parent, Borrower or their Affiliates, or the respective Equity Interests of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ Equity Interests. Parent and Borrower hereby agree that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” Parent and Borrower shall be deemed to have authorized Administrative Agent, Lead Arrangers, Issuing Bank and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to Parent and Borrower or their Equity Interests for purposes of United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in
Section 9.12
); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (z) Administrative Agent and the Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information. Furthermore, each Public Lender agrees to cause at least one (1) individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and Legal Requirements, including United States Federal and state securities Laws, to make reference to Borrower Materials that are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to Borrower or its Equity Interests for purposes of United States Federal or state securities laws.
THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall Administrative Agent or any of its Related Parties (collectively, the “
Agent Parties
”)
have any liability to Borrower, any Lender, Issuing Bank or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of Borrower’s or Administrative Agent’s transmission of Borrower Materials through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party;
provided that
in no event shall any Agent Party have any liability to Borrower, any Lender, Issuing Bank or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages) resulting therefrom. Similarly, each Lender acknowledges that the Credit Parties do not control the
posting to, or operation of, the Platform. Accordingly, the obligation of any Credit Parties under this Article are solely to identify and properly mark materials as “PUBLIC” where applicable.
SECTION 9.02
Waivers; Amendments
.
(a)
No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and under any other Loan Document are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by the Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge of such Default at the time.
(b)
Neither this Agreement nor any provision hereof may be waived, amended or modified, nor may any Event of Default be waived except pursuant to an agreement or agreements in writing entered into by the Borrower and the Majority Lenders or by the Borrower and the Administrative Agent with the consent of the Majority Lenders;
provided
that no such agreement shall (i) increase or reduce (except in accordance with Section 2.08(b)) the Commitment of any Lender without the written consent of such Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or reduce the rate of interest thereon, or reduce any fees payable hereunder, without the written consent of each Lender affected thereby, (iii) postpone the scheduled date of payment of the principal amount of any Loan or LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender affected thereby, (iv) change
Section 2.17(b)
or
(c)
in a manner that would alter the pro rata sharing of payments required thereby, without the written consent of each Lender, (v) change any of the provisions of this Section or the definition of “Majority Lenders”, “Majority Class Lenders”, or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender, (vi) release any Credit Party from its obligations under the Loan Documents or, release of any Pool Property, except as specifically provided for herein, without the written consent of each Lender, (vii) subordinate the Loans without the written consent of each Lender, (viii) waive or modify any conditions of extending the Loans set forth in Section 2.20 without the written consent of each Lender affected thereby, (ix) modify the definition of “Revolving Loan Maturity Date” (except in accordance with Section 2.19), or extend the expiry date of any Letter of
Credit beyond the Revolving Loan Maturity Date without the written consent of each Revolving Lender, (x) amend, modify or waive this Agreement (including, without limitation, Article VII) or any other Loan Document so as to alter the ratable treatment of Obligations arising under the Loan Documents and Obligations arising under Hedging Agreements or the definition of “Hedging Agreement”, “Hedging Obligations” or “Obligations” (as defined in this Agreement, the Guaranty or any other applicable Loan Document), in each case in a manner adverse to any party to whom Obligations arising under a Hedging Agreement are owed without the written consent of any such party. or (xi) waive any Event of Default under Section (n) of Article VII;
provided further
that (A) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, the Issuing Bank or any Swingline Lender hereunder without the prior written consent of the Administrative Agent, the Issuing Bank or such Swingline Lender, as the case may be, and (B) any term of this Agreement or of any other Loan Document relating to the rights or obligations of any particular Class of Lenders, and not any Lenders of another Class, may be amended, and the performance or observance by Borrower or any other Credit Party of any such terms may be waived (either generally or in a particular instance and either retroactively or prospectively) with, and only with, the written consent of the Majority Class Lenders of the applicable Class or all Lenders of such Class directly and adversely affected thereby, as applicable (and, in the case of an amendment to any Loan Document, the written consent of each Credit Party a party thereto).
(c)
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender; and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the consent of such Defaulting Lender.
(d)
Notwithstanding any provision of this Agreement to the contrary none of the Lenders or the Borrower will be required to execute assumption or amendment documents to add a Person as a Subsidiary Guarantor. If Real Property assets are added to the Pool Properties in accordance with this Agreement and the Pool Property Owner (and/or any other Subsidiary required to become a Subsidiary Guarantor pursuant to the definition thereof) is not already a Subsidiary Guarantor, then such Pool Property Owner and/or other Subsidiary shall be added as a Subsidiary Guarantor as required by
Section 5.13
pursuant to a Joinder Agreement in the form attached hereto as
Exhibit F
executed by such owner and delivered to the Administrative Agent.
SECTION 9.03
Expenses; Indemnity; Damage Waiver
(a)
The Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent and its Affiliates, including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent, in connection with the syndication of the credit facilities provided for herein, the preparation and administration of this Agreement or any amendments, modifications or waivers of the provisions hereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses incurred by the Issuing Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses incurred by the Administrative Agent, the Issuing Bank or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Administrative Agent, the Issuing Bank or any Lender, in connection with the enforcement or protection of its rights in connection with this Agreement, including its rights under this Section, or in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any waivers, workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b)
The Borrower shall indemnify the Administrative Agent, the Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “
Indemnitee
”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the fees, charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement or any agreement or instrument contemplated hereby, the performance by the parties hereto of their respective obligations hereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by the Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by the Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto;
provided
that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses resulted from the gross negligence or willful misconduct of such Indemnitee as determined by a court of law in a final non-appealable judgment, or the failure of the Indemnitee to make advances pursuant to its Commitment in breach of its obligations hereunder.
(c)
To the extent that the Borrower fails to pay any amount required to be paid by it to the Administrative Agent, the Issuing Bank or any Swingline Lender under
paragraph (a)
or
(b)
of this Section, each Lender severally agrees to pay to the Administrative Agent, the Issuing Bank or such Swingline Lender, as the case may be, such Lender's Revolving Loan Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided
that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as
the case may be, was incurred by or asserted against the Administrative Agent, the Issuing Bank or any Swingline Lender in its capacity as such.
(d)
To the extent permitted by applicable law, the Borrower and each other Credit Party shall not assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.
(e)
All amounts due under this Section shall be payable not later than ten days after written demand therefor.
SECTION 9.04
Successors and Assigns.
(a)
The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit) except that the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b)
(i) Subject to the conditions set forth in
paragraph (b)(ii)
below, any Lender may assign to one or more assignees (other than to a natural Person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural Person), any Defaulting Lender or any Affiliate thereof, any Credit Party or any Affiliate or Subsidiary of any Credit Party) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment of any Class and the Loans of any Class at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld) of:
(A) the Borrower,
provided
that (i) no consent of the Borrower shall be required for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if a Default has occurred and is continuing, any other assignee, and (ii) such consent shall be deemed granted unless Borrower objects within five (5) Business Days of a receipt of written notice of the proposed assignment;
(B) the Administrative Agent,
provided
that no consent of the Administrative Agent shall be required for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund; and
(C) with respect to any assignment in respect of a Revolving Commitment to a Person that is not already a Revolving Lender, the Issuing Bank.
Provided, no consent of the Borrower, Administrative Agent or the Issuing Bank shall be required in connection with any assignment to an entity acquiring, or merging with, a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender or an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of a Class of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000.00 unless each of the Borrower and the Administrative Agent otherwise consent,
provided
that no such consent of the Borrower shall be required if a Default has occurred and is continuing and such consent shall not be unreasonably withheld;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender's rights and obligations under this Agreement with respect to the Loans or the Commitment of the Class assigned;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption (which may effect simultaneous assignments of Loans and Commitments of more than one Class), together with a processing and recordation fee of $3,500.00; and
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
For the purposes of this
Section 9.04(b)
, the term “
Approved Fund
” has the following meaning:
“
Approved Fund
” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv)
of this Section, from and after the effective date specified in each Assignment and Assumption the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto
but shall continue to be entitled to the benefits of
Sections 2.14
,
2.15
,
2.16
and
9.03
). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this
Section 9.04
shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with
paragraph (c)
of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amount of the Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof from time to time (the “
Register
”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent, the Issuing Bank and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower, the Issuing Bank and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the assignee's completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section and any written consent to such assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(c)
Any Lender may, without the consent of the Borrower, the Administrative Agent, the Issuing Bank or any Swingline Lender, sell participations to one or more banks or other entities (other than a Defaulting Lender or its Affiliates or any Credit Party or any Affiliate or Subsidiary of any Credit Party) (a “
Participant
”) in all or a portion of such Lender's rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans owing to it);
provided
that (i) such Lender's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Issuing Bank and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement;
provided
that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in the first proviso to
Section 9.02(b)
that affects such Participant. Subject to
paragraph (d)
of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.14
,
2.15
and
2.16
to the same extent as if it were a Lender and
had acquired its interest by assignment pursuant to
paragraph (b)
of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of
Section 9.08
as though it were a Lender, provided such Participant agrees to be subject to
Section 2.17(c)
as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that, except in the case of a Participant asserting any right of set-off pursuant to Section 9.08., no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d)
A Participant shall not be entitled to receive any greater payment under
Section 2.14
or
2.16
than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower's prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of
Section 2.16
unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with
Section 2.16(e)
as though it were a Lender.
(e)
Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any such pledge or assignment of a security interest;
provided
that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(f)
The parties hereby agree that Merrill Lynch, Pierce, Fenner & Smith Incorporated or its Affiliates may, without notice to the Borrower or any Guarantor, assign its rights and obligations under this Agreement to any other registered broker-dealer wholly-owned by Bank of America Corporation to which all or substantially all of Bank of America Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or related businesses may be transferred following the date of this Agreement.
SECTION 9.05
Survival
. All covenants, agreements, representations and warranties made by the Borrower and each other Credit Party herein and in the certificates or other instruments
delivered in connection with or pursuant to this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement and the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent, the Issuing Bank or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have not expired or terminated. The provisions of
Sections 2.14
,
2.15
,
2.16, 2.17(f)
and
9.03
and Article VIII shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit and the Commitments or the termination of this Agreement or any provision hereof.
SECTION 9.06
Counterparts; Integration; Effectiveness; Joint and Several.
(a)
This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.
(b)
This Agreement and any separate letter agreements with respect to fees payable to the Administrative Agent constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.
(c)
Except as provided in
Section 4.01
, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Delivery of an executed counterpart of a signature page of this Agreement by telecopy shall be effective as delivery of a manually executed counterpart of this Agreement.
(d)
Each Person constituting the general partner of Borrower shall be bound jointly and severally with one another to make, keep, observe and perform the representations, warranties, covenants, agreements, obligations and liabilities imposed by this Agreement and the other Loan Documents upon the “Borrower.”
(e)
The Borrower agrees that it shall never be entitled to be subrogated to any of the Administrative Agent’s or any Lender’s rights against any Credit Party or other Person or any collateral or offset rights held by the Administrative Agent or the Lenders for payment of the Loans until the full and final payment of the Loans and all other obligations incurred under the Loan Documents and final termination of the Lenders’ obligations, if any, to make further advances under this Agreement or to provide any other financial accommodations to any Credit Party.
SECTION 9.07
Severability
. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 9.08
Right of Setoff
. If an Event of Default shall have occurred and be continuing, each Lender and each of its Affiliates is hereby authorized, upon the prior consent of the Administrative Agent or the Majority Lenders, at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits of Borrower (general or special, time or demand, provisional or final, but excluding any funds held by the Borrower on behalf of tenants or other third parties) at any time held and other obligations at any time owing by such Lender or Affiliate to or for the credit or the account of Borrower against any of and all the obligations of the Borrower now or hereafter existing under this Agreement held by such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement and although such obligations may be unmatured. Each Lender agrees promptly to notify the Borrower after any such setoff and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of each Lender under this Section are in addition to other rights and remedies (including other rights of setoff) which such Lender may have.
SECTION 9.09
Governing Law; Jurisdiction; Consent to Service of Process.
(a)
This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York. Notwithstanding the foregoing choice of law, provisions of Federal law and the law of such other jurisdiction(s) shall apply in defining the terms Hazardous Materials, Environmental Laws and Legal Requirements applicable to the Property as such terms are used in this Loan Agreement and the other Loan Documents.
(b)
The Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the state and federal courts in Boston, Massachusetts and in New York, New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or any other Loan Document, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that the Administrative Agent, the Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document against the Borrower or its properties in the courts of any jurisdiction.
(c)
The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this
Agreement or any other Loan Document in any court referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(d)
Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in
Section 9.01
. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
SECTION 9.10
WAIVER OF JURY TRIAL
. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11
Headings
. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
SECTION 9.12
Confidentiality
. Each of the Administrative Agent, the Issuing Bank and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its and its Affiliates' directors, officers, employees and agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority, (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or the enforcement of rights hereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement, (g) with the consent of the Borrower, (h) to any Person in connection with any Hedging Agreement, or (i) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes available to the Administrative Agent, the Issuing Bank or any Lender on a nonconfidential basis from a source other than the Borrower. For the purposes of this Section, “Information” means all information received from any Credit Party relating to the Credit Party or its business, other than any such information that is available to the Administrative Agent, the Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by any Credit Party; provided that, in the case of
information received from any Credit Party after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
SECTION 9.13
Interest Rate Limitation
. If at any time there exists a maximum rate of interest which may be contracted for, charged, taken, received or reserved by the Lenders in accordance with applicable law (the “Maximum Rate”), then notwithstanding anything herein to the contrary, at any time the interest applicable to any Loan, together with all fees, charges and other amounts which are treated as interest on such Loan under applicable law (collectively, the “
Charges
”), shall exceed such Maximum Rate, the rate of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been paid in respect of such Loan but were not payable as result of the operation of this Section shall be cumulated and the interest and Charges payable to the Lenders in respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by the Lenders. If, for any reason whatsoever, the Charges paid or received on the Loans produces a rate which exceeds the Maximum Rate, the Lenders shall credit against the principal of the Loans (or, if such indebtedness shall have been paid in full, shall refund to the payor of such Charges) such portion of said Charges as shall be necessary to cause the interest paid on the Loans to produce a rate equal to the Maximum Rate. All sums paid or agreed to be paid to the holders of the Loans for the use, forbearance or detention of the Loans shall, to the extent permitted by applicable law, be amortized, prorated, allocated and spread in equal parts throughout the full term of this Agreement, so that the interest rate is uniform throughout the full term of this Agreement. The provisions of this Section shall control all agreements, whether now or hereafter existing and whether written or oral, between the parties hereto. Without notice to the Borrower or any other person or entity, the Maximum Rate, if any, shall automatically fluctuate upward and downward as and in the amount by which such maximum nonusurious rate of interest permitted by applicable law fluctuates.
SECTION 9.14
USA PATRIOT Act
. Each Lender that is subject to the Patriot Act (as hereinafter defined) and Administrative Agent (for itself and not on behalf of any Lender) hereby notifies Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “
Patriot Act
”), it is required to obtain, verify and record information that identifies Borrower, which information includes the name and address of Borrower and other information that will allow such Lender or Administrative Agent, as applicable, to identify the Borrower in accordance with the Patriot Act. Borrower shall, promptly following a request by Administrative Agent or any Lender, provide all documentation and other information that Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.
SECTION 9.15
Fiduciary Duty/No Conflicts
.
The Administrative Agent, each Lender and their Affiliates (collectively, solely for purposes of this paragraph, the “Lenders”), may have economic interests that conflict with those of the Credit Parties, their stockholders and/or their affiliates. Each Credit Party agrees that nothing in the Loan Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Lender, on the one hand, and such Credit Party, its stockholders or its affiliates, on the other. The Credit Parties acknowledge and agree that (i) the transactions contemplated by the Loan Documents (including the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Lenders, on the one hand, and the Credit Parties, on the other, and (ii) in connection therewith and with the process leading thereto, (x) no Lender has assumed an advisory or fiduciary responsibility in favor of any Credit Party, its stockholders or its affiliates with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether any Lender has advised, is currently advising or will advise any Credit Party, its stockholders or its Affiliates on other matters) or any other obligation to any Credit Party except the obligations expressly set forth in the Credit Documents and (y) each Lender is acting hereunder solely as principal and not as the agent or fiduciary of any Credit Party, its management, stockholders, creditors or any other Person. Each Credit Party acknowledges and agrees that it has consulted its own legal and financial advisors to the extent it deemed appropriate and that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto. Each Credit Party agrees that it will not claim that any Lender has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to such Credit Party, in connection with such transaction or the process leading thereto in its capacity as a Lender.
SECTION 9.16
Acknowledgement and Consent to Bail-In of EEA Financial Institutions
. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a)
the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and
(b)
the effects of any Bail-in Action on any such liability, including, if applicable:
(i)
a reduction in full or in part or cancellation of any such liability;
(ii)
a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii)
the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any EEA Resolution Authority.
SECTION 9.17
ERISA Representations
.
(a)
Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true:
(i)
such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments or this Agreement,
(ii)
the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,
(iii)
(A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or
(iv)
such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.
(b)
In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (2) a Lender has provided another representation,
warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower, that the Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related hereto or thereto).
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
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GRIFFIN CAPITAL ESSENTIAL ASSET OPERATING PARTNERSHIP, L.P. (successor by merger to Griffin Capital Essential Asset Operating Partnership II, L.P.), a Delaware limited partnership
|
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By: GRIFFIN CAPITAL ESSENTIAL ASSET REIT II, INC., a Maryland corporation, its General Partner
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By:
/s/ Javier F. Bitar
Name: Javier F. Bitar
Title: Chief Financial Officer and Treasurer
|
[Signature Page to Second Amended and Restated Credit Agreement]
The Parent joins in the execution of this Agreement to evidence its agreement to the provisions of
Sections 5.01
,
5.15
,
6.02
,
6.05
and
6.07
of this Agreement.
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GRIFFIN CAPITAL ESSENTIAL ASSET REIT, II, INC.,
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a Maryland corporation
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|
By:
/s/ Javier F. Bitar
Name: Javier F. Bitar
Title: Chief Financial Officer and Treasurer
|
[Signature Page to Second Amended and Restated Credit Agreement]
Signature page to Second Amended and Restated Credit Agreement with Griffin Capital Essential Asset Operating Partnership, L.P. (successor by merger to Griffin Capital Essential Asset Operating Partnership II, L.P.)
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KEYBANK NATIONAL ASSOCIATION,
individually and as Administrative Agent, a Swingline Lender, and Issuing Bank
|
|
By:
/s/ Christopher T. Neil
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|
Name: Christopher T. Neil
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|
Title: Vice President
|
[Signature Page to Second Amended and Restated Credit Agreement]
Signature page to Second Amended and Restated Credit Agreement with Griffin Capital Essential Asset Operating Partnership, L.P. (successor by merger to Griffin Capital Essential Asset Operating Partnership II, L.P.)
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CAPITAL ONE, NATIONAL ASSOCIATION
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|
By:
/s/ Jessica W. Phillips
Name: Jessica W. Phillips
Title: Senior Vice President
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|
Address:
Capital One, National Association.
1680 Capital One Drive, 9
th
Floor McLean, VA 22102 Telecopy No.: (703) 720-2023
|
[Signature Page to Second Amended and Restated Credit Agreement]
Signature page to Second Amended and Restated Credit Agreement with Griffin Capital Essential Asset Operating Partnership, L.P. (successor by merger to Griffin Capital Essential Asset Operating Partnership II, L.P.)
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SUNTRUST BANK
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|
By:
/s/ Nick Preston
Name: Nick Preston
Title: Director
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|
Address:
SunTrust Bank
303 Peachtree Street, 25
th
Floor
Atlanta, Georgia 30303
Telecopy No.: (___) _________
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[Signature Page to Second Amended and Restated Credit Agreement]
Signature page to Second Amended and Restated Credit Agreement with Griffin Capital Essential Asset Operating Partnership, L.P. (successor by merger to Griffin Capital Essential Asset Operating Partnership II, L.P.)
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WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Lender and a Swingline Lender
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By:
/s/ Ricky Nahal
Name: Ricky Nahal
Title: Vice President
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|
Address:
Wells Fargo Bank
1512 Eureka Road, Suite 350
Roseville, CA 95661
Telecopy No.: (___) ________
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[Signature Page to Second Amended and Restated Credit Agreement]
Signature page to Second Amended and Restated Credit Agreement with Griffin Capital Essential Asset Operating Partnership, L.P. (successor by merger to Griffin Capital Essential Asset Operating Partnership II, L.P.)
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BANK OF AMERICA, N.A., as a Lender and a Swingline Lender
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By:
/s/ Dennis Kwan
Name: Dennis Kwan
Title: Senior Vice President
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|
Address:
Bank of America, N.A.
555 California Street, 6
th
Floor
San Francisco, CA 94104
Telecopy No.: (415) 503-5055
|
[Signature Page to Second Amended and Restated Credit Agreement]
Signature page to Second Amended and Restated Credit Agreement with Griffin Capital Essential Asset Operating Partnership, L.P. (successor by merger to Griffin Capital Essential Asset Operating Partnership II, L.P.)
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U.S. BANK NATIONAL ASSOCIATION
|
|
By:
/s/ Michael F. Diemer
Name: Michael F. Diemer
Title: Vice President
|
|
Address:
U.S. Bank National Association
621 Capital Mall, Suite 800
Attn: CRE Loan Administration
Sacramento, CA 95814
Telecopy No.: (916) 498-3817
|
[Signature Page to Second Amended and Restated Credit Agreement]
Signature page to Second Amended and Restated Credit Agreement with Griffin Capital Essential Asset Operating Partnership, L.P. (successor by merger to Griffin Capital Essential Asset Operating Partnership II, L.P.)
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FIFTH THIRD BANK,
an Ohio banking corporation
|
|
By:
/s/ John Kang
Name: John Kang
Title: Officer
|
|
Address:
Fifth Third Bank
2029 Century Park east, Suite 1010
Los Angeles, CA 90067
Telecopy No.: (___) ________
|
[Signature Page to Second Amended and Restated Credit Agreement]
Signature page to Second Amended and Restated Credit Agreement with Griffin Capital Essential Asset Operating Partnership, L.P. (successor by merger to Griffin Capital Essential Asset Operating Partnership II, L.P.)
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REGIONS BANK
|
|
By:
/s/ Christopher D. Daniels
Name: Christopher D. Daniels
Title: Senior Vice President
|
|
Address:
Regions Bank
1180 West Peachtree Street
Atlanta, Georgia 30309
Attention: Christopher D. Daniels
Telecopy No.: (404) 253-5206
|
[Signature Page to Second Amended and Restated Credit Agreement]
Signature page to Second Amended and Restated Credit Agreement with Griffin Capital Essential Asset Operating Partnership, L.P. (successor by merger to Griffin Capital Essential Asset Operating Partnership II, L.P.)
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ASSOCIATED BANK, NATION ASSOCIATION
|
|
By:
/s/ Mitchell Vega
Name: Mitchell Vega
Title: Vice President
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|
Address:
Associated Bank, National Association
525 W. Monroe, 24
th
Floor
Chicago, IL 60661
Attention: Mitchell Vega
Telecopy No.: (312) 544-4663
|
[Signature Page to Second Amended and Restated Credit Agreement]
Signature page to Second Amended and Restated Credit Agreement with Griffin Capital Essential Asset Operating Partnership, L.P. (successor by merger to Griffin Capital Essential Asset Operating Partnership II, L.P.)
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BMO HARRIS BANK N.A.
|
|
By:
/s/ Michael Kauffman
Name: Michael Kauffman
Title: Managing Director
|
|
Address:
BMO Harris Bank N.A.
115 S. LaSalle Street
Chicago, Illinois 60603
Telecopy No.: (312) 461-5283
|
[Signature Page to Second Amended and Restated Credit Agreement]
Signature page to Second Amended and Restated Credit Agreement with Griffin Capital Essential Asset Operating Partnership, L.P. (successor by merger to Griffin Capital Essential Asset Operating Partnership II, L.P.)
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PMC BANK, NATIONAL ASSOCIATION
|
|
By:
/s/ David Drouillard
Name: David Drouillard
Title: Senior Vice President
|
|
Address:
PNC Bank, National Association
500 First Avenue, Fourth Floor
Pittsburgh, Pennsylvania 15219
Telecopy No.: (___) __________
|
[Signature Page to Second Amended and Restated Credit Agreement]
Signature page to Second Amended and Restated Credit Agreement with Griffin Capital Essential Asset Operating Partnership, L.P. (successor by merger to Griffin Capital Essential Asset Operating Partnership II, L.P.)
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BRANCH BANKING AND TRUST COMPANY
|
|
By:
/s/ Ahaz Armstrong
Name: Ahaz Armstrong
Title: Senior Vice President
|
|
Address:
Branch Banking and Trust Company
200 West 2
nd
Street
Winston-Salem, North Carolina 27101
Telecopy No.: (336) 733-2740
|
[Signature Page to Second Amended and Restated Credit Agreement]
Signature page to Second Amended and Restated Credit Agreement with Griffin Capital Essential Asset Operating Partnership, L.P. (successor by merger to Griffin Capital Essential Asset Operating Partnership II, L.P.)
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GOLDMAN SACHS BANK USA
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By:
/s/ Annie Carr
Name: Annie Carr
Title: Authorized Signatory
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Address:
Goldman Sachs Bank USA
200 West Street
New York, New York
Telecopy No.: (917) 977-3966
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[Signature Page to Second Amended and Restated Credit Agreement]
Signature page to Second Amended and Restated Credit Agreement with Griffin Capital Essential Asset Operating Partnership, L.P. (successor by merger to Griffin Capital Essential Asset Operating Partnership II, L.P.)
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COMERICA BANK
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|
By:
/s/ Charles Weddell
Name: Charles Weddell
Title: Vice President
|
|
Address:
Comerica Bank
3551 Hamlin Rd, MC 2390
Auburn Hills, Michigan 48326
Telecopy No.: (248) 371-7920
|
[Signature Page to Second Amended and Restated Credit Agreement]
Signature page to Second Amended and Restated Credit Agreement with Griffin Capital Essential Asset Operating Partnership, L.P. (successor by merger to Griffin Capital Essential Asset Operating Partnership II, L.P.)
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SYNOVUS BANK
|
|
By:
/s/ David Bowman
Name: David Bowman
Title: Director
|
|
Address:
Synovus Bank
800 Shades Creek Parkway
Birmingham, Alabama 35209
Telecopy No.: (___) _________
|
[Signature Page to Second Amended and Restated Credit Agreement]
Signature page to Second Amended and Restated Credit Agreement with Griffin Capital Essential Asset Operating Partnership, L.P. (successor by merger to Griffin Capital Essential Asset Operating Partnership II, L.P.)
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FIRST TENNESSEE BANK NATIONAL ASSOCIATION
|
|
By:
/s/ Thomas C. Owens
Name: Thomas C. Owens
Title: Senior Vice President
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|
Address:
First Tennessee Bank National Association
800 South Gay Street, 4
th
Floor
knoxville, Tennessee 37929
Telecopy No.: (865) 971-2468
|
[Signature Page to Second Amended and Restated Credit Agreement]
SCHEDULE 2.01
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Name
|
Revolving Commitment
|
Revolving Loan Applicable Percentage
|
2023 Term Commitment
|
2023 Term Loan Applicable Percentage
|
2024 Term Commitment
|
2024 Term Loan Applicable Percentage
|
|
KEYBANK NATIONAL ASSOCIATION
|
$76,806,904.00
|
10.24092%
|
$25,250,000.00
|
12.62500%
|
$30,413,334.00
|
7.60333%
|
|
BANK OF AMERICA, N.A.
|
$86,208,333.00
|
11.49444%
|
$25,250,000.00
|
12.62500%
|
$32,916,667.00
|
8.22917%
|
|
SUNTRUST BANK
|
$76,756,904.00
|
10.23425%
|
$25,300,000.00
|
12.65000%
|
$30,413,334.00
|
7.60333%
|
|
CAPITAL ONE, NATIONAL ASSOCIATION
|
$76,656,905.00
|
10.22092%
|
$25,400,000.00
|
12.70000%
|
$30,413,333.00
|
7.60333%
|
|
WELLS FARGO BANK, NATIONAL ASSOCIATION
|
$76,656,905.00
|
10.22092%
|
$25,400,000.00
|
12.70000%
|
$30,413,333.00
|
7.60333%
|
|
U.S. BANK NATIONAL ASSOCIATION
|
$76,656,905.00
|
10.22092%
|
$25,400,000.00
|
12.70000%
|
$30,413,333.00
|
7.60333%
|
|
FIFTH THIRD BANK
|
$80,786,905.00
|
10.77159%
|
$20,000,000.00
|
10.00000%
|
$31,683,333.00
|
7.92083%
|
|
BMO HARRIS BANK N.A.
|
$77,470,239.00
|
10.32937%
|
N/A
|
0.00000%
|
$55,000,000
|
13.75000%
|
|
REGIONS BANK
|
$55,000,000.00
|
7.33333%
|
$20,000,000.00
|
10.00000%
|
$13,333,333.00
|
3.33333%
|
|
PNC BANK, NATIONAL ASSOCIATION
|
$13,333,333.00
|
1.77778%
|
N/A
|
0.00000%
|
$26,666,667.00
|
6.66667%
|
|
BRANCH BANKING AND TRUST COMPANY
|
$13,333,333.00
|
1.77778%
|
N/A
|
0.00000%
|
$26,666,667.00
|
6.66667%
|
|
GOLDMAN SACHS BANK USA
|
$11,666,667.00
|
1.55556%
|
N/A
|
0.00000%
|
$23,333,333.00
|
5.83333%
|
|
ASSOCIATED BANK, NATIONAL ASSOCIATION
|
$22,000,000.00
|
2.93333%
|
$8,000,000.00
|
4.00000%
|
N/A
|
0.00000%
|
|
COMERICA BANK
|
N/A
|
0.00000%
|
N/A
|
0.00000%
|
$25,000,000.00
|
6.25000%
|
|
SYNOVUS BANK
|
N/A
|
0.00000%
|
N/A
|
0.00000%
|
N/A
|
0.00000%
|
|
FIRST TENNESSEE BANK NATIONAL ASSOCIATION
|
$6,666,667.00
|
0.88889%
|
N/A
|
0.00000%
|
$13,333,333.00
|
3.33333%
|
|
TOTAL
|
$750,000,000.00
|
%100.00
|
$200,000,000.00
|
%100.00
|
$400,000,000.00
|
%100.00
|
|
|
|
|
|
|
|
|
|
Name
|
2026 Term Commitment
|
2026 Term Loan Applicable Percentage
|
Total Commitment
|
Applicable Percentage
|
|
KEYBANK NATIONAL ASSOCIATION
|
$11,904,762.00
|
7.93651%
|
$144,375,000.00
|
9.62500%
|
|
BANK OF AMERICA, N.A.
|
N/A
|
0.00000%
|
$144,375,000.00
|
9.62500%
|
|
SUNTRUST BANK
|
$11,904,762.00
|
7.93651%
|
$144,375,000.00
|
9.62500%
|
|
CAPITAL ONE, NATIONAL ASSOCIATION
|
$11,904,762.00
|
7.93651%
|
$144,375,000.00
|
9.62500%
|
|
WELLS FARGO BANK, NATIONAL ASSOCIATION
|
$11,904,762.00
|
7.93651%
|
$144,375,000.00
|
9.62500%
|
|
U.S. BANK NATIONAL ASSOCIATION
|
$11,904,762.00
|
7.93651%
|
$144,375,000.00
|
9.62500%
|
|
FIFTH THIRD BANK
|
$11,904,762.00
|
7.93651%
|
$144,375,000.00
|
9.62500%
|
|
BMO HARRIS BANK N.A.
|
$11,904,761.00
|
7.93651%
|
$144,375,000.00
|
9.62500%
|
|
REGIONS BANK
|
$11,666,667.00
|
7.77778%
|
$100,000,000.00
|
6.66667%
|
|
PNC BANK, NATIONAL ASSOCIATION
|
$10,000,000.00
|
6.66667%
|
$50,000,000.00
|
3.33333%
|
|
BRANCH BANKING AND TRUST COMPANY
|
$10,000,000.00
|
6.66667%
|
$50,000,000.00
|
3.33333%
|
|
GOLDMAN SACHS BANK USA
|
N/A
|
0.00000%
|
$35,000,000.00
|
2.33333%
|
|
ASSOCIATED BANK, NATIONAL ASSOCIATION
|
N/A
|
0.00000%
|
$30,000,000.00
|
2.00000%
|
|
COMERICA BANK
|
$5,000,000.00
|
3.33333%
|
$30,000,000.00
|
2.00000%
|
|
SYNOVUS BANK
|
$25,000,000.00
|
16.66667%
|
$25,000,000.00
|
1.66667%
|
|
FIRST TENNESSEE BANK NATIONAL ASSOCIATION
|
$5,000,000.00
|
3.33333%
|
$25,000,000.00
|
1.66667%
|
|
TOTAL
|
$150,000,000.00
|
%100.00
|
$1,500,000,000.00
|
%100.00
|
